Petition for Writ of Certiorari — N. E. v. Hedges

-6-

“fundamental right,” whether strict scrutiny or rational-basis

scrutiny should apply, whether the state met its burdens to

demonstrate “narrow tailoring” and a “compelling state

interest,” or any other issue raised in the combined 90 pages

of the “Appellant’s Brief” and “Appellant’s Reply Brief,”

the panel decision reduced the issues in this case to the

following “Straw Man” argument:

Plaintiff makes a kind of ‘fairness’ or ‘reciprocity’

argument. *** His ‘fairness’ argument seems to be

that he should receive this constitutional right [i.¢.,

the right to decide not to become a parent after

conception] in exchange for the woman’s right to

abort her pregnancy.

(App. B4-B5S). The sole sentence in the Sixth Circuit's

decision which references Due Process and levels of

scrutiny reads as follows:

Courts have never found that legal classifications

based on this biological relationship of fathers

and their children were subject to a high level of

scrutiny. See Parham v. Hughes, 441 U.S. 347,

355-57 (1979) (upholding wrongful death

statute granting cause of action only to unwed

mothers, not unwed fathers, and imposing low

level of scrutiny), Rivera v. Minnich, 483 U.S.

~ =

574, 580 (1987) (“putative father has no

legitimate right and certainly no liberty interest in

avoiding financial obligations to his natural child

that are validly imposed by state law”);

Developments in the Law — The Constitution

and the Family, 93 HARV. L. REV. 1156,

1270-83 (1980).

(App. B6).

The Sixth Circuit concluded its analysis by

upholding the District Court’s award of sanctions against

petitioner: “We cannot imagine that any federal court

would agree with plaintiff's principle...” (App. B8-B9).

Petitioner filed a “Petition for Panel Rehearing and

Suggestion for Rehearing En Banc” which the Sixth Circuit

denied on-March 14, 2005. (App. Al-A2).

Vv.

REASONS FOR GRANTING THE PETITION

If women have the right to choose if they become

parents, men [should] have that right too. There is

a connection between legalizing abortion for

women and ending of paternity suits for men.

Giving men their own choices would not deny

choices to women. It would only eliminate their

expectation of having those choices financed by

men.

-- Former N.O.W. President Karen

DeCrow, Sexist Justice (Random

House 1974).

The Sixth Circuit has decided an important issue of

federal Constitutional law that has not been - but should be

- settled by this Court: where one parent enjoys a

fundamental right to avoid biological or legal parenthood —

a fundamental right of parental, family, marital,

reproductive, procreative, and personal privacy to choose

when and with whom to become a parent — that right must

be fundamenial to each parent. Yet by ruling that a state

may interfere in the status quo of private family decisions

and force someone to become a parent in the eyes of the

law, the Sixth Circuit thumbs its nose at this fundamental

right to “procreational privacy.”

By refusing to discuss (or even acknowledge)

petitioner’s position that a male has a post-conception

fundamental right to decide whether to become a parent, the

Sixth Circuit’s decision commits two disservices. First, the

Sixth Circuit’s decision implies that no such right exists

-9-

when, in truth, this fundamental right is an inescapable

outgrowth of numerous Supreme Court cases including

Planned Parenthood v. Casey, Planned Parenthood v.

Danforth, and several others.

Second, the Sixth Circuit rewrites the standard for

imposition of sanctions on an unsuccessful plaintiff, the

Sixth Circuit’s opinion replaces this court’s Hughes v.

Rowe, 449 U.S. 5 (1980) standard with a new “We cannot

imagine...” standard. In essence, the Sixth Circuit's opinion

sends a foreboding message that not only will constitutional

claims about procreational privacy for men not be

acknowledged, anyone who dares tread on such sacred

ground will be punished harshly with sanctions. If this is the

intended message ~ if an entire gender’s post-conception

procreational privacy rights are to be discarded and

invalidated — this is a step that should be taken by the

Supreme Court.

A. Petitioner has a “Fundamental Right” to

Decide for Himself When, Where, and With Whom He

Will Beget a Child and Become A Father

Petitioner’s position in this case can be summarized

with the following set of premises and the resulting

conclusion:

-10-

P,;: . Parents enjoy a fundamental right to

procreational privacy which includes the night to

decide not to become a parent even after conception.

P,: Though this fundamental right has only found

voice as applied to female biological parents, it must

extend to each biological parent.

P;:; Kentucky’s statutory scheme imposes

parenthood on biological fathers while denying them

any right or opportunity to avoid parenthood after

conception.

Therefore: Kentucky's statutory scheme violates

this biological father’s fundamental right to procreational

privacy.

1. The Right to Procreational Privacy

The right to privacy/autonomy includes the right to

make one’s own decisions about procreation and _

parenthood free from government interference. Our

Constitution jealously protects “the private realm of family

life which the state cannot enter.” Prince v. Massav/usetts,

321 U.S. 158, 166 (1944). Time and time again, the

Supreme Court has acknowledged:

-l1l-

the right of the individual, married or single, to be

free of unwarranted governmental intrusion into

matters so fundamentally affecting a person as the

decision whether to bear or beget a child.

Eisenstadt v. Baird, 405 U.S. 438, 453 (1971). This “right

of personal privacy” — first recognized in Griswold v.

Connecticut, 381 U.S. 479 (1965) ~ includes the

recognition that an individual’s “freedom of personal choice

in matters of marriage and family life” occupies a central

place among the liberties protected by the due process

clause. Akron v. Akron Center for Reproductive Health

Inc., 462 U.S. 416, 426 (1983). While the Court has never

defined the specific parameters of the “right of privacy,”

that liberty

includes ‘the interest in independence in making

certain kinds of important decisions.’ While the

outer limits of this aspect of [protected liberty]

have not been marked by the Court, it is clear that

among the decisions that an individual may make

without unjustified government interference are

personal decisions ‘relating to marriage,

procreation, contraception, family relationships,

and childrearing and education.’

~12-

Carey v. Population Services International, 431 U.S. 678,

684-85 (1977) (citations omitted).

The Sixth Circuit’s decision, though, implies that

this fundamental right to procreational privacy stops at the

male parent’s decision whether or not to have sex.

However, this Court has never held that a parent’s liberty

interest in parenthood stops at the decision whether to have

sex; indeed, ever since Roe v. Wade, the federal courts have

spent years demonstrating that sex is not sufficient to act as

a waiver of a mother’s constitutional rights; petitioner

seeks judicial recognition that fathers are equally deserving

of constitutional protection. Justice O’Connor’s majority

opinion in Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833 (1992) proves

instructive:

These are intimate views with infinite

variations, and their deep, personal character

underlay our decisions in Griswold,

Eisenstadt, and Carey. The same concerns

are present when the woman confronts the

reality that, perhaps despite her attempts to

avoid it, she has become pregnant.

Id. at 853 (emphasis added). The Casey Court recognized

that the decision whether to have sex is not the end-all of

~19e

this fundamental rights analysis. If a woman’s right to

decide whether to be a mother survives failed efforts to

avoid conception, then it is inescapable that a father’s right

to decide whether to be a father must also survive failed

efforts to avoid conception.

2. Extending the Right to Men

The Sixth Circuit’s opinion next declares that the

biological relationship | bicteciest Others ond Gaats

Sixth Circuit ignores several of this Court’s opinions.

In Planned Parenthood v. Danforth, 428 U.S. 52, 69

(1976), the Supreme Court took the next step by recognizing

a father’s “deep and proper concern and interest” in his wife’s

pregnancy and in the fetus she carries. Justice Stewart

elaborated further, stating “that a man’s right to father

children and enjoy the association of his offspring is a

constitutionally protected freedom” and that his Due Process

rights compete with the mother’s rights rather than being

subsumed by them. /d. at 90 (Stewart, J., concurring). And in

dissent, three more Justices stated that a father’s interest in

the decision whether to carry his child to term “may be

unmatched by any other interest in his life.” /d. at 93 (White,

J., dissenting).

=ige

The majority opinion in Planned Parenthood v. Casey,

505 U.S. 833 (1992), goes even further by equating the

mother’s and father’s respective fundamental rights:

If this case concerned a State’s ability to require

the mother to notify the father before taking

some action with respect to a living child raised

by both, it would be reasonable to conclude,

generally, that the father’s interest in the welfare

of the child and the mother’s interest are equal.

Before birth, however, the issue takes on a

different cast. It is an inescapable biological fact

that state regulation with respect to the child a

woman is carrying will have a far greater impact

on the mother’s liberty than on the father’s. The

effect of state regulation on a woman’s liberty is

doubly deserving of scrutiny such a case, as

the State has touched not only upon the private

sphere of the family, but upon the very bodily

integrity of the pregnant woman. The Court

has held that, when the wife and the husband

disagree on this decision, the view of only one of

the two marriage partners can prevail. Inasmuch

as it is the woman who physically bears the child

and who is the more directly and immediately

affected by the pregnancy, as between the two,

#15-

the balance weighs in her favor. * * * Ifthe

right of privacy means anything, it is the right of

the individual, married or single, to be free from

unwarranted governmental intrusion into matters

so fundamental as the decision whether to bear

or beget a child. The Constitution protects

individuals, men and women alike, from

unjustified state interferenc. even when that

interference is enacted into law for the benefit

of their spouses.

Id. at 895-96 (emphasis added).' In short, the mother’s choice

In addition to these, the Supreme Court has decided at least six other cases

which either explicitly or unplicitly recognize a biological father’s

constitutional rights in decisions regarding the nature and extent of his

parenthood. See Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (man’s

decisions on “procreation, childbirth, child-rearing, and family

relationships” are “part of the fundamental ‘right of privacy."”), Stanley v.

Illinois, 405 U.S. 645, 651 (1°72) (Due Process clause entitled father to

fitness hearing before his illegitimate children could be removed from his

custody, “The private interest here, that of a man in the children he has sired

and raised, undeniably warrants deference and, absent a powerful

countervailing interest, protection.”), Quilloin v. Walcott, 434 U.S. 246,

255 (1978) (recognizing biological father’s substantive due process rights "

but holding those rights not impermissibly burdened), Caban v.

Mohammed, 441 U.S. 380 (1979) (invalidated statute under which

biological father’s children could be adopted without his consent), Lehr v.

Robertson, 463 U.S. 248, 261 (1983) (recognizing constitutionally-

prevails because the abortion decision implicates a second

fundamental right for her, i.e., the right to bodily integrity.

But the male’s fundamental right to “basic control

over [his] life” does not just vanish, that a pregnant woman's

wishes trump the father’s wishes at that stage of parenthood is

an accident of biology — not a demeaning of the father’s

fundamental rights. Just as a woman has the right to decide

not to be a mother even after conception, the sperm-donor’s

decision whether to be a father after conception is

fundamentally his. Though he cannot manifest that right by

compelling an abortion, the case at bar was to explore his

alternatives.

