Lalli v. Lalli – Oral Argument – October 04, 1978

Media for Lalli v. Lalli

Audio Transcription for Opinion Announcement – December 11, 1978 in Lalli v. Lalli

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Warren E. Burger:

We’ll hear arguments next in Lalli against Lalli.

I think you may proceed now, Mr. Henkin.

Leonard M. Henkin:

Mr. Chief Justice and may it please the Court.

This is a second appeal from the Court of Appeals of the State of New York.

On the first appeal, this Court vacated the judgment as sent the case back for reconsideration in the light of your decision in Trimble versus Gordon.

On — thereafter, the Court of Appeals by a vote of five to two disregarded the directive of this Court and attempted to distinguish the New York statute involved, which brought us back to you.

This statute which is the state’s powers and trust law Section 4-1.2 requires an order affiliation to be obtained within two years after the birth of an illegitimate child during the lifetime of the father before the child can participate in distribution of the estate of his natural father.

The Attorney General indicates that he does not concede the facts.

However, the Court of Appeals in its first opinion clearly states that the facts in this case are uncontested.

The decedent was killed in 1974.

The respondent is widow is not here on this appeal.

The only one who is in opposition is here is the Attorney General of the State of New York.

Even though, she has a bond in the sum of $100,000.00 which was required to be put at the time that she obtained the letters of the administration.

The appellant was born out of wedlock.

It is conceded that no other affiliation was obtained.

Also —

Potter Stewart:

How old was the —

Leonard M. Henkin:

I beg your pardon?

Potter Stewart:

How old was at the time of his father’s death?

Leonard M. Henkin:

I think he was about 26 or 28.

Potter Stewart:

Much older than two years old.

Leonard M. Henkin:

Much order than two years old, Your Honor.

I may say that at that time, there was procedure in New York at the time the father died where by the father would bring a proceeding in order to have the child declared legitimate.

That statute was enacted thereafter after the father died.

There is no marriage claimed to have taken place between his natural parents.

The appellant was acknowledge by the decedent as his son, in writing, duly acknowledged before a notary public and during the lifetime of the decedent, they were living together prior to the time that the natural mother of the infant died and the father was natural father was supporting the mother and the infant and his sister.

Harry A. Blackmun:

In full?

Leonard M. Henkin:

Originally in full but shortly before he died, the son having reached the age of majority was working for the father in his business, so the father supported him in part.

Harry A. Blackmun:

So, it’s you position that he supported him entirely as long as he was a minor?

Leonard M. Henkin:

That’s correct.

Harry A. Blackmun:

Under New York Law could the decedent have taken care of this child by will?

Leonard M. Henkin:

Yes, Your Honor.

Harry A. Blackmun:

He did not do so?

Leonard M. Henkin:

He did not do so because he was killed.

We also do not know whether that —

Harry A. Blackmun:

No, almost die —

Leonard M. Henkin:

He was killed.

Harry A. Blackmun:

I say all of us die.

Leonard M. Henkin:

Yes, Your Honor.

Harry A. Blackmun:

Did he have will?

Leonard M. Henkin:

There was no will found after he died.

We don’t know.

He may have had the will but —

Potter Stewart:

How was he killed?

Was he killed in accident?

Leonard M. Henkin:

He was — no.

He was killed by a stepson.

Potter Stewart:

Also name Lalli?

Leonard M. Henkin:

Also named Lalli.

Potter Stewart:

Everybody in this case is named Lalli.

Leonard M. Henkin:

That is correct, Your Honor.

Harry A. Blackmun:

And was that Aileen’s son by another man?

Leonard M. Henkin:

That was Aileen’s son by another man.

Harry A. Blackmun:

Is Robert’s formal birth certificate in the record?

Leonard M. Henkin:

No, Your Honor.

Harry A. Blackmun:

Is there a reason why it wasn’t?

Leonard M. Henkin:

There is no — apparently there is no birth certificate that we know of about Robert.

We do know that there is an acknowledgment which is in the record wherein the father says although he could have said my word, he says, “My son in giving consent to our marriage of Robert.”

Thurgood Marshall:

Getting back a minute to — was it born in New York?

Leonard M. Henkin:

He was born in New York.

Leonard M. Henkin:

Yes, Your Honor.

Thurgood Marshall:

And you can’t find a birth certificate in New York?

Leonard M. Henkin:

We don’t know of any birth certificate for Robert Lalli.

Thurgood Marshall:

Well, obviously he had a birth certificate, if he was born in New York.

Leonard M. Henkin:

He may have a birth certificate.

We don’t know of any.

There is none in the record.

Thurgood Marshall:

Did anybody look for one?

Leonard M. Henkin:

We have not looked for one, Your Honor.

Thurgood Marshall:

He was born?

Leonard M. Henkin:

I beg your pardon?

Thurgood Marshall:

He was born?

Leonard M. Henkin:

He was born.

There was no question about it he couldn’t be the appellant in this case and I could not represent him if he was not born, Your Honor.

Harry A. Blackmun:

Mr. Henkin, I think in your brief, you don’t site Labine against Vincent?

Leonard M. Henkin:

No, we do not.

Harry A. Blackmun:

On the ground what, that its —

Leonard M. Henkin:

We feel that that case is not applicable to this situation in view of Gordon versus Trimble.

We feel that the gist of the decision in Gordon versus Trimble is that where the proof of paternity is clear, as in instances given by the Court in Gordon versus Trimble, no requirement should be interposed by statute on the right of illegitimate child to participate in the estate.

Harry A. Blackmun:

Then you think that the Trimble against Gordon really overruled Vincent against Labine?

Leonard M. Henkin:

To that extent, yes.

Harry A. Blackmun:

Although, it didn’t say so on so many words.

Leonard M. Henkin:

That is correct, Your Honor.

We also feel that —

Harry A. Blackmun:

Can I ask you one more question and I’ll stop.

What are we talking about here is totally irrelevant but were talking much money or about very little as was the case in the Trimble case?

Leonard M. Henkin:

No.

In this case, we have a bond of over $100,000.00 and despite that there as I reiterate — we also have a claim in the death action against the man who killed the decedent to this case.

Potter Stewart:

Is that the main asset of the estate?

Leonard M. Henkin:

Yes, it is the stepson, Your Honor.

Potter Stewart:

Yes, I understand.

But what are the assets of the estate, what’s —

Leonard M. Henkin:

What the assets of the —

Potter Stewart:

Yes.

Is this tort claim the principal asset —

Leonard M. Henkin:

$100,000.00

Warren E. Burger:

$100,000.00 property.

Potter Stewart:

Of tangible assets plus this tort claim?

Leonard M. Henkin:

This —

Potter Stewart:

Plus this tort claim?

Leonard M. Henkin:

That is correct.

Potter Stewart:

Thanks.

Leonard M. Henkin:

Now, against this claim there was an acknowledgment in any ground which —

Therefore on this one (Inaudible)

Warren E. Burger:

Is the microphone functioning?

No?

Will you check on it please?

We will give you a time out Mr. Henkin without charging you for the time.

You maybe seated if you like Mr. Henkin now.

You maybe seated until they get to the correction here.

Mr. Wong, I think what we’ll do is take a brief recess until you can find the mechanical problem here.

[Recess]

Now, you may proceed Mr. Henkin, I think we’re functioning again.

Leonard M. Henkin:

Thank you, Your Honor.

John Paul Stevens:

Mr. Henkin, before you start.

Would you clear up something I had missed in the briefs?

You keep — you mentioned two or three times that Mrs. Lalli, the original respondent is no longer party to the case in effect.

Is the case moot?

Leonard M. Henkin:

She did not appeal in this Court.

She filed no brief and she’s not represented by her attorneys on this — at this time.

Leonard M. Henkin:

The only one who’s appearing in opposition to us is the Attorney General of the State of New York.

John Paul Stevens:

The case had been settled or anything like that, has it?

Leonard M. Henkin:

No.

It has not been settled, Your Honor.

She just did not appeal.

She did not file any brief and she did not appear although, after we filed a notice of appealed for the second time.

John Paul Stevens:

Would you tell me one other thing.

I’m not sure I understood you answer to Mr. Justice Blackmun.

He asked you if there — whether there’s a lot of money involved or small amount.

You answered by saying there’s a $100,000.00 bond posted I don’t really know how that answers the question.

Does that mean there’s a lot of money or not much money?

Leonard M. Henkin:

Ah, there is — we claim that there is over a $100,000.00 involved in this estate.

John Paul Stevens:

I see.

Leonard M. Henkin:

We also claim that there is death cause of action which he did not follow up and as to which we say we are entitled to an accounting.

John Paul Stevens:

I see.

So, you do there is a substantial amount of money?

Leonard M. Henkin:

Yes, there is a substantial amount of money involve in this case.

And what the actual amount is involved will find upon the accounting if one is ordered by this Court and this is what we are seeking and that’s where we were stopped by the court below, Circuit’s court dismissing our application for an accounting.

Potter Stewart:

Mr. Henkin, if your client had been illegitimate son, let’s say, a father and mother married had one child, under the laws of the intent of succession in New York upon the father’s death, does what the mother gets two-thirds and the child one-third?

Leonard M. Henkin:

No, if he was the only child —

Potter Stewart:

Yes.

Leonard M. Henkin:

He would get one-third, I mean, one-half.

Potter Stewart:

One-half.

Leonard M. Henkin:

But if there were more than one child —

Potter Stewart:

All of them together will get money?

Leonard M. Henkin:

If there were two children then they will get two-thirds and the mother gets one-third but the mother was — the mother of this child was dead.

The respondent is not the mother of the appellant.

She is the window —

Potter Stewart:

No, widow of the deceased.

Leonard M. Henkin:

Of the decedent.

Potter Stewart:

And under —

Leonard M. Henkin:

She was appointed administrator as his window.

Potter Stewart:

I see and in that situation, if this had been a legitimate child under the laws of New York, how would the —

Leonard M. Henkin:

He was —

Potter Stewart:

— decedent’s estates had been shared?

Leonard M. Henkin:

One-third to her and two-thirds to the two children.