3. How Kentucky's Statutory Scheme Violates the

Fundamental Right

When a putative father is dragged into a paternity

suit, what is at stake

protected parental nights for fathers who participate m raising thei,

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

(majority believed that under proper curcumstances, biological father has

substantive due process nght to dictate whether his child will be adopted by

someone else (four justices in dissent, Stevens, J, agreeing but concurring

in result)).

= >

is not merely the prospect of a discrete payment in

satisfaction of a limited legal obligation. Rather, it

is the imposition of a lifelong relationship with

Rivera v. Minnich, 483 U.S. 574, 583 (1987\(Brennan, J.,

dissenting).

Kentucky’s paternity, child support, and

adoption/termination of parental nghts statutes violate

petitioner’s fundamental right not to be a father in four

ways. First, Kentucky’s laws create a mechanism for the

biological mother to enforce her right to decide whether or

not to become a mother (abortion and adoption) but fail to

afford a similar mechanism for enforcement of the biological

father’s right. (App. F 1).

Second, Kentucky’s termination of rights statutes

create a process which in practice gives the biological

mother the right to terminate her own rights and the

biological father’s rights at any time but fails to afford the

biological father the right to terminate his own rights under

any circumstances without the mother’s consent.

Third, Kentucky's adoption statutes and “de facto

custodian” statutes give the biological mother and a child’s

-18-

step-father the exclusive right to decide whether petitioner's

mechanism by which to rompel or even participate in that

decision. (App. F1, G1).

Fourth, by forcing him to undergo paternity testing

against his will, Kentucky’s paternity statutes force a formal

recognition of parenthood on unwilling men. Petitioner did

not want to become a father, and petitioner was not a father

in the eyes of society or in the eyes of the law for the first

seven years of minor E.D.L.’s life, under the status quo,

petitioner was not a father. It was not unti] Kentucky

forced petitioner to participate in paternity proceedings that

petitioner became a father in the eyes of society and in the

eyes of the law. It is that interference in the status quo

by the state that violated petitioner’s procreational

privacy.

a The Import of the Sixth Circuit's Decision

The Sixth Circuit’s decision in this case is in direct

conflict with this Court’s “procreational privacy” <ases

including Roe v. Wade, Casey v. Planned Parerithood, and

their progeny. This court should accept review in order to

clarify the reach of its “procreational privacy” cases and to

resolve this important issue of constitutional law.

-19-

B. The Sixth Circuit’s Decision on Sanctions Directly

Contradicts Controlling Supreme Court Precedent

The relevant portion of the Sixth Circuit’s opinion

reads:

In the present case, the facts are not in dispute.

The plaintiff presents simply a novel legal

theory.... * * * It is a theory so foreign to our

legal tradition that it has no “foundation,” no

chance of success. We cannot imagine that any

federal court would agree with plaintiff's

principle that the concept of “procreative

privacy” should be stretched [in the manner

suggested]... |

(App. B8-B9).

Initially, note that the panel’s newly-announced

standard directly contradicts the standard used by this Court.

In Hughes v. Rowe, 449 U.S. 5 (1980), this Court held that

fees may be assessed against a §1983 plaintiff only under the

following “stringent” standard:

[t}he plaintiff's action must be meritless in the

sense that it is groundless or without foundation.

-20-

The fact that a plaintiff may ultimately lose his

case is not in itself a sufficient justification for

the assessment of fe.+.... [A] plaintiff should not

be assessed his opponent’s attorney’s fees unless

& court finds that his claim was frivolous,

unreasonable, or groundless, or that the plaintiff

continued to litigate after it clearly became so. . .

Id. at 14-15 (citations omitted). It is unclear how to reconcile

the Sixth Circuit’s new “We cannot imagine...” standard with

“The fact that a plaintiff may ultimately lose his case is not in

itself a sufficient justification for the assessment of fees. ...”

Id. at 15.

Likewise, a “plaintiff should not be assessed his

opponent's attorney fees unless the court finds the claim was

groundless at the outset or ‘that the plaintiff continued to

litigate after it clearly became so.”” Smith v. Smythe-Cramer

Co., 754 F.2d 180, 183 (6" Cir. 1985).

? This court's admonition rings particularty true here: “it is important that a

district court resist the understandable temptation to engage w post hoc

- reasoning by concluding that, because a plamtiff did not ulumately prevail,

hus action must have been unreasonable or without foundation.”

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978).

-21-

Nothing in the Sixth Circuit’s decision (nor the

District Court’s opinion, for that matter) calls into question

petitioner’s decision to file suit, and no one has suggested that

the state of the law in this area changed significantly during

the pendency of this action.’ Without these findings,

precedent:

Judge made a finding that the claims were

“groundless at the outset” nor a finding that

Riddle and Irvine continued to litigate after it

“clearly” became so. * * * There is no finding by

the lower court that the filing of the Complaint

was an egregious case of misconduct by

Plaintiffs. The District Court’s finding that

Riddle and Irvine’s Complaint was frivolous and

groundless and that Defendants be awarded fees

under 42 U.S.C. § 1988 is not supported by the

record.

> The District Court did not dispute that petitioner’s views about the social

injustice of “forced fatherhood” are “firmly held”; similarly, the District

Court seemed not to disagree that this lawsuit represents petitioner's “bona

fide attempts to expand the realm of constitutional law to embrace his

theory....” (App. C4). Indeed, cach and every one of the District Court's

“findings” addressed petitioner's failure to develop an argument — not

whether it was reasonable for him to file suit in the first place.

-22-

Riddle v. Egensperger, 266 F.3d 542, 547 (6th Cir. 2001).

See also Tahfs v. Proctor, 316 F.3d 584, 590 (6" Cir. 2003)

(District Court abused discretion in awarding fees against

unsuccessful plaintiff); Dubuc v. Green Oak Twnshp., 312

F.3d 736 (6" Cir. 2002) (same result in §1983 action where it

appeared District Court attempted to “teach Appellant a

lesson....”).

Perhaps the Sixth Circuit meant that petitioner’s views

are so repugnant that they will be met with disgust and vitriol

by every judge who hears them. Though unnecessary to

rehash the dangers of punishing litigants for bringing

unpopular views to court, note the view of the Washington

Court of Appeals when confronted with similar (Equal

Protection) issues:

The mother and guardian urge that this court

determine their attorneys’ fees to be assessed

against the father because the issues presented

by the father on appeal are frivolous. We

conclude that the appeal is not frivolous.

[Iindeed, the issues in this case are issues of

first impression in this State and present

debatable questions of substantial public

importance.

Linda D. v. Fritz C., 687 P.2d 223, 229-30 (Wash. App.

-23-

1984) (emphasis added). Not only does the Sixth Circuit's

opinion concede that this is the first time these issues have

reached a federal court, but no one can dispute that the issues

of child support and procreational autonomy for men are of

“substantial public importance.”

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

P.O. Box 4144

Carmel, IN 46082-4144

317.598.1847

317.598.1846 (fax)

TABLE OF APPENDIX CONTENTS

U.S. COURT OF APPEALS - 6™ CIRCUIT:

Order [Denying Rehearing],

Ua I BG i iiiecccceenctenietncstecectscicinca Al-A2

Opinion [for publication),

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U.S. DISTRICT COURT, EASTERN DISTRICT

OF KENTUCKY, FRANKFORT DIVISION:

Memorandum Opinion and Order [awarding Attormeys’

fees], filed January 16, 2004.00... .cccccccceceeceeeeeees C1-C6

Memorandum Opinion and Order [dismissing case},

i EP ee D1-D30

AMENDMENTS AND STATUTES:

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SE SN SHUI, NN ciccetthcecstectinnieiiseiiisilitiaiidsatientabcieahiil F1-F3

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FILED

MAR 14 2005

LEONARD GREEN, Clerk

Nos. 03-6680/04-5156

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

N.E., as biological father of E.D.L., a minor,

Plaintiff-Appellant,

vs.

CINDY J. HEDGES, et al,

Defendants-Appellees.

ORDER

BEFORE: MERRITT, GIBBONS, and ROGERS, Circuit

Judges.

The court having received a petition for rehearing en banc,

and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a

vote on the suggestion for rehearing en banc, the petition

for rehearing has been referred to the original panel.

A-2

The panel has further reviewed the petition for rehearing

and concludes that the issues raised in the petition were

fully considered upon the original submission and decision

of the cases. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

s/ Leonard Green, Clerk

B-1

FILED

DEC 20 2004

LEONARD GREEN, Clerk

RECOMMENDED FOR FULL-TEXT PUBLICATION

Case Nos: 03-6680; 04-5156

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

N_E., as biological father of E.D.L., a minor,

Plaintiff-Appellant,

v.

CINDY J. HEDGES, BRIAN HEDGES, and

JAMES C. MONK, in his official capacity as county

attorney for Carroll County,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Kentucky at Frankfort. No. 03-00020—

Joseph M. Hood, District Judge.

Submitted: December 10, 2004

Decided and Filed: December 20, 2004

Before: MERRITT, GIBBONS, and ROGERS, Circuit

Judges.

OPINION

B-2

MERRITT, Circuit Judge. Plaintiff-appellant, a lawyer,

brings his own pro se action and appeal against the mother

of his child born out of wedlock and her husband, the

stepfather of the child. He also sues James Monk, the

county attorney of Carroll County, Kentucky, in his official

capacity. The theory of the action is that the Kentucky

statutes requiring a natural father to pay child support for

his son born out of wedlock, as enforced in the state courts

in this case by Monk,’ violate the substantive due process

protections of the Fourteenth Amendment. The Kentucky

courts have ordered plaintiff to pay $851 per month in child

support. The District Court dismissed plaintiff’ s complaint

for “failure to state a claim upon which relief can be

granted” under Rule 12(b)(6) of the Federal Rules of Civil

Procedure and awarded costs and attorneys fees to

defendants under 42 U.S.C. § 1988. The essential holding

of District Judge Hood was stated as follows:

’ Ky. Rev. Stat. § 406.021 provides the county attorney with the

authority to file paternity actions im the district courts of

Kentucky seeking to enforce child support obligations established by

the Kentucky Cabinet for Families and Children under

§ 405.430(4) of Kentucky law. These state paternity and child support

actions are encouraged and supported by the original Child Support

Enforcement Act, 42 U.S.C. §§ 651-669, an act interpreted and

explained in Blessing v. Freestone, 520 U.S. 329, 333-34(1997) ( “But

the state [under the federal law] must do more than simply collect

overdue support payments; it must also establish a comprehensive

system to establish paternity, locate absent parents, and help families

obtain support orders.”)

B-3

Plaintiff has identified no action taken by a state

actor that impacted in any way his choice to father

a child. As he complains of actions taken under

the Commonwealth’s statutes that permit the

establishment of paternity and the imposition and

enforcement of child support obligations, the

Court sees no evidencg that the state required him

to engage in the sexual \activity that resulted in the

conception of his son. Further he has identified no

action taken by a state actor that interfered in any

way with his choice to use or not to use

contraceptive methods—or additional

contraceptive methods, as the case may be—

during sexual activity to avoid his sexual partner’s

resulting pregnancy. Accordingly, he cannot state

a claim for a violation of his substantive rights

under the Fourteenth Amendment by the

application of the laws of Kentucky for

establishing paternity and imposing and enforcing

child support

obligations.

JA 81-82.

Although plaintiff sought money damages of $1

million and injunctive relief requiring the stepfather to

adopt the child and various other forms of relief in his

original complaint, he limits his appeal to a claim for

injunctive relief based on a declaration that Kentucky

B4

paternity and child support laws are invalid. He also seeks

an order enjoining Monk from enforcing child support

orders .mtered in his case in Kentucky courts. The parties

have filed extensive briefs but waived oral argument.

Plaintiff makes a kind of “fairness” or “reciprocity”

argument. His basic claim is that the mother of the child

“fraudulently induced” sexual intercourse, claiming that her

birth control pills would prevent pregnancy, then left the

state, married another man, and delayed seeking child

support for several years after birth. The plaintiff argues

that the Kentucky paternity and child support laws are

inconsistent with sexual and procreative “privacy” rights

recognized by the Supreme Court, e.g., Griswold v.

Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S.

113 (1973), Planned Parenthood of Central Missouri v.

Danforth, 428 U.S. 52 (1976); Planned Parenthood of

‘Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

The right to procreative privacy, he argues, “includes the

right to decide not to become a parent even after

conception,” and “must extend to both biological parents,”

so that “Kentucky's statutory scheme” must be invalidated

because it “imposes parenthood on biological fathers while

denying them any right or opportunity to decide not to

become a parent after conception.” (Appellant’s Reply _

Brief, p. 3.).? His “fairness” argument seems to be that he

? Plaintiff's argument is succinctly stated at p. 6 of his reply brief as

follows:

B-5

should receive this constitutional right in exchange for the

woman’s right to abort her pregnancy.

State requirements, and federal encouragement, of

child support from unwed fathers has a long historical

tradition. It emanates necessarily from the biological

relationship, a relationship that may have only marginal

[I}t is disingenuous to pretend that imposing a child support

obligation is separate and distinct from forcing fatherhood

on an unwilling male. Even if Kentucky climuinated all child

support obligations tomorrow, its paternity laws would

remain unconstitutional. It is the fact that Kentucky forced

N_E. [p)aintiff] to participate in paternity proceedings which

proved his fatherhood that renders the statutory scheme

financial well-being of out-of-wedlock children is

off the streets and require cach of them to financially

support wards of the state, rather, Kentucky reserves that

burden for those men it has forced to become fathers. The

ONLY reason N_E. is forced to financially support minor

E.D.L. is because of the finding of paternity. It was

unconstitutional for Kentucky to force parenthood on N_E.

forced fatherhood, it is therefore unconstitutional for

Kentucky to impose a child support order on N_E.; the

issues are inextricably intertwined.

This argument appears to be based on arguments for new state

legislation in a law review article, Melanie McCulley, The

Male Abortion: The Putative Father's Right to Terminate His Interests

in and Obligations to the Unborn Child, 7 1.L. & POL’Y 1 (1998).

B-6

importance for the male in some cases like the one before

us in which the father seeks to remove himself completely

from the child. Courts have never forind that legal

classifications based on this biological relationship of

fathers and their children were subject to a high level of

scrutiny. See Parham v. Hughes, 441 U.S. 347, 355-57

(1979) (upholding wrongful death statute granting cause of

action only to unwed mothers, not unwed fathers, and

imposing low level of scrutiny), Rivera v. Minnich, 483

U.S. 574, 580 (1987) (“putative father has no legitimate

right and certainly no liberty interest in avoiding financial

obligations to his natural child that are validly imposed by

state law”); Developments in the Law — The Constitution

and the Family, 93 HARV. L. REV. 1156, 1270-83 (1980).

The paternity requirement emanates primarily from the

state’s power to intervene under the parens patriae doctrine,

a doctrine that enforces the duties of biological parents, not

their constitutional rights.’ The parens patriae authority was

granted by the English sovereign to the chancery courts to

> The historical parens patriae power discussed here should not be

action, a type of action not necessarily related to either parents or

children. Used in the modern sense, parens patriae is “[a) doctrine by

which a government has standing to prosecute a lawsuit on behalf of a

citizen... .” BLACK’S LAW DICTIONARY 1137(7th ed. 1999). For

example, under section 4c of the Clayton Act, “[a]ny attorney gencral

of a State may bring a civil action in the name of such State, as parens

" patriae on behalf of natural persons residing in such State __ for injury

sustained by such natural persons to they property by reason of any

violation of section 1 to 7 of this title.” 15 U.S.C. § 15¢ (2000).

B-7 ‘

act as “genera! guardians of all infants,” 3 William

Blackstone, Commentaries *47. Under this doctrine, the

children’s welfare rather than the parents’ rights became

the most important factor, Developments in the Law — The

Constitution and the Family, supra, at 1221. American

courts have generally recognized the doctrine and regarded

as an important interest the fact that “the Staie is entitled to

adjust its legal system to account for children’s

vulnerability . . . .” Bellotti v. Baird, 443 U.S. 622, 635

(1979).

As the plaintiff concedes, there are no judicial

decisions recognizing a constitutional right of a man to

terminate his duties of support under state law for a child

that he has fathered, no matter how removed he may be

emotionally from the child. Child support has long been a

tax fathers have had to pay in Western civilization. For

reasons of child welfare and social utility, if not for moral

reasons, the biological relationship between a father and his

offspring — even if unwanted and unacknowledged —

remains constitutionally sufficient to support paternity tests

and child support requirements. We do not have a system

of government ‘ike ancient Sparta where male children are

taken over early in their lives by the state for military

service. The biological parents remain responsible for their

welfare. One of the ways the state enforces this duty is

through paternity laws. This responsibility is not growing

weaker in our body politic, as plaintiff seems to suggest,

but stronger as the passage of the Child Support Recovery

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Act of 1992, Pub. L. No. 102-521, the Deadbeat Parents

Punishment Act of 1998, Pub. L. No. 105-187, and the

Child Support Performance and Incentive Act of 1998, Pub.

L. No. 105-200, would indicate. The sexual privacy cases

referred to by plaintiff do not give either biological parent

the right to escape responsibility after the child is born.

Neither the laws of biological reproduction nor the Due

Process Clause recognize the “fairness” arguments plaintiff

raises. Reproduction and child support requirements occur

without regard to the male’s wishes or his emotional

attachment to his offspring.

With respect to the District Court’s award of costs

and attorneys fees in civil rights cases under 42 U.S.C. §

1988 (court may award attorney's fees to the “prevailing

party” in “its discretion”), the appropriate standard provides

that the court may award such fees to a defendant if “the

plaintiff s action was frivolous, unreasonable, or without

foundation, even though not brought in subjective bad

faith.” Wayne v. Village of Sebring, 36 F.3d 517, 530 (6th

Cir. 1994). In the present case, the facts are not in dispute.

The plaintiff presents simply a novel legal theory, a theory

that would invalidate the paternity and child support laws

of the fifty states and the federal acts on child support. The

theory is that unwed fathers, as a matter of reciprocity,

should also be given the choice to deny any financial

responsibility for the child’s existence. It is a theory so

foreign to our legal tradition that it has no “foundation,” no

chance of success. We cannot imagine that any federal

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court would agree with plaintiff's principle that the concept

of “procreative privacy” should be stretched to include the

constitutional right for a father to receive the constitutional

equivalent of the termination of the mother’s pregnancy by

allowing him the right to deny paternity and deny the duty

of financial support. The District Court therefore did not

ubuse its authority to award fees under § 1988.

Accordingly, the judgment of the District Court is

AFFIRMED

C-1

Eastern District of Kentucky

FILED

JAN 16 2004

AT FRANKFORT

LESLIE G. WHITMER

CLERK U.S. DISTRICT COURT

United States District Court

Eastern District of Kentucky

_ Frankfort

CIVIL ACTION No, 03-20-JMH

N.E., as biological father of E.D.L., a minor,

Plaintiff,

CINDY J. HEDGES, et al,

Defendants.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendants’ motions for

an award of attorney’s fees [Record Nos. 40 and 41].

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Plaintiff has responded [Record No. 42]. The Court being

adequately advised, these motions are now ripe for

decision.

Defendants request that the Court enter an order directing

Plaintiff to pay their reasonable attorneys’ fees pursuant to

Fed. R. Civ. P. 54(dX(2), 42 U.S.C. § 1988, and 28 U.S.C. §

1927. For the reasons stated below, the Court believes that

the requested attorneys’ fees are warranted under 42 U.S.C.

§ 1988.

1. ATTORNEYS’ FE&S FOR PREVAILING

DEFENDANTS LIMITED TO THOSE 42 U.S.C. §

1983 ACTIONS WHICH ARE FRIVOLOUS,

UNREASONABLE, OR WITHOUT

FOUNDATION.

42 U.S.C. § 1988 provides for attorney's fees, in relevant

part, as follows:

In any action or proceeding to enforce a

provision of sections... 1983... of this title. ..,

the court, in its discretion, may allow the

prevailing party, other than the United

States, a reasonable attorney's fee as part of

While Defendants have, indeed, prevailed on the merits in

this matter, it is not enough to simply “win.” Rather,

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prevailing defendants in a § 1983 action may recover

attorney’s fees from the plaintiff only if the Court finds that

“the plaintiff s action was frivolous, unreasonable, or

without foundation, even though not brought in subjective

bad faith.” Christiansburg Garment Co. v. EEOC, 434

U.S. 412, 421 (1978) (articulating standard for attorney’s

fees available to the prevailing defendant in action brought

under Title VII of the Civil Rights Act of 1964), Hughes v.

Rowe, 449 U.S. 5, 14-15 (1980) (adopting same standard

for prevailing defendants in matters brought under 42

U.S.C. § 1983).

This is to say that “[t}he plaintiff's action must be meritless

in the sense that it is groundless or without foundation.”