Potter Stewart:

There is another child?

Leonard M. Henkin:

There is another child.

Potter Stewart:

A legitimate child?

Leonard M. Henkin:

No, illegitimate child also.

Potter Stewart:

I see.

Leonard M. Henkin:

But the one that I represent and the one who made an application and who is the appellant is one of the two children.

Potter Stewart:

I see, one of the two illegitimate children?

Leonard M. Henkin:

Right.

In addition to our argument that, this case is control by the decision in Trimble versus Gordon by the fact that this, an acknowledgment in writing, acknowledged before a notary which is one of the grounds specified in note 14 to the gist of the decision considering the language immediately preceding that note in the text.

We say, that under the New York law, Section 24 of the Domestic Relations Law, creates two classes of illegitimates.

Those whose natural parents went to a marriage ceremony before or after their birth, no matter how invalid is that marriage because that Section specifically says, “That if the natural parents of an infant marry, regardless of how invalid that marriage is, that child is a legitimate child of both its parent who went through that marriage ceremony.”

We say to you that consequently, although, the Court of Appeals completely ignored our argument to that respect, that Section, when contrasted to Section 4-1.2 of the decedent’s estate law creates entirely a different class of illegitimates.

As to those to as to whom there was a marriage ceremony, even though invalid, they are entitled to inherit, but because our client’s parents complied with the New York statute and did not marry, our child — our appellant is denied the right to participate in his father’s estate because as to him, the bar of Section 4-1.2 is interposed and he is held to be illegitimate.

And I say to Your Honors, that this particular distinction into those two classes by virtue of those two sections has absolute no logic, no reason, and absolutely is discriminatory, and denies my client equal protection of the laws.

Warren E. Burger:

Your client could have been — had all the protection you now seek without his parents being married.

If he — if the father, the natural father had complied with the statutory requirements, is that not so?

Leonard M. Henkin:

He could not do it, if Your Honor pleases.

He could not comply with the statutory requirements because this particular Section which is cited in the opinion, in the dissenting opinion in the Court of Appeals on the second appeal pursuant to your referral was not in effect until long after the father died.

At the time the father was living, there was no such Section and if there was any attempt made by the father to bring the proceeding to get and order of affiliation such an application would have been denied as it was denied in matter of Ricky M. versus Sharon R., 49 Appellate Division 2nd 1035, and it couldn’t be done at that particular time.

William H. Rehnquist:

Mr. Henkin you said a moment ago that your — the father and mother here complied with the New York law and did not marry.

Would you explain what you meant by that?

Leonard M. Henkin:

Yes, because the father had a wife living at the time, who was the widow, the respondent in this case who does not appear on this appeal.

William H. Rehnquist:

So, he would have been guilty of bigamy had a married —

Leonard M. Henkin:

That is correct, but the statute Section 24 of the Domestic Relation’s Law specifically says, “That regardless of the validity of the marriage, even if the marriage is not valid, even the marriage is absolutely no good, from its inception, any child born before or after is a legitimate child of those people who went through a marriage ceremony if they are the parents of that child, without any proof or whatsoever being required of compliance with an order of affiliation or any other requirements.

Leonard M. Henkin:

The fact of marriage as to those children were there is, even the bigamous marriage is sufficient to make them legitimate.”

Whereas to all other children, where there was no marriage bigamous or otherwise, there is under the New York statute an absolute requirement that at the two years of age, a child should go or his parents should go and make thing application for an other affiliation because if that order of affiliation is not a applied within two years after the child is born, regardless, even though there was such a situation as we have in the Trimble versus Gordon case, that particular child, no application having been made within two years, would not be given a right to participate in the estate because that is the provision of the statute.

Harry A. Blackmun:

But if he still draw will?

Leonard M. Henkin:

Yes, Your Honor, but in Gordon versus Trimble, this Court said that they will does not have to be drawn and that that fact that no will has been drawn has no constitutional significance as to the right of the child.

William H. Rehnquist:

Your client also challenged the two-year provision of the New York affiliation law, did it not in the separate attack?

Leonard M. Henkin:

We raised that question in both of our appeals.

The Court of Appeals said that because there is no question that no other affiliation was so ever entered we now don’t claim at such an order was entered we should not attack two-years provision.

But we say to Your Honors, even if at the age of 15, he got an order affiliation, assuming he did he had such an order, it wouldn’t have helped him because he couldn’t have participated in the extent —

William H. Rehnquist:

Except you could have challenged the statute on that ground that you did challenge then but wasn’t passed on?

Leonard M. Henkin:

But we are challenging the statute on the ground of Gordon versus Trimble and also because Section 24 of the decedent estate law created two classes of illegitimates without any distinction between them, except the fact of marriage.

I will say to you that just because the marriage did not take place, the New York Statute requires together an order affiliation and which is discriminatory.

Byron R. White:

Well in Trimble wasn’t there or hadn’t there been a judicial determination —

Leonard M. Henkin:

In Trimble —

Byron R. White:

— prior to the death of the father?

Leonard M. Henkin:

There was a judicial determination.

Byron R. White:

Not here?

Leonard M. Henkin:

In this case, there wasn’t.