Hughes, 449 U.S. at 15. Thus, Plaintiff is correct when he

argues that his action was not meritless simply because his

theory might represent an unpopular view or have been

based on facts that were “somewhat questionable or

unfavorable at the outset of litigation.” Houston v. Norton,

215 F. 3d. 1172, 1175 (10 Cir. 2000).

Nonetheless, the Court is of the opinion that Plaintiff's

claims were, at best, frivolous and, at worst, without any

foundation whatsoever. In either event, they are certainly

of the nature contemplated by Christianburg Garment Co.

and Hughes. His belief — no matter how firmly held — that

Kentucky's child support laws represent a “systemic social

injustice” cannot a wrong of constitutional proportions

make, and his allegedly bona fide attempts to expand the

Cag

realm of constitutional law to embrace his theory cannot.

make the case ariy less frivolous. [Response at 3.] His

firmly held belief could not make the Fifth Amendment's

protections, directly applicable only to actions taken by the

federal government, expand to encompass county or state

government officials. The Court recalls that Plaintiff,

notwithstanding his many pages of pleadings, did not and

could not identify a state action which interfered with any

substantive right or ability to become or avoid becoming a

father. Similarly, his firmly held belief could not mask the

fact that his claim of a violation of his Fourteenth

Amendment right to equal protection of the law was

without any basis whatsoever. Notwithstanding the fact

that the Court was able to conduct a very basic analysis of

the situation, a fact the Plaintiff no doubt believes to lend

some credence to his claim, he was unable to muster up any

argument to support his claim — not identifying a distinct

and unequally treated class of which he purported to be a

part, a fundamental right that was in any way impacted, or

a theory by means of which the Court could at least muse

upon the legislature’s rational basis for the allegedly

unconstitutional statutes. There is no doubt in the Court’s

mind that his claims were frivolous and, thus, warrant an

award of attorneys’ fees for the prevailing Defendants in

this matter.

2. ATTORNEYS’ FEES CLAIMED BY

DEFENDANTS MUST BE REASONABLE

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A reasonable attorney’s fee under sec. 1988 is determined

by the reasonable hourly market rate in the relevant

community for similar work multiplied by the amount of

hours reasonably expended. Blum v. Stenson, 465 U.S.

886, 893 (1984); Hadix v. Johnson, 65 F.3d 532, 535-36

(6™ Cir. 1995). Plaintiff has not objected to the hourly fees

proposed by counsel for Defendants, and the Court finds

that the fees suggested are, indeed reasonable.

Plaintiff does, however, object to the 3.5 hours reported by

Hon. Dawahare for her defense of Defendants Brian and

Cindy Hedges as unreasonable, pointing out that the

dispositive and procedural motions and the motion for

attorney’s fees submitted on their behalf were identical to

those submitted by Defendant Monk. He theorizes that she

has not generated one single word of original research or

writing on their behalf, choosing instead to submit a

carbon-copy of those pleadings produced by counsel for

Defendant Monk. Even if this is the case, the Court is of

the opinion that 3.5 hours is not an unreasonable amount of

time to contemplate and decide to adopt the rationale

articulated in the motions submitted by Defendant Monk’s

counsel, particularly considering the length of the

memoranda submitted in support of those motions and the

depth of analysis contained therein. Finding that the hourly

fee and the amount of time expended by all counsel on

those motions was not unreasonable under the

circumstances, the Court shall grant their requests.

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3. CONCLUSION

For the reasons stated above, Defendants’ motions for

attorneys’ fees shall be granted.

Accordingly, IT IS ORDERED:

(1) that Defendants’ motions for an award of attorney's

fees [Record Nos. 40 and 41] be, and the same hereby are,

GRANTED.

(2) that Plaintiff PAY the sum of $6,150.00 to Defendant

Monk; and

(3) that Plaintiff PAY the sum of $1,253.99 to Defendants

Cindy and Brian Hedges.

This the 16" day of January 2004.

Signed by: Joseph M. Hood, United States District Judge

D-1

Eastern District of Kentucky

FILED

DEC 05 2003

AT FRANKFORT

LESLIE G. WHITMER

CLERK U.S. DISTRICT COURT

United States District Court

Eastern District of Kentucky

Frankfort

CIVIL ACTION No. 03-20-JMH

N.E., as biological father of E.D.L., a minor,

Plaintiff,

vs.

CINDY J. HEDGES, et al,

Defendants.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the motions of Defendant

James C. Monk and Defendant Brian and Cindy Hedges to

dismiss or for summary judgment [Record Nos. 7 & 12].

Plaintiff has responded [Record no. 28], and Defendants

D-2

have replied [Record Nos. 34 & 36].' This matter is ripe

for a decision.

I. BACKGROUND

Plaintiff is the biological father of a child, E.D.L.

Defendant Cindy Hedges is the biological mother of E.D.L.

The Court understands that Defendant Brian Hedges is

E.D.L.’s stepfather, by virtue of his marriage to Cindy

Hedges. Plaintiff describes him as the “de facto father,

guardian, and custodian of E.D.L...since 1994.”

[Complaint at 6.] Defendant James C. Monk serves as

county attorney for Carroll County,Kentucky, and on June

27, 2001, he initiated paternity proceedings against Plaintiff

under applicable Commonwealth statutes for the purposes

of establishing paternity of E.D.L. and obtaining a child

support order against Plaintiff. Plaintiff's paternity of

E.D.L. was established in that proceeding, Carroll County

District Court Case No. 01-J-00060, and arrearages and

garnishment were imposed by virtue of the same.

In his complaint, Plaintiff alleges that the automatic

attachment of financial liability on a putative father upon a

finding of paternity under Ky. Rev. Stat. 405.00 ef seq., and

' Plaintiff has also filed a motion for leave to file a surreply [Record

No. 35]. Noting that neither the applicable Federal Rules of Civil

Procedure nor the Local Rules make provision for surreply and that

Plaintiff had the opportunity to address the issues he seeks to discuss in

a surreply, an opportunity that he chose to forego, the Court shall deny

his motion.

D-3

406, et seq., violates his right to equal protection pursuant

to the Fourteenth Amendment of the United States

Constitution and his due process rights under the Fifth and

Fourteenth Amendments, all as applied in the instant

matter.” He further alleges the violation of the same equal

protection and due process rights through the application of

Ky. Rev. Stat. 199.00 ef seq., leaving the decision of

whether or not to formally adopt a child to the non-parent

spouse of a custodial parent and affording no power or

authority to compel adoption by the spouse of the custodial

parent to the non-custodial parent. He seeks injunctive

relief, damages, and other relief as follows: (1) an order

declaring the automatic attachment of financial liability

and/or mandatory imposition of a support order upon a

finding of paternity under Ky. Rev. Stat. 405.00, ef seq.,

and 406.00, ef seq., to be unconstitutional as applied; (2) an

? Plaintiff has also filed a motion for leave to amend his complaint aru

to join an additional defendant, the Kentucky Cabinet for Families and

Children [Record No. 23]. The Kentucky Cabinet for Families and

Children is ‘an agency of the Commor’vealth of Kentucky and is

protected from his claims wader 42 U.5.C. 1983 by the cloak of the

Eleventh Amendment severeign immunity discussed in this

memorandum opinion and order. See sec. ITA, infra. Accordingly,

such an amendment would be futile. 7hiokol Corp v. Department of

Treasury, State of Mich, Revenwe Div., 987 F.2d 376, 382 (6" Cir.

1993). Noting that dis Court need not permit the amendment of a

compiaint where it would not survive a motion to dismiss, the Court

shall deny Plaintiff s motion Neighborhood Development Corp v

Advisory Council on Historic Preservation, 632 F 24 21, 23 (6” Cir.

1980).

D4

Kentucky from enforcing any and all support and arrearage

orders issued by the Carroll County District Court; (3) an

order compelling the adoption of his son by Defendant

Brian Hedges, (4) an order of damages in the amount of

$1,000,000.00 against Defendants, and (5) an award of

attorney's fees and costs. In the motion to dismiss of for

summary judgment, Defendant Monk argues that (1)

Plaintiff s claims against the county attorney should be

dismisses as barred by the Eleventh Amendment to the

Constitution of the United States, (2) that this Court should

abstain from accepting jurisdiction over the remaining

claims for prospective injunctive relief under the Younger

abstention doctrine, the Rooker-Feldman doctrine, the

domestic relations doctrine, or by virtue of the doctrines of

res judicata and collateral estoppel. Next, Defendant Monk

argues that (3) the complaint fails to state a claim upon

which relief can be granted and (4) that the complaint is

barred in part by the applicable one year statute of

limitations.

Il. STANDARD OF REVIEW

With regard to Defendants’ motions to dismiss this matter

under Fed. R. Civ. P. 12(6)(6) for failure to state a claim,

this Court must accept all factual allegations in Plaintiffs’

amended complaint as true. Broyde v. Gotham Tower, Inc.,

13 F.3d 994, 996 (6" Cir. 1994). The complaint may be

dismissed only if it is clear that no relief could be granted

on any set of facts that could be proven consistent with the

D-5

allegations, and this Court’s review amounts to a

determination of whether it is possible for the plaintiff to

prove any set of facts in support of its claims that would

entitle it to relief. Sistrunk v. City of Strongsville, 99 F.3d

194, 197 (6" Cir. 1996); Miller v. Currie, 50 F.3d 373, 377

(6™ Cir. 1995). Generally, this Court must ignore all

outside evidence submitted by the parties in ruling on the

pending motions to dismiss. However, a court may

consider public records, those matters of which the Court

may take judicial notice, and letter decisions of

governmental agencies.’ Jackson v. City of Columbus, 194

F.3d 737, 745 (6" Cir. 1999), overruled on other grounds

Swierkiewicz v. Sorema, 534 U.S. 506 (2002).

It. DISCUSSION

A. SUIT FOR DAMAGES AGAINST

DEFENDANT MONK IS BARRED BY SOVEREIGN

IMMUNITY UNDER THE ELEVENTH

AMENDMENT AS DEFENDANT MONK WAS

ACTING AS AN ARM OF THE STATE

Suits against an individual in his/her official capacity

“generally represent only another way of pleading an action

against an entity of which an officer is an agent.” Monell v.

New York Dept. of Social Services, 436 U.S. 658, 690, n. 55

(1978). “An official capacity suit is, in all respects other

> Thus, the Court will consider the pleadings and orders entered in

Carroll County District Court Case No. 01-J-00060, and alll appeals

taken therefrom, as they are matters of public record.

D-6

than name, to be treated as a suit against the entity.”

Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citing

Brandon v. Holt, 469 U.S. 464, 471-72 (1985)). Therefore,

an official of the state is cloaked with the same immunity

as the state under the Eleventh Amendment. Suits brought

pursuant to sec. 1983 against st-*e governments or state

officers in their official capacity are barred. Will v.

Michigan Dept. of State Police, 491 U.S. 58 (1989).