But under note 17, this Court said, “that it is not necessary to have judicial determination and acknowledgment is sufficient under the note 17 to have the same effect as a judicial determination.”

Byron R. White:

But the fact is if there was a judicial determination in Trimble?

Leonard M. Henkin:

Yes, that is correct.

There was none in this particular case.

I would say that where the proof is such that it’s clear that there is no issue of paternity such as here, where there is an acknowledgment and support that there is no requirement to have a judicial determination because this is going from the middle ground that the Court spoke up in Gordon versus Trimble to be extreme of requiring judicial determination within two years after the birth of the child and no child could have been that smart to get that determination at that age or to have the parents of a child who are living in peace together to go and apply all of a sudden where the man is supporting the woman and the children for her to going apply for an order affiliation.

Accordingly, as Mr. Justice Cook and Mr. Justice Fagg would said, “This will be serving only to break up the family for a mere formality where there is no reason why the child is — should have such order applied for because where the father is voluntarily supporting his children, then there is no reason to make a court application.”

Accordingly, the children of the involuntary parents or involuntary father will be benefited, but the children of the voluntary father, who is supporting them, would be denied the right to support and the right to distribution as to their estates.

Harry A. Blackmun:

What’s mother’s — what’s the widow’s position in all this —

Leonard M. Henkin:

They were originally she opposed the application.

Harry A. Blackmun:

She’s taken the position that this is not his child, is that not correct?

Leonard M. Henkin:

I beg your pardon?

Harry A. Blackmun:

I say, has not the widow taken the position that your client is not a son of the decedent?

Leonard M. Henkin:

That was her original position but she admitted on the first appeal to the Court of Appeals that the issue involved was as to whether or not a child could participate by raising, that was the point that they making their first appeal, when we first won before this Court.

Potter Stewart:

Mr. Henkin, I want to be sure I didn’t misunderstand you.

Do I correctly understand that it’s — you tell us that the decedent could not in fact or in law, have secured a certificate of affiliation during his life time?

Leonard M. Henkin:

That is correct, Your Honor, because Section 522 —

Potter Stewart:

Yes.

Leonard M. Henkin:

— of the Family Court Act was amended to permit such an application to be made by laws of 1976, Chapter 665, taking effect as of January 1, 1977.

Potter Stewart:

So that during his lifetime he could not have —

Leonard M. Henkin:

Make such an application.

Potter Stewart:

— have a secured an order affiliation?

Leonard M. Henkin:

And if he made such an application during his lifetime under the matter of Ricky M. versus Sharon R, 49 Appellant Division, 2nd 1035 such application would have been denied.

Potter Stewart:

And is that in your — is that case in your brief?

Leonard M. Henkin:

No, it is not, if Your Honor please.

Potter Stewart:

Could you give me that citation again.

Leonard M. Henkin:

Matter of Ricky M. versus Sharon R., 49 Appellant Division —

Potter Stewart:

49?

Leonard M. Henkin:

49 Appellant Division 2nd —

Potter Stewart:

Right.

Leonard M. Henkin:

1035, 1975 Case.

Thurgood Marshall:

And why was he denied?

William H. Rehnquist:

Mr. Henkin, you —

Leonard M. Henkin:

I beg your pardon?

Thurgood Marshall:

Why was he denied?

Leonard M. Henkin:

Because there was not provision in the statute at that time for the father to make such application.

The statute was amended only in 1976.

Thurgood Marshall:

You mean, up until 1976 in New York, it must have been the last thing?

Leonard M. Henkin:

In this man, he was killed in 1974, if Your Honor pleases.

Thurgood Marshall:

What I mean in, if New York didn’t get around to letting children inherent from their father when 1976, wouldn’t that make on to the last date to do it?

Leonard M. Henkin:

They — you’re talking with reference to the children born before that time?

Thurgood Marshall:

Yes.

Leonard M. Henkin:

That’s why were here, claiming that the statute is unconstitutional.

William H. Rehnquist:

But the child or mother can apply, can’t they?

Leonard M. Henkin:

Yes, the mother could apply —

William H. Rehnquist:

So —

Leonard M. Henkin:

But the mother wouldn’t — didn’t apply because they were living together as one family.

William H. Rehnquist:

Well, so —

Leonard M. Henkin:

That’s the reason for it.

William H. Rehnquist:

Your statement is really a very technical one that the father couldn’t apply.

Certainly, a proceeding could’ve taken a place in which the father could have admitted it?

Leonard M. Henkin:

If the mother applied, if the father who did support her, and also, she had to apply only within two years after the birth of the child.

The Attorney General says that if — in Gordon versus Trimble case, if that case arose under the statute of the State of New York that child because there was adjudication would have been entitled to inherit.

We so respectfully submit to you that that is not the case because the New York statute required that that application be made only within the first two years after child was born.

William H. Rehnquist:

So, the New York Court of Appeals and its opinion at A-2 in this case says that, “Under our New York statute, the right to inherit depends only on proof that Court of competent jurisdiction is made in order affiliation declaring paternity during the lifetime of the father.”

That truly is —

Leonard M. Henkin:

That is not correct because the necessity was not provided.

William H. Rehnquist:

Well, we’re certainly not going — well we’re not going to second guess, let say of, New York Court of Appeals on what New York law is?

Leonard M. Henkin:

Well, if Your Honor please, that the statute is printed in the record and it’s in my brief and it’s the language of that statute is very clear.

Potter Stewart:

Has to be made during the pregnancy of the mother or within two from the birth of a child?

Leonard M. Henkin:

Right.

That is correct.

Potter Stewart:

That’s what the statute says?

Leonard M. Henkin:

That’s exactly what the statute says.

Potter Stewart:

But the —

Leonard M. Henkin:

So, when they made that statement, they’re not quoting the exact language of the statute.

As matter of fact, I think there was a note somewhere that they didn’t reach that point.

Thurgood Marshall:

You mean the Court of Appeals doesn’t have to advance sheets?

Leonard M. Henkin:

Beg your pardon?

Thurgood Marshall:

You mean the Court of Appeal doesn’t have the advanced sheets?

Leonard M. Henkin:

The advanced — the decision of the Court of Appeals — the opinion of the Court of Appeals, if Your Honor pleases, are printed, the first one in Appendix A, in the jurisdictional statement 75-1148.

Potter Stewart:

Right.

Thurgood Marshall:

Right.

Potter Stewart:

Now, you do say that order affiliation could’ve been secured under New York law at the behest of — somebody other than the natural father during the natural father’s lifetime?

Leonard M. Henkin:

Yes.

That’s correct, Your Honor.

Potter Stewart:

That is by the mother, the natural mother?

Leonard M. Henkin:

Natural mother could’ve made the application.

Potter Stewart:

Or anybody else, the child?

Leonard M. Henkin:

So far as — the child yes.

Two-year old child could possibly do it if he was smarter enough at the age of two to do so.

Potter Stewart:

And the — but you say that as a matter of practical fact the natural mother wouldn’t have done it and why was that?

Leonard M. Henkin:

The natural mother would not have done it because she was living together with the father and he was supporting her and the children.

Potter Stewart:

Was that — was she the — his sister-in-law?

Leonard M. Henkin:

No.

Potter Stewart:

What was she?

She — her name was Lalli too, wasn’t it?

Leonard M. Henkin:

Her name was Lalli because she was living with Mr. Lalli.

Potter Stewart:

Yes.

Leonard M. Henkin:

That was her name by courtesy.

They were maintaining their household.

He bought her a house where she lived together with the two children of this particular, what shall I say, “Relationship” and in addition to the child born to her by prior marriage — by prior relationship with some other man.

Potter Stewart:

And where was Mrs. Lalli all this time?

Leonard M. Henkin:

She was living in another house.

Potter Stewart:

He had to know.

So, the captain’s paradise?[Laughter]

Warren E. Burger:

I think your time is expired now, Mr. Henkin.

Leonard M. Henkin:

Thank you, Your Honor.

Warren E. Burger:

Mr. Strum.

Irwin M. Strum:

Mr. Chief Justice and may I please the Court.

The New York statutory scheme does not discriminate against illegitimates inheriting either from their mother or father.

It merely provides in the case where an illegitimates is claiming through his father that there be an order of a New York Court determining parentage made during the lifetime of the father.

While the statute does refer to a two-year requirement, the New York courts have not enforced that two-year requirement and as you will find in the brief filed by the Attorney General, there are decisions which indicate that is not the law of New York at the present time, although there has not been a determination on that, but the New York Court of Appeals.

Warren E. Burger:

The Court of Appeals has never read it out of the statute, do they?

Irwin M. Strum:

No.

It is never read it out of the statute.

The law —

Warren E. Burger:

In this case, they just ignored it?

Irwin M. Strum:

Yes.

The lower courts have.

They have treated it for various reasons constitutional and otherwise as just being an unwise legislative discribment.

But other than that, the requirement that the order be obtained during the lifetime of the father, I think is a reasonable one.

I think we’re here not to consider the peculiar equities of this particular case and there maybe equities on the appellant side, I don’t argue that there are not.

What we’re here to evaluate is the New York statutory scheme and whether the legislature of the State of New York in protecting its citizens and in passing laws with regard to decedent’s distribution, could require as a requirement in the case of illegitimates inheriting from their father that there be a Court order during the lifetime of the father in order to prevent fraud, in order to prevent a situation where New York estates would not be closed.

Obviously, situations could arise where illegitimates are not known off and they could make claims later on, and it would destroy the sanctity of decrees which determine distribution in the State of New York.

And I think for that reason, the legislature as indicated by the report of the Bennett Commission was justified in making this requirement.

I think, the requirement is a reasonable one and I think, that is the only test.

Warren E. Burger:

Is it reasonable to assume that the two-year limit was placed by the legislature or probably placed there by the legislature, so that the facts could be ascertained while there were people around who could test the fact?

Irwin M. Strum:

Yes, I would assume that was the purpose behind it.

I can understand the difficulty in requiring it within two years, but of course, if you’re dealing with the very young child, baby, and perhaps, you don’t want to cut off that child’s right.