However, municipalities and other local government units

are considered “persons” subject to suit under the

provisions of sec. 1983. Monell v. Department of Social

Services of City of New York, 436 U.S. 658, 690 (1978).

Thus, if an official suit is barred by the Eleventh

Amendment if the named official was acting as an arm of

the state but the suit will be allowed if the named official

was acting as an arm of the municipality.

In the present case, Defendant Monk has argued that he is

an arm of the state because he was enforcing the official

policy of the state through Kentucky statutes. Since

Defendant Monk is employed by the county, the Plaintiff

has argued that Defendant Monk is not immune from suit

pursuant to Monell. Accordingly, the Court must first

determine whether a county attorney enforcing state

statutes may ever fit within the Monell exception.

i. UNCONSTITUTIONAL ACTION

MUST BE EXECTUED BY THE FINAL

D-7

POLICYMAKER AND MUST REPRESENT

OFFICIAL MUNICIPAL POLICY

As noted above, municipalities and other local governments

are subject to suit for damages brought pursuant to § 1983.

However, there are limitations to the types of actions and

officers that can subject a municipality to the perils of suit.

“Congress did not intend municipalities to be held liable

unless action pursuant to official municipal policy of some

nature caused a constitutional tort.” Monell, 436 U.S. at

691 (emphasis added). Therefore, municipalities may be

directly sued for “monetary, declaratory or injunctive

peralhenerrncabtncates enn oe on ay

action “implements or executes a policy statement,

ordinance, regulation or decision officially adopted or

promulgated by that body's officers.” Jd. at 690.

The named officer of the municipality must be the final

policymaker for the alleged unconstitutional act or policy

and that policy must actually be municipal policy. Thus,

liability must be premised on a stronger basis than that of

respondent superior. /d at 692-93. “It is when execution

of a government's policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be

said to represent official policy, inflicts the injury that the

government as an entity is responsible under 1983.”

Monell, 436 U.S. at 694. In other words, the official must

be the final policymaker for the municipality, or in this

case, the county. In addition, the court must “ask whether

governmental officials are final policymakers for the local

D-8

government in a particular area, ot on a particular issue.”

McMillan v. Monroe County, 520 U.S. 781, 785 (1997) -

(emphasis added). Therefore, an individual, in this case,

the county attorney, is not categorically the agent of the

state or of the county. Instead, the official may be an agent

of the state when acting in one role and the agent of the

by each policymaker must be analyzed separately. The

court’s determination “of the actual function of a

government official, in a particular area, will necessarily be

dependent on the definition of the official’s function under

relevant state law.” /d. at 786.

In addition to showing that the agent is the final

policymaker, the Monell test, as clarified by the Sixth

Circuit, requires that “the plaintiff must ‘{i] identify the

policy, [2] connect the policy to the city itself and [3] show

that the particular injury was incurred because of the

execution of that policy’” in order to proceed in a suit

against an official. Garner v. Memphis Police Dept., 8

F.3d 358, 363-64 (6th Cir. 1993) (quoting Coogan v. City

of Wixom, 820 F.2d 170, 176 (6" Cir. 1987). Both parties

concede that the county attorney is the final policymaker in

the enforcement of Kentucky’s allegedly unconstitutional

child support laws. However, Plaintiff insists that the

question of liability ceases upon this determination. The

Plaintiff glosses over the second prong of the test as stated

Garner, to “connect the policy to the city [or the county]

itself.” Garner, 8 F.3d at 364. This component may not be

D-9

satisfied, as Plaintiff argues, by showing that the county

attorney is the final policymaker. (PI.’s Opposing Mem. At

8-11). Plaintiff must also demonstrate that the policy is the

official policy of the municipality. This analysis focuses

upon whether the policy implemented is that of the state of

Kentucky or of the municipality. As noted above, if the

county attorney is implementing state policy rather than

local or municipal policy, then he is an arm of the state in

regard to those duties. McMillan, 520 U.S. at 785, n. 2.

2. DEFENDANT MONK IS THE FINAL

POLICYMAKER FOR THE STATE, NOT THE

COUNTY, BECAUSE HE IS ENFORCING STATE

STATUTES

Relevant case law supports the Defendant’s assertion that

the county attorney, under the facts of this case, is an arm

of the state and, therefore, is immune from suit. In Pusey v.

Youngstown, the Sixth Circuit Court of Appeals held that a

county attorney was acting as a state agent when enforcing

Ohio criminal statutes. Pusey v. Youngstown, 11 F.3d 652

(6™ Cir. 1993); see also, Scott v. O'Grady, 975 F. 2d 366

(7 Cir. 1992), Echols v. Parker, 909 F.2d 795 (5™ Cir.

1990). In Pusey, the mother of a homicide victim sued the

county attorney in his individual and official capacity under

§ 1983 for failure to comply with Ohio’s victim impact

laws. Pusey, 11 F.3d at 654. Concluding that state

criminal laws and state victim impact laws are clearly the

policy of the state, the court concluded that the county

attorney, although employed by the city of Youngstown,

D-10

was acting “on behalf of the state when... prosecuting state

criminal charges” and reducing those charges. Pusey, 11

F.3d at 657. Since the county attorney was acting as a state

agent, the suit was treated as a suit against the state, and it

was barred by sovereign immunity. /d.

Plaintiff, who does not try to distinguish this matter from

Pusey, directs the Court's attention to Pembaur v.

Cincinnati. Pembaur v. Cincinnati, 475 U.S. 469 (1986).

In this case the Supreme Court found that the county

attorney was not protected from suit under § 1983.

Pembaur, 475 U.S. at 479. However, Pembaur is .

distinguishable from the present case and from Pusey by

separating the type of policy at issue in each case. In

Pembaur, several deputy sheriffs, although armed with

valid capiases to procure witnesses needed for trial, were

unable to gain entry to a physician's clinic. Pembaur, 475

U.S. at 472. Unsure of how to proceed, the deputy sheriffs

contacted their superior officer, who told tem to call the

assistant prosecutor. Jd After conferring with the county

prosecutor, the assistant prosecutor instructed the deputy

sheriffs to “go in and get” the witnesses. Jd The county

attorney was not acting under state policy when he directed

the police officers. Pembaur, 475 U S. at 473. The county

attorney was the final policymaker for the municipality

according to state law. Pembaur, 475 U.S. at 484-85. The

Supreme Court noted that the county prosecutor was not

rendering “legal advice,” but, rather, exercising his

authority, granted through state statute, to establish county

D-11

policy in these matters. Id. (“Ohio Rev. Code Ann. §

309.09 (A) (1979) provides that county officers may

‘require. ..instructions from [the County Prosecutor] in

matters connected with their official duties."”) Therefore,

the Court finds that Pembaur is distinguishable from Pusey,

as well as the case at bar, because the county attomey was

not enforcing statutes promulgated by the state legislature,

as in Pusey, but setting forth municipal policy expressly

delegated by the legislature.

The Sixth Circuit Court of Appeals clarified the above

distinction in Brotherton v. Cleveland, 173 F.3d 552 (6"

Cir. 1999). The Brotherton court stated that “[t}he essential

question asks whether [the defendant] could have chosen

not to use his authority under the state statute and how he

would use such authority; if he could have opted to act

differently, or not to act, he did not act as an arm of [the

state] when he formulated and implemented the contested

policy.” /d. at 556. The court also noted that “[t}his

distinction reconciles Garner and Pusey.” Id. at 556. This

line of reasoning further illustrates the distinction between

Pusey and Pembaur. The county attorney had the ability to

use his discretion in choosing if and how to act with regard

to the enforcement of the capiases in Pembaur. However,

the county attorney does not have the same degree of

decision-making power when enforcing a state statute as in

Pusey and the present case. As a result, the current

circumstances do not fall within the Monell exception to

the general rule that a suit for damages may not proceed

D-12

against an individual in his or her official capacity. Thus,

the current case is controlled by the Sixth Circuit's ruling in

Pusey.

In both the case at bar and Pusey, a county attorney was

enforcing state statutes. Although a county attorney is an

employee of the county, the Court agrees with Defendant

that a county attorney is acting as an arm of the state when

enforcing state policy represented by statutes. Thus,

Defendant Monk was acting as an arm of the state, just as

the county attorney in Pusey was an arm of the state, while

enforcing state statutes and the suit for damages may not

proceed against him.

B. SUIT FOR PROSPECTIVE INJUNCTIVE

RELIEF MAY PROCEED AGAINST DEFENDANT

MONK IN ACCORDANCE WITH EX PARTE

YOUNG

The law has long been settled that the Eleventh

Amendment allows suit for prospective injunctive relief

against a state official in his/her official capacity for

ongoing constitutional violations. Ex parte Young, 209

U.S. 123 (1908). By performing an unconstitutional act the

state official is stripped of his/her official or representative

character. /d. at 159-60. Both parties recognize the

validity of Ex parte Young doctrine. Defendant, however,

alleges that the case at bar falls within the special

sovereignty interest exception to this doctrine. See /daho v.

Coeur d’ Alene Tribe of Idaho, 521 U.S. 261 (1997).

D-13

Defendant contends that the Commonwealth of Kentucky

has a special sovereignty interest in “seeing that absentee

parents pay child support rather than make the state

taxpayers pick up that burden.”. [Reply at 9.]

Undoubtedly, the Commonwealth interests are served by

enforcing child support provisions. The Coeur d’ Alene

exception, however, is far too narrow to encompass the

present case.

1. NARROW COEUR D’ALENE

EXCEPTION DOES NOT ENCOMPASS

ENFORCEMENT OF CHILD SUPPORT LAWS AS A

SPECIAL SOVEREIGNTY INTEREST

In the first case applying the special sovereignty interest

exception, the Supreme Court found that a Native

American tribe was barred from bringing suit against the

state of Idaho seeking enjoyment over the submerged lands

of Lake Coeur D’ Alene and injunctive relief against Idaho

officials from exercising their regulatory power over the

same submerged lands. Coeur d’ Alene, 521 U.S. 261. The

Court, in a highly divided decision, found that the relief

sought infringed upon the sovereign interest in the

ownership of the submerged lands. /d. at 280. The state’s

interest in these submerged lands was “an essential attribute

of sovereignty.” Jd. at 283 (quoting Utah Div. of State

Lands v. U.S., 482 U.S. 193, 195 (1987). Furthermore, this

relief was the “functional equivalent to a quiet title action”

in that it sought to divest all benefits and control of the

lands from the State of Idaho. /d at 282. Therefore, the

D-14

actual relief sought, which was, in essence, a quiet title

action, was barred by the Eleventh Amendment. /d

Courts have interpreted Coeur d’ Alene very narrowly.

Martin v. Taft, 222 F. Supp.2d 940, 961 (S.D. Ohio 2002).

In accordance with Coeur d’ Alene, the 6" Circuit has

required a two part analysis. Jd; MacDonald v. Village of

Northport, Mich., 164 F.3d 964, 972 (6" Cir. 1999). The

court must first determine if a core sovereign interest is

implicated. Martin, 222 F. Supp.2d at 961. -If so, the court

must then examine “whether the relief sought is so

intrusive on the state’s sovereignty that it constitutes the

functional equivalent of relief the Eleventh Amendment

bars.” /d. at 961; MacDonald 164 F 3d at 973.

An analysis of relevant case law reveals that the

circumstances of the current case do not represent a core

sovereign interest. Courts have recognized few limited

categories of special interests for the states: (1) the

sovereign’s interest in land, (2) the power to tax, (3) the

emergency power of the governor to take private property,

and (4) the power, directly granted to the state by Congress,

to allocate tobacco settlement funds. See Martin v. Taft, 22

F. Supp.2d 940, 962-63 (S.D. Ohio 2002) (citing Coeur d’

Alene at 283, ANR Pipeline Co. at 1193, Barton v.

Summers, 293 F.3d 944, 955 (6" Cir. 2002); Duke Energy

Trading and Miig., L.L.C. v. Davis, 267 F 3d 1042, 1053-

$4 (9" Cir. 2001); ANR Pipeline Co. v.

Lafaver, 150 F.3d 1178, 1193-94 (10 Cir. 1998)).

D-15

Thus, the state’s special sovereignty interest in enforcing

child support statutes has not heretofore been established.

Although the State does have an interest in the enforcement

of its judgments, there is no evidence that this interest is

“an essential attribute of sovereignty.” Coeur d’ Alene, 521

U.S. at 281. Due to the very limited nature of these core

interests, the Court is unwilling to extend this exception to

the facts of this case. Thus the first factor of the Coeur d’

Alene exception has not been met.

Even assuming that this is a core sovereign interest, the

relief sought does not satisfy the second prong of the Coeur

d’ Alene test — whether the relief sought is the functional

equivalent of the type that the Eleventh Amendment bars.

Defendant contends that the Eleventh Amendment bars this

suit because a suit attacking existing child support orders is

actually retrospective in nature. However, there is no

indication that the type of relief sought is anything other

than prospecuve relief that is allowed under the Young

doctrine. Therefore, this suit, insofar as it seeks

prospective injunctive relief, may proceed against

Defendant Monk.

Cc. ABSTENTION AND RES JUDICATA

DOCTRINES

Defendants next argue that the plaintiffs remaining claims

are barred by the application of doctrine of Younger

abstention, Rooker-Feldman doctrine, and domestic

D-16

relations doctrine, and that this matter is res judicata. For

the reasons which follow, the Court disagrees.

1. YOUNGER ABSTENTION

Principles of comity and federalism underlie the doctrine

that a federal court should not interfere with an ongoing

state criminal proceeding by granting injunctive or

declaratory relief absent extraordinary circumstances.

Younger v. Harris, 401 U.S. 37, 43-54 (1971); Samuels v.

Macikell, 401 U.S. 66, 68-74 (1971). The same counsel

applies to non-criminal proceedings when important state

interests are involved. Middlesex County Ethics Comm. V.

Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). Thus,

through the teaching of Younger, abstention would be

required when: (1) state proceedings, judicial in nature, are

pending; (2) the state proceedings involve important state

interests, and (3) the state proceedings afford adequate

opportunity to raise the constitutional issue. /d.

In the instant matter, the Court does not believe that

Younger abstention is appropriate. Specifically,

Defendants have not identified any relevant pending state

proceedings. While Kentucky courts continue to exercise

jurisdiction over plaintiff's support obligations, it does not

appear that there is any matter pending before any court of

Kentucky which would afford adequate opportunity to raise

D-17

the constitutional issue.‘ Further and notwithstanding the

jurisdiction of the state courts over the continuing support

obligations, the Carroll Circuit Court remarked in its

opinion on the appeal of the Carroll District Court's

decision that it appears that the counterclaim, in which

Plaintiff attempted to raise a challenge identical to that

contained in the present complaint, was outside of the

limited jurisdiction of the Carroll District Court as stated in

KY. REV. STAT. 24A.110-130. This Court agrees.

Accordingly, the Younger doctrine may not be properly

invoked.

2. ROOKER-FELDMAN DOCTRINE

Federal district courts may not review the determinations of

a State court or interfere with a final state court judgment.

See District of Columbia Court of Appeals v. Feldman, 460

U.S. 462, 482-86 (1983); Rooker v. Fidelity Trust Co., 263

U.S. 413, 415-16 (1923). The Sixth Circuit Court of

Appeals has described the Rooker-Feldman doctrine as

follows:

“While defendants have argued that federal courts must abstain from

interfering with enforcement of state court judgments, retying on

Pennzoil Co. v. Texaco, Inc., the Court believes that this matter is

simply inapposite to that in Pennzoi! where not only had a state court

judgment been obtained, there was also a challenge to the vahdity of

the disputed statute actually pending i the state courts. Pennzoil Co. v.

Texaco, Inc., 481 U.S. 1, 13-14 (1987)

D-18

[a] combination of abstention and res judicata

doctrines, [which] stands for the proposition that

federal district court may not hear an appeal of a

case already litigated in state court. A party raising

a federal question must appeal a state court decision

through the state system and then directly to the

Supreme Court of the United States.

United States v. Owns, 54 F 3d 271, 274 (6" Circ. 1995).

Plaintiff urges this Court to adopt the reasoning of the

Eighth Circuit Court of Appeals in Ballinger v. Culotia, a

matter in which the plaintiff sought relief under 42 U.S.C. §

1983 from a child custody judgment of state court and in

which the Court of Appeals determined that, under the

Rooker-F eldman doctrine, abstention would be proper.

Ballinger v. Culotta 322 F 34 546 (8* Cir. 2003). The

Court declines to do so, noting that there is no indication

that the plaintiff in Ballinger could not have raised his

federal question in the underlying state proceeding. Again,

this Court notes that the federal question raised by Plaintiff

has not been and could not have been litigated nor any final

judgment entered on the issue of the constitutionality of the

challenged statutes in the earlier state court proceedings.

Accordingly, the doctrine of Rooker-F eldman does not

apply to the circumstances at hand.

3. DOMESTIC RELATIONS DOCTRINE

As Defendants remind the Court, “[t]he whole subject of

domestic relations of a husband and wife, parent and child,

D-19

belongs to the laws of the States and not to the laws of the

United States.” /n re Burrus, 136 U.S. 586, 593-94 (1890).

No doubt, abstention from matters involving domestic

relations is an accepted exception to federal court diversity

jurisdiction, specifically “as it pertains to divorce and

alimony decrees and child custody orders.” See

Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992),

McCarty v. McCarty, 453 U.S. 210 (1981), McLaughiin v.

Cotner, 193 F.3d 410, 412-13 (6" Cir. 1999). Nonetheless,

Plaintiff has identified a federal question and seeks

damages in tort under § 1983, suitable for decision before a

federal district court. See Ankenbrandt, 504 U.S. at 703 &

706. Simply because Plaintiff s challenge touches on a

maters of domestic concern, the establishment of paternity,

child support obligations, and adoption, the Court will not

be making any assessment of support, any decisions

regarding Plaintiff's status as the father of his child, or

acting upon an adoption in this matter. See Boddie v.

Connecticut, 401 U.S. 371 (1971), Fernos-Lopez v. Lopez,

929 F.2d 20, 22-23 (1* Cir. 1991); Agg v. Flanagan, 855

F.2d 336, 339 (6" Cir. 1988). Accordingly, this Court is not

required to abstain and shall not do so in this matter.

a RES JUDICATA

“(28 U.S.C. §] 1738 requires federal courts to give the

same preclusive effect to state court judgments that those

judgments would be given in the courts of the State from

which the judgments would be given in the courts of the

State from which the judgments emerged.” Kremer v.

D-20

Chemical Const. Corp. 456 U.S. 461, 466 (1982). The

Kentucky law of res judicata or claim preclusion “may be

used to preclude entire claims that were brought or should

have been brought in a prior action, while the doctrine of

collateral estoppel [or issue preclusion] only applies to

issues actually litigated.” City of Covington v. Board of

Trustees of Policemen's and Firefighters’ Retirement Fund,

903 S.W.2d 517, 521 (Ky. 1995). In the instant matter, as

discussed above, it is quite clear that while Plaintiff

attempted to bring his 42 U.S.C. § 1983 claims as a

counterclaim to the underlying paternity case, the district

court did not have jurisdiction to hear his claims.

Accordingly, the merits of his constitutional attacks have

not been litigated nor could they have been. The claims at

hand are not res judicata.

Cc. FAILURE TO STATE A CLAIM

The Court now turns to a determination of whether or not

Plaintiff can state his remaining claims if the Court accepts

all factual allegations in Plaintiffs’ amended complaint as

true. In his complaint, pursuant to 42 U.S.C. sec. 1983,

Plaintiff alleges that the automatic attachment of financial

liability on a “putative” father upon a finding of paternity

under Ky. Rev. Stat. 405.00, et seq., and 406, et seq.,

violates his right to equal protectior pursuant to the

Fourteenth Amendment of the United States Constitution

and his due process rights under the Fifth and Fourteenth

Amendments, all as applied in the instant matter. He

D-21

further alleges the violation of the same equal protection

and due process rights through the application of Ky. Rev.

Stat. 199.00, et seq., leaving the decision of whether or not

to formally adopt a child to the non-parent spouse of a

custodial parent and affording no power or authority to

compel adoption by the spouse of the custodial parent to

the non-custodial parent.

“To state a claim under sec. 1983, a plaintiff must allege

the violation of a right secured by the Constitution and laws

of the United States, and must show that the alleged

deprivation was committed by a person acting under color

of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

Accordingly and without needing to reach the issue of

whether Defendants Cindy J. Hedges or Brian Hedges were

state actors for purposes of sec. 1983 jurisprudence, this

Court must dismiss Plaintiff's sec. 1983 claims for the

reasons stated below

i. PLAINTIFF HAS FAILED TO STATE A

CLAIM UNDER THE FIFTH AMENDMENT

Plaintiff’ s claims under the Fifth Amendment shall be

dismissed as the due process protections afforded by the

Fifth Amendment pertain only to actions taken by the

federal government, not state or local governments as

alleged in this matter. See Bartkus v. Illinois, 359 U.S. 121,

124 (1959), Newsom v. Vanderbilt University, 653 F.2d

1100, 1113 (6" Cir. 1981)

D-22

2. PLAINTIFF CANNOT STATE A

CLAIM FOR VIOLATION OF HIS SUBSTANTIVE

DUE PROCESS RIGHTS UNDER THE

FOURTEENTH AMENDMENT

The Fourteenth Amendment provides that state and local

governments shall not deprive any person of “life, liberty,

or property without due process of law.” U.S. Const.