So, I can understand why the New York Courts have gone out of their way to exercise the two-year provision, but I also understand why it’s there and I think it’s a functional purpose.

Warren E. Burger:

Does the acquiesce of the Court of Appeals or the apparent acquiesce of the Court of Appeals in this interpretation by its constituent courts, mean the same thing or should it mean the same thing to us as a holding of the highest court of the state construing the statute?

Irwin M. Strum:

Well, I would not classify it as a holding and I would not go so far.

But I —

Warren E. Burger:

Well, but should it be equated?

Irwin M. Strum:

I think for the purposes of this argument and for the purposes of the constitutionality of the New York, yes, I think it can be equated.

Potter Stewart:

But in any event there was no order of affiliation until it’s any —

Irwin M. Strum:

In this case there was none whatsoever and that —

Potter Stewart:

During the lifetime of the father?

Irwin M. Strum:

No, and there was no attempt to get one.

Potter Stewart:

Or ever?

Irwin M. Strum:

Yes.

And let me — let’s be clear about this.

This statute went into effect in 1967.

Irwin M. Strum:

The decedent in this case —

Potter Stewart:

1976, we were told.

Irwin M. Strum:

No.

The statute — this statute, the EPTO went into effect in 1967.

The decedent died in 1974.

There was ample opportunity.

The appellant was an adult.

There was an ample opportunity for him to go to court during a lifetime of his father.

If he believe that there was justification for such an application.

Potter Stewart:

It is 4-1.2 went into effect in 1967?

Irwin M. Strum:

Yes, that’s correct.

Potter Stewart:

Yes.

Irwin M. Strum:

That is the statute now before this Court.

Potter Stewart:

Yes, I know.

Irwin M. Strum:

No other statute.

Potter Stewart:

We would —

William H. Rehnquist:

Or if he sought counsel, counsel might have advised him that since the two-year period had expired, it was no use?

Irwin M. Strum:

Well, there’s no showing that he attempted to seek counsel.

Furthermore, we’re not discussing, I believe Your Honor, probabilities or possibilities.

We’re discussing of statutory scheme and I think the legislature in making that determination had every right to reason require this and I think, he had certainly an opportunity to go to Court and make an application and if the Court then would have turned him down, he could have appealed on that basis.

Byron R. White:

Well, under that if you’re talking about the statutory scheme, I suppose under the statute, if there was a Court order prior to the death of the father, obtained on the petition of either the son or mother it would be — it would satisfy the statute whether or not the father was around, could be found, or participated in the hearing?

Irwin M. Strum:

I would assume so, Your Honor.

Byron R. White:

They could go to Court and say the father had disappeared and still —

Irwin M. Strum:

Well, he could’ve been served by publication.

Byron R. White:

Alright.

But nevertheless, he need —

Irwin M. Strum:

No.

Byron R. White:

He didn’t need to be available to give evidence or anything?

Irwin M. Strum:

No.

Thurgood Marshall:

Mr. Strum, if I —

Byron R. White:

Well, what’s wrong then with the day after the father dies, what’s wrong with determining the inheritance?

Irwin M. Strum:

Well, you’re then depriving the father of an opportunity to give evidence.

There’s a difference between him having the right to be there and give evidence, and participate if he so chooses and being precluded in the absolute by his death and I think that’s a distinction which is important.

Thurgood Marshall:

How do we say that this statute is constitutional and not unconstitutional because the two-year provision will never be enforced, Is that what you want us to say?

Irwin M. Strum:

No, Your Honor.

I think, we don’t reach that question because the two-year provision has nothing to do with this case.

Thurgood Marshall:

But it would — we only have to talk about that statute?

Irwin M. Strum:

Yes, but I —

Thurgood Marshall:

We don’t have to mention it?

Irwin M. Strum:

I don’t believe, Your Honor that we should be talking about a statute in the abstract necessarily.

We should be talking about a statute as applied and I think as applied in this case, the appellant hasn’t ripened question because there was no attempt to obtain the order of affiliation within the two-year period and furthermore, because New York doesn’t apply the two-year requirement.

Thurgood Marshall:

You want us to just ignore the statute?

Irwin M. Strum:

I would suggest that the two-year requirement is not applicable to this case.

Thurgood Marshall:

I’m saying about the statute?

Irwin M. Strum:

No, the statute should not be ignored, it should be enforced.

Thurgood Marshall:

Well, how can we mention the statute and ignore a part of it?

Irwin M. Strum:

Well, the part that we are ignoring or I suggest be ignored is not in this case.

Thurgood Marshall:

You’re saying in this case — we say that this case which involves a 28-year-old man is not bound by the two-year old provision?

Irwin M. Strum:

That’s correct, Your Honor.

Thurgood Marshall:

I don’t know what I think of somebody wrote that?

Potter Stewart:

Well, is it true that the Courts in New York have all agreed that the two-year provision is invalid or should, should be ignored?

Irwin M. Strum:

The Courts that have heard that question have agreed to that.

Potter Stewart:

Yes, that’s what I’m talking about.

Thurgood Marshall:

And will you give us the citation so we —

Potter Stewart:

In his brief.

Irwin M. Strum:

There are citations in the brief, Your Honor.

Thurgood Marshall:

A citation would say that we are ignoring the two-year —

Irwin M. Strum:

Yes, there are.

They get a rounded for various reasons.

Thurgood Marshall:

No.

Thurgood Marshall:

Well, that’s not what I said.

Do you have one that says, “We ignore it?”

Irwin M. Strum:

Not those words, Your Honor.

Thurgood Marshall:

That’s right, I didn’t think you did.

I didn’t find it?

Irwin M. Strum:

But the Courts have failed to apply it.

Thurgood Marshall:

Are we limited to do that?

Irwin M. Strum:

Well, I think you are limited to the facts in this case and the application of those facts to the statute.

John Paul Stevens:

Mr. Strum if we should disagree with you, I’m not — don’t know with the Court will do, on the issue of whether the requirement of affiliation during the lifetime of father is constitutional.

Assume we conclude that to be unconstitutional then we must squarely faced the two-year problem, mustn’t we?

Irwin M. Strum:

Well, I think if you’re going to say that the requirement that it’d be during a lifetime of the father is unconstitutional then I think the whole statute would probably fail.

John Paul Stevens:

Then you would can see that the two years statute — well, I don’t understand how you can concede what you in substance do, although not quite in words that the two-year provision is unreasonable because it retreats some illegitimates irrationally in a different way from other illegitimates without a irrational justification.

How can you say that and say that the, say five years after birth the father dies and still the child must be barred?

Irwin M. Strum:

I personally, I’m not suggesting to Your Honor that the two-year requirement is unreasonable.

John Paul Stevens:

Well, you just —

Irwin M. Strum:

I am saying to you that the New York Courts when considering the —

John Paul Stevens:

Well, you’ve said, “We should assume that the New York Courts would not enforce it because it’s perfectly obvious that it’s unreasonable,” that’s the substance of what you’ve said —

Potter Stewart:

You cite in this cases.

Irwin M. Strum:

Yes.

Potter Stewart:

On the bottom —

Thurgood Marshall:

Let me just quote the Court of Appeals because they have passed it on their own statute and they didn’t say a word about the two-year?

Irwin M. Strum:

No, they didn’t because they felt it was not —

Thurgood Marshall:

Well, why don’t we just base our opinion in what they say?

Irwin M. Strum:

Well, that’s what I’m asking this Court to do.

Thurgood Marshall:

I see.

Potter Stewart:

The case —

Irwin M. Strum:

The only reason I raised the two-year question is because the appellant raised it.

Potter Stewart:

The case is to which you refer are those cited on the bottom page 4 of your briefs. Matter of Thomas —

Irwin M. Strum:

Yes, Matter of Thomas, Matter of Flemm.

Potter Stewart:

Matter of Flemm.

Irwin M. Strum:

Yes.

And there was another case I believe Matter of Nurse.

Suzanne McGrattan:

Matter of —

Irwin M. Strum:

Yes.

We will provide those citations to the Court.

Potter Stewart:

Well, you already provided two of them and you represent that that’s the — that there are no cases contrary to that that you found?

Irwin M. Strum:

I — know no cases where that question has arisen where the New York Courts have applied that two-year statute.

I believe that the statute in Illinois which this Court considered in Tremble versus Gordon is completely different.

That statute prohibited, prohibited in the absolute inheritance from a — by an illegitimate from its father except under one specific, very limited circumstance that of a — where the natural mother and father married and there was an acknowledgment to that point.

The New York statute does not attempt in any way to discriminate.

It merely says, in the case where someone is claiming to be an illegitimate child through a father that there be a Court order determining that during the father’s lifetime.

And I respectfully submit that as a substantial difference, not only in approach but in meaning.

Potter Stewart:

Or that — or that the natural mother and the father have married either before or even after the birth of the illegitimate child?

Irwin M. Strum:

Yes, that would legitimatize.

Potter Stewart:

And even though the marriage be void or voidable?

Irwin M. Strum:

Right.

That would be illegitimately under another statute which is not at issue here.

If there any other questions —

Potter Stewart:

You don’t have to — you don’t have to have an acknowledgment, you just have to have a marriage, correct?

Irwin M. Strum:

That’s correct.

Potter Stewart:

Unlike the Illinois law?

Irwin M. Strum:

Unlike the Illinois statute and I submit that had the situation arose as applied in Illinois and New York, there would have been — an inheritance would’ve been permitted because there was a Court order.

That’s all the New York law says there has to be a Court order.

Thurgood Marshall:

You mean in New York somebody is got 56-year old child and they get married at that child is legitimatized?

Irwin M. Strum:

Sure.

Thurgood Marshall:

Merely by the marriage?

Irwin M. Strum:

That would legitimatize the child.

Potter Stewart:

Well, Mr. Strum.

She has to marry the —

Irwin M. Strum:

The natural father, yes.

Potter Stewart:

Well, how do you know?

What if she just marries John Smith and —

Thurgood Marshall:

That’s right, doesn’t it?

Irwin M. Strum:

Well, you wouldn’t know except it would be a question to proof.

Thurgood Marshall:

Yes.