Amend. XIV. There has been some debate between the

parties as to whether or not Plaintiff complains of

violations of his procedural due process rights or his

substantive due process rights under the Fourteenth

Amendment. In his response, however, Plaintiff has

categorically stated that he does not allege any procedural

deficiency with regard to the proceedings in the earlier state

action. Rather, he states that his allegations concern a

violation of substantive due process. Accordingly, the

Court shall examine only that claim.

In a substantive due process analysis, the Court inquires

into whether or not the government has a sufficient

justification for taking away a person’s life, liberty or

property.” The Court must first ascertain which aspect of

* Plauntiff could also state a claim by identifying a state act so

outrageous that m shocks the conscience and is an official act which

“may not take place no matter what procedural protections accompany

them.’ G.M. Engineers v. West Bloomfield, 92 F.2d 328, 332 (6* Cis.

1990) (quoting Hayes v. Vessey, 777 F.2d 1149, 1152 (6" Cir. 1985)),

Pearson v. City of Grand Blanc, 756 F Supp. 314, 318-19 (E.D. Mich

1991). The Court does not find anything in the complaint or the

D-23

Plaintiff s life, liberty, or property has been impacted by a

state action in order to ascertain which level of scrutiny to

apply to the state actor’s reasons for acting. Ifa

will apply. If not, generally a rational basis test is applied.

With regard to what aspect of his “life, liberty, or property”

is at stake, Plaintiff first argues that the application of the

laws of Kentucky for establishing paternity and imposing

and enforcing child support obligations touches sufficiently

on his fundarnental rights with regard to procreation, i.e.,

the “decision whether to be a father,” so as to violate his

Fourteenth Amendment rights to due process. [Response at

30]. The same fundamental right, he asserts, empowers

him to compel an adoption of his son by the child’s

stepfather

Even though a fundamental right to procreate or not

procreate has been identified in American jurisprudence,

the Court is not convinced that Plaintiff can identify an

infringement of that right by the state in the instant matter °

records of the state proceedings that suggests behavior so outrageous as

to shock anyone's conscience in this way.

* Having ascertained that there exists a fundamental right regarding

the choice to beget a child, a right which takes various forms, the Court

1S not Convinced that there cxists within that fundamental right a subset

of liberty including the choice of whether or not to be charged with

paternity or whether or not to provide support to one’s child once that

child is conceived, at least not as it is understood by Plainsiff.

D-24

See Planned Parenthood v. Casey, 50S U.S. 833 (1992)

(unconstitutional to ban abortions prior to viability

although state may regulate abortions before viability so

long as it does not place an “undue burden” on access to

abortions); Carey v. Population Services International, 431

U.S. 678 (1977) (state law criminalizing sale or distribution

of contraceptives to minors, limiting distribution to

pharmacists, and forbidding advertisement or display of

contraceptives was unconstitutional), Roe v. Wade, 410

U.S. 113 (1973) (unconstitutional for state to prohibit

abortions prior to viability); Eisenstadt v. Baird, 405 U.S.

The Court remarks that there are two understandings of the

word “father.” The first involves anyone who provides sperm to

fertilize an egg There is nothing “putative” about Plaintiff's status in

this regard. As to the second type of “fatherhood,” the type of

involvement in the raising and nurturing of a child conceived in the

first sense, the Court does not understand Plaintiff s complaint to speak

to this type of fatherhood. Even if it had, the Court is not comvinced

that the challenged statutes interfere with any sori of privacy or

associational right that might be asserted by Plaintiff so as to be

unconsttutional Clearly, a biological parent has a fundamental liberty

interest in the custody of his or her child. See Santoaty v Kramer, 455

U.S. 745, 753-54 (1982). Even if the Court assumed in the face of its

sincere doubts that he could establish, as a corollary to an interest in

custody, a fundamental right regarding the right to choose whether or

not to be a father in the second, more social sense of the word, the

Court is convinced that the laws could survive the strict scrutiny

prescribed, for the state could present a compelling interest im the

welfare of chikdven tarough making sure that parents provide for thear

children's needs.

D-25

438 (1972) (state law prohibiting distribution of

contraceptives to unmarried individuals held

unconstitutional), Griswold vy. Connecticut, 381 U.S. 479

(1965) (state statute prohibiting use and distribution of

contraceptives held unconstitutional on basis of right to

privacy), Skinner v. Oklahoma, 316 U.S. 535 (1942) (state

statute allowing court-ordered sterilization of repeat

criminal offenders was unconstitutional).

Plaintiff has identified no action taken by a state actor that

impacted in any way his choice to father a child. As he

complains of actions taken under the Commonwealth’ s

statutes that permit the establishment of paternity and the

imposition and enforcement of child support obligations,

the Court sees no evidence that the state required him to

engage in the sexual activity that resulted in the conception

of his son. Further he has identified no action taken by a

state actor that interfered in any way with his choice to use

Of not to use contraceptive methods — or additional

contraceptive methods, as the case may be — during that

sexual activity to avoid his sexual partner’s resulting

pregnancy. Accordingly, he cannot state a claivn for a

violation of his substantive due process nghts under the

Fourteenth Amendment by the application of the laws of

Kentucky for establishing paternity and imposing and

enforcing child support obligations.

Next, the Court must admit that is is absolutely

flabbergasted by the suggestion that Plaintiff should be able

D-26

to force his child’s step-father to adopt Plaintiff s son.

Again, it is well accepted that the “freedom of personal

choice in matters of family life is a fundamental liberty

interest protected by the Fourteenth Amendment.”

Santosky v. Kramer, 455 u.S. 745 (1982), Zablocki v.

Redhail, 434 U.S. 374 (1978), Smith v. Organization of

Faster Families for Equality and Reform, 431 U.S. 816

(1977). As the decision to adopt or not to adopt a child is

no doubt an extremely personal decision, the Court doubts

the wisdom of any sort of legal system purporting to foist

the adoption of someone else’s child upon an individual.

Of course, that is not the matter before the Court today, and

the Court can safely confine its opinion to the fact that

Plaimtiff clearly does not have a constitutionally protected

right to force someone else to adopt his child. In any event,

whether or not Commonwealth law provides him that

option, it would not touch on his decision to become or not

to become a father in the first place. Accordingly, he can

state no claim on these grounds.

3. EQUAL PROTECTION

The Equal Protection Clause of the 14”

Amendment commands that no State shall “deny

to any person within its jurisdiction the equal

protection of the laws,” which is essentially a

direction that all persons similarly situated should

be treated alike.

D-27

City of Cleburne, Texas v. Cleburne Living Center, 473

U.S. 432, 439 (1995) (quoting Piyler v. Doe, 457 U.S. 202,

216 (1982)). Unless a suspect class (classification by race,

alienage, or national origin), quasi-suspect classification

(gender or legitimacy), or a fundamental right is at stake,

equa! protection claims are analyzed using a deferential

rational basis test.’ Heller v. Doe, 509 U.S. 312, 320

(1993). Generally, legislation is presumed to be valid and

sustained if the classification drawn by the statute is

rationally related to a legitimate state interest. City of

Cleburne, 473 U.S. at 440. Thus, it is taught that:

[w]hen social or economic legislation is at issue,

the Equal Protection Clause allows the States

wide latitude, and the Constitution presumes that

even improvident decisions will eventually be

rectified by the democratic processes.

Id. at 440.

” Where suspect classification occurs:

...Such discrimination is unlikely to be soon rectified by

legislative means, [and] these laws are subjected to strict

scrutiny and will be sustained only if they are suitably

tailored to serve a compelling state interest. Similar

oversight by the courts is due when state laws impinge on

personal rights protected by the Constitution.

City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 440

(1985) (internal citations omitted). As quasi-suspect classifications,

those based on gender or legitimacy fail unless they are substantially

related to a sufficiently important governmental interest. /d at 441.

D-28

Defendants argue that Plaintiff s equal protection claims

are subject only to an analysis under the rational basis test."

The Court agrees as it is hard-pressed to determine to

which class Plaintiff purports to belong and certainly

cannot identify a suspect class, quasi-suspect classification,

* Plaintiff has responded only that such an attack on the merits is

untimely since he argues that the legyslation of which he complains 1s

unconstitutional “as applied™ to specific factual situations (including

motivations of the partes, acuons of the partes in manipulating state

court procedures, circumstances surrounding |e conception and

pregnancy of the child, and whether best interests of children Irving in

specific types of famaly environments are sacrificed by constitutionally-

deficient adoption statutes)” and wil) require “extensive discovery” to

establish the factual situavons for purposes of summary judgment.

[Response at 27 |

On a motion to dismiss under Fed. R. Civ. P. 12(6)(6), this Court must

accept all factual allegations in Plaintiffs’ amended cotaplamt as true,

which is to say that further discovery is simply not necessary. As noted

above, it is clear from the complaint that Plaintiff alleges no state

actions which have impacted the fundamental nghts he alleges to have

been violated in this matter. Further, some of the rights that he alleges

to have been impacted by the state action simply do not have the

constitutional umport he assigns to them nor has he identified the type

of irrational lationship between the interests served by the challenged

legislation a4 the legislavon or unequal applcation of those laws that

would otherwise permut this matter to survive a movion to dismiss.

Finally, imsofar as he wishes to take discovery un order to demonstrate

“manipulations of state court proceedings,” he has not pled any

procedural inconsistencies of this nature in his complaint, even denying

that he would or could state a procedural due process claim im his

response. Accordingly, his motion shall be demed.

D-29

or, as stated earlier in this opinion, a fundamental right that

is at stake. Assuming that Plaintiff purports to be a

member of a class of “individuals obligated to pay child

support,” “men who have fathered children out of

wedlock,” “men who do not wish to be fathers but who

have, nonetheless, fathered children,” or “men who have

fathered children now living with their mothers in a home

with a step-father that has not adopted them,” the Court is

still unclear on what, if any, unequal treatment at the hands

of the law is alleged. In any event, there is no doubt for

this Court that the statutes of which Plaintiff complains are

rationally related to a legitimate state interest, providing for

the material needs of children.” Beyond recognizing this

rational relationship, the Court cannot and will not second

guess the wisdom of the Commonwealth's legislature’s

decision to enact statutes requiring individuals taking part

in sexual activity that results in the birth of a child to

shoulder the responsibility of providing for the needs of

that child in order to satisfy this state interest. His claim

for violation of his right to equal protection of the laws

under the Fourteenth Amendment shall be dismissed.