John Paul Stevens:

Mr. — General Strum, let me question you once more about the state interest that this statute vindicates and we’re talking about the requirement that the order be obtained during the lifetime of the father.

As I understand that the state interest is giving the father the opportunity to deny parentage?

Irwin M. Strum:

That is one side of —

Byron R. White:

And how’s — oh, what else is there?

Irwin M. Strum:

This — also the state interest is in seeing to it that there’s an orderly distribution of estates.

In other words, the situation is that we don’t wish anyone after somebody dies to come in and make a claim because of the difficulty of proof, and because of the question of, “You would have to keep estates open for an inordinate period of time”.

John Paul Stevens:

Why?

Why, why couldn’t you have the normal rule you do on the states that claims to have to be filed within a limited period of time?

I don’t understand —

Irwin M. Strum:

But that — because you would have to publish —

John Paul Stevens:

You do it anyway because don’t you occasionally have estates in which people claim to be legitimate children that there is a contest over there?

Irwin M. Strum:

Yes.

But you would be opening the — opening the —

John Paul Stevens:

Don’t you have to make that claim within a specified period of time?

Irwin M. Strum:

Oh, sure.

John Paul Stevens:

Why couldn’t the same rule take care of this problem?

For what —

Irwin M. Strum:

It could except — except that you’re going to have people who are going to come in and make claims and say, they didn’t know or they had no opportunity of knowing.

John Paul Stevens:

You have that with legitimates too.

You have the same things.

Let’s focus for moment on your — on your primary interest I gather is that you want to give the father the opportunity to deny parentage?

Irwin M. Strum:

That’s correct.

Byron R. White:

That’s, that’s the real reason for the cut-off.

Well, supposing the papers of the father and there is abundant evidence to the fact that he is not just as, sort of someone ambiguous what you have here, but he is repeatedly acknowledged it, written it out many, many times that the person involved is my true and natural son.

What is the state interest in giving such a father an opportunity to contradict what he has said repeated, when he said repeatedly to the contrary?

Irwin M. Strum:

How Your Honor do you draw the line.

What are we going to say?

Byron R. White:

Till we make to say in terms of standard of proof.

You might require proof beyond all doubt, beyond a unreasonable doubt, something like that.

But when you have un-contradicted proof and there are all agreement on the fact, and I know you don’t have that here, then, what’s the state interest?

Irwin M. Strum:

Well, again, I think — I think —

John Paul Stevens:

And then, do you not discriminate against some illegitimates?

Irwin M. Strum:

No.

I don’t think you discriminate.

I think the legislature has the right to set the standard of proof.

Now, providing that standard of proof is a reasonable one.

Providing the requirements are reasonable like keeping that —

John Paul Stevens:

This is not a standard of proof.

This is saying that no matter how convincing the proof, this is standard of eligibility.

Irwin M. Strum:

Alright.

It is that but it is a standard of eligibility by way of judicial determination.

Potter Stewart:

It’s a manner of proof?

Irwin M. Strum:

That’s correct.

And I think the legislature has the right to say, “We want a judicial determination, when it can be had, and when it can fairly be had” not when somebody can be put upon, I’m not saying that it would happen in every case or any case, I’m saying it is to preclude the possibility.

So, you have to draw a line.

You have to draw standards.

You have to mark everything off.

If you don’t mark everything off, what you’re going to have is confusion and chaos and I think the legislature has a right to do that.

I think as long as they act fairly and reasonably.

I think it’s within their right and I don’t think this Court —

John Paul Stevens:

The sole justification according to you is to protect the right of the father to testify to the contrary when the record makes it clear he has no such desire?

Irwin M. Strum:

Well, but that’s a determination that you making after fact.

I think the legislature in the right to protect its citizens has the right in the first hand to set the standards and I think people are then required to live up to those standards like in any other situation.

I think, we —

Warren E. Burger:

What you’re saying perhaps is that New York is not obliged to have a perfect statute, so long as they have a reasonable one?

Irwin M. Strum:

I quite agree with the Chief Justice.

Harry A. Blackmun:

Does the state take any position with respect to this claimant that all was to whether he is or is not the natural child of the decedent?

Irwin M. Strum:

I have no knowledge of the facts.

This case came up on very incomplete record.

Your Honor, there was a motion made to dismiss with regard to the status.

So, the only issue before the Court was the status of the claimant.

Now, the Attorney General was not a party at that time.

We’re only a party with regard to the constitutionality of the state’s statute and I really don’t want to comment —

Harry A. Blackmun:

So, you’re conceding nothing factual here, don’t you?

Irwin M. Strum:

No, I’m not.

Because I — I’m not in a position to, Your Honor.

John Paul Stevens:

But it is clear that you’re argument would be precisely the same, if you were prepared to concede the facts?

Irwin M. Strum:

Yes, Your Honor.

John Paul Stevens:

We should treat the legal issue as though the facts were tantamount to be in conceded, realizing that they would be challenged later?

Irwin M. Strum:

I agree with that Your Honors.

Yes.

Warren E. Burger:

Thank you, gentleman.

The case is submitted.

Your time is expired.