IV. CONCLUSION

* Further, Plaintiff s assertion that Defendants’ ability to engage im a

rational basis analysis of his equal protection claim proves that he has

state a claim upon which relief may be granted is ridiculous. Rather

than identify which class he purports to be a member of, Plauntiff has

ignored Defendant's invitation to explore his claim in cven the most

esoteric terms.

D-30

For all of the reasons stated above, it is clear to this Court

that Plaintiff's claims cannot survive a motion to dismiss

for failure to state a claim under Fed. R. Civ. P. 12(b)6),

and Defendant's motions to dismiss shall be granted.

Further, for the reasons stated in this opinion, it is clear that

Plaintiff s pending motions as discussed above should be

denied.

Accordingly, IT IS ORDERED:

(1) that Plaintiff's motion for leave to file a surreply

[Record no. 35] be, and the same hereby is DENIED,

(2) __ that Plaintiff's motion to reopen discovery and for

an indefinite extension of time in which to respond to

Defendants’ motions for summary judgment [Record No.

27] be, and the same hereby is, DENIED;

(3) that Plaintiff's motion for leave to amend his

complaint and to join an additional defendant, the

Kentucky Cabinet for Families and Children [Record no.

23}, be, and the same hereby is, DENIED,

(4) that Defendant's motions to dismiss or for summary

iudgment [Record Nos. 7 & 12] be, and the same hereby

are, GRANTED IN PART and DENIED AS MOOT IN

PART.

(5) that all Plaintiff's claims be, and the same hereby

are, DISMISSED WITH PREJUDICE.

This the 5” Day of December, 2003.

Signed by: Joseph M. Hood, United States District Judge

E-1

TEXT OF THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. 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 laws.

F-]

199.480 Parties defendant in an adoption proceeding —

Process — Guardian ad litem.

(1) The following persons shall be made parties defendant

im an action for leave to adopt a child:

(a) The child to be adopted,

(b) The biological living parents of a child under

eighteen (18), if the child is born in lawful wedlock. If the

child is born out of wedlock, its mother, and its father, if

one (1) of the following requirements is met.

1. He is known and voluntarily identified by

the mother by affidavit,

2. Prior to the entry of a final order in a

termination proceeding, he has acknowledged the child as

his own by affirmatively asserting paternity in the action or

to the custodial agency or the party bringing the action

within sixty (60) days after the birth of the child,

3. He has caused his name to be affixed to

the birth certificate of the child, '

4 He has commenced a judicial proceeding

claiming parental nght,

5. He has contributed financially to the

support of the child, either by paying the medical or

hospital bills associated with the birth of the child or

financially contributed to the child's support, or

6. He has married the mother of the child or

has lived openly or is living openly with the child or the

person designated on the birth certificate as the biological

mother of the chiid

F-2

A putative father shall not be made a party defendant if

rone of the requirements set forth above have been met,

and a biological parent shal! not be made a party defendant

if the parental rights of that parent have been terminated

under KRS Chapter 625, or under a comparable statute of

(c) The child’s guardian, if it has one.

(d) If the care, custody, and control of the child has

been transferred to the cabinet, or any other individual or

individuals, institution, or agency, then the cabinet, the

other individual or individuals, institution, or agency shall

be named a party defendant, unless the individual or

individuals, or the institution or agency 1s also the

petitioner

(2) Each party defendant shall be brought before the court

in the same manner as provided in other civil cases except

that if the child to be adopted is under fourteen (14) years

of age and the cabinet, individual, institution, or agency has

custody of the child, the service of process upon the child

shall be had by serving a copy of the summons in the action

upon the cabinet, individual, institution or agency, any

provision of CR 4.04(3) to the contrary notwithstanding.

(3) If the child's biological living parents, if the child is

born in lawful wedlock, or if the child is born out of

wedlock, its mother, and if paternity is established in legal

action or if an affidavit is filed stating that the affiant is

F-3

father of the child, its father, are parti¢s defendant, no

guardian ad litem need be appointed to represent the child

to be adopted.

G-1

405.020 Custody, surture, and education of minor child

— Physically and mentally disabled children — De facto

custodian.

(1) The father and mother shall have the joint custody,

nurture, and education of their children who are under the

age of eighteen (18). If either of the parents dies, the

survivor, if suited to the trust, shall have the custody,

nurture, and education of the children who are under the

age of eighteen (18). The father shall be primarily liable for

the nurture and education of his children who are under the

age of eighteen (18) and for any unmarried child over the

age of eighteen (18) when the child is a fulltime high

school student, but not beyond completion of the school

year during which the child reaches the age of nineteen (19)

years.

(2) The father and mother shall have the joint custody, care,

and support of their children who have reached the age of

eighteen (18) and who are wholly dependent because of

permanent physical or mental disability. If either of the

parents dies, the survivor, if suited to the trust, shall have

the custody, care, and support of such children.

(3) Notwithstanding the provisions of subsections (1) and

(2) of this section, a person claiming to be a de facto

custodian, as defined in KRS 403.270, may petition a court

for legal custody of a child. The court shall grant legal

custody to the person if the court determines that the person

G-2

meets the definition of de facto custodian and that the best

interests of the child will be served by awarding custody to

the de facto custodian.

(4) Notwithstanding the provisions of subsections (1) and

(2) of this section, if either yarent dies and at the time of

death a child is in the custody of a de facto custodian, as

defined in KRS 403.270, the court sha!l award custody to

the de facto custodian if the court determines that the best

interests of the child will be served by that award of

custody.

H-1

405.430 Genetic testing to establish paternity — Cabinet

may determine child support or child care obligation —

Adjustment of child support or child support obligation

— Order requiring parent to work or continue

educational or training activities — Disclosure of

financial records — Voluntary acknowledgment of

paternity as basis — Administrative subpoenas to

enforce child support obligation — Prohibition —

Employment assistance.

(1) When a parent presents himself to the cabinet for the

voluntary establishment of paternity and clear evidence of

parentage is not present, the cabinet shall pay when.

administratively ordered the cost of genetic testing to

establish paternity, subject to recoupment from the alleged

father when paternity is established.

(2) The cabinet shall obtain additional testing in any case if

an original test is contested, upon request and advance

payment by the contestant.

(3) In a contested paternity case, the child, the mother, and

the putative father shall submit to genetic testing upon a

request of any of the parties, unless the person or guardian

of the person who is requested to submit to genetic testing

shows good cause, taking into account the best interests of

the child, why the genetic tests cannot be performed. The

request shail be supported by a sworn statement of the

party, requesting that the test be performed, which shall

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include the information required by 42 U.S.C. sec.

666(a)(5 (BX!) or (ii).

(4) When a parent who fails to support a child is not

obligated to provide child support by court order, the

cabinet may administratively establish a child support

obligation based upon a voluntary acknowledgment of

paternity as set forth in KRS Chapter 406, the parent's

minimum monthly child support obligation and

proportionate share of child care costs incurred due to

employment or job search of either parent, or incurred

while receiving elementary or secondary education, or

higher education or vocational training which will lead to

empioyment. The monthly child support obligation shall be

determined pursuant to the Kentucky child support

guidelines set forth in KRS 403.212. The actual cost of

child care shall be reasonable and shall be allocated

between the parents in the same proportion as each parent's

gross income, as determined under the guidelines, bears to

the total family gross income.

(5) The cabinet shall recognize a voluntary

acknowledgment of paternity as a basis for seeking a

support order, irrespective of the alleged father's

willingness to consent to a support order.

(6) When in the best interest of the child, the cabinet may

review and adjust a parent's child support obligation or

child care obligation as established by the cabinet, upon a

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request of the cabinet when an assignment has been made,

or upon either parent's petition if the amount of the child

support awarded under the order differs from the amount

that would be awarded in accordance with KRS 403.212.

The cabinet shal! notify parents at least once every three (3)

years of the right to a review.

(7) in establishing or modifying a parent's monthly child

to identify orders eligible for review, conduct the review,

identify orders eligible for adjustment, and apply the

adjustment to eligible orders in accordance with KRS

403.212. The cabinet shall utilize information, including

financial records, about the parent and child which it has

good reason to believe is reliable and may require the

parents to provide income verification.

(8) In cases in which past-due support is owed for a child

receiving public assistance under Title IV-A of the Federal

Social Security Act, the cabinet shall issue an

administrative order, or seek a judicial order, requiring the

obligated parent to participate in work activities, or

educational or vocational training activities for at least

twenty (20) hours per week, unless the parent is

incapacitated as defined by 42 U.S.C. sec. 607.

(9) The cabinet may disclose financial records only for the

purpose of establishing, modifying, cr enforcing a child

obligation of an individual. A fi sal instituti

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shall not be liable to any individual for disclosing any

financial record of the individual to the cabinet attempting

to establish, modify, or enforce a child support obligation.

(10) The cabinet may issue both intrastate and interstate

administrative subpoenas to any individual or entity for

financial or other information or documents which are

needed to establish, modify, or enforce a child support

obligation pursuant to Title IV-D of the Social Security

Act, 42 U.S.C. secs. 651 et seq. An administrative

subpoena lawfully issued in another state to an individual

or entity residing in this state shall be honored and enforced

in the Circuit Court of the county in which the individual or

entity resides.

(11) In any case where a person or entity fails to respond to

a subpoena within the specified time frame, the cabinet

shall impose a penalty.

(12) No person shall knowingly make, present, or cause to

be made or presented to an employee or officer of the

cabinet any false, fictitious, or fraudulent statement,

representation, or entry in any application, report,

document, or financial record used in ésiermining child

support or child care obligations.

(13) If a person knowingly or by reason of negligence

discloses a financial record of an individual, that individual

may pursue civil action for damages in a federal District

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Court or appropriate state court. No liability shall arise with

respect to any disclosure which results from a good faith,

but erroneous, interpretation. In any civil action brought for

reason of negligence of disclosure of financial records,

upon finding of liability on the part of the defendant, the

defendant shall be liable to the plaintiff in an amount equal

to:

(a) The sum of the greater of one thousand dollars

($1,000) for each act of unauthorized disclosure of

financial records; or

(b) The sum of the actual dainages sustained by the

plaintiff resulting from the unauthorized disclosure, plus

(c) If willful disclosure or disclosure was a result of

gross negligence, punitive damages, plus the costs,

including attorney fees, of the action.

(14) The cabinet shail issue an administrative order or seek

a judicial order requiring a parent with a delinquent child

support obligation, as defined by administrative regulation

promulgated under KRS 15.055, to participate in the

program described in KRS 205.732 to help low-income,

noncustodial parents find and keep employment unless the

parent is incapacitated as defined by 42 U.S.C. sec. 607.

4

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