Paulussen v. Herion

LOCATION:Hardwick’s Apartment

DOCKET NO.: 85-88
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: State appellate court

CITATION: 475 US 557 (1986)
ARGUED: Mar 05, 1986
DECIDED: Mar 25, 1986

Esther L. Hornik – on behalf of the appellant
Joseph N. Onek – on behalf of appellee

Facts of the case


Audio Transcription for Oral Argument – March 05, 1986 in Paulussen v. Herion

Warren E. Burger:

We will hear arguments first this morning in Paulussen versus Herion.

Ms. Hornik, you may proceed whenever you are ready.

Esther L. Hornik:

Mr. Chief Justice, and may it please the Court:

The issue in this case is whether the Pennsylvania statute of limitations of six years from birth in a support action for illegitimate children violates the equal protection clause of the Fourteenth Amendment where no similar restriction exists in support actions for legitimate children.

There are two points to be made: first, the statute is unconstitutional.

It treats legitimate and illegitimate children differently without a substantial state interest for such discrimination.

In particular, the only conceivable state interest of protection from stale and fraudulent claims is clearly weak.

Current scientific procedures are sufficiently precise so that the risk of false paternity charges in no sense balances against unfair loss of support for illegitimate children.

Secondly, this case is not moot.

Although current Pennsylvania law establishes an 18-year statute of limitations in response to federal law, the law operates only from December 1st of 1985.

Pennsylvania precedent suggests that the new law does not apply retroactively to a back child support award so that the illegitimate child in this case would lose all right to child support from the date of filing of the complaint in this action, February 11th of 1980.

Mrs. Hornik, may I ask, that statute was enacted since this case was decided below?

Esther L. Hornik:

Yes, that is correct.

The statute was enacted–

Warren E. Burger:

If it did apply retroactively, would there be any issue for us to decide?

Esther L. Hornik:

–If it did apply retroactively, no, there would be no issue.

But Pennsylvania precedent suggests that the law–

Well, suggests, you say?

Esther L. Hornik:

–Well, actually, no, there’s definite Pennsylvania precedent, the cases of Williams versus Wolfe, Hatfield versus Hazel, Hatfield versus–

Well, I just wondered if we ought not to… why should we address this issue if in fact a new statute applies to this case?

Why shouldn’t we send it back to find out?

Esther L. Hornik:

–Because this new… the new statute, the one that gives an 18-year limitation period, contains no language in it to suggest that it would apply retroactively.

Pennsylvania has a rule of statutory construction that in the absence of–

Well, my only suggestion is, wouldn’t the Pennsylvania courts be better able to… more qualified to address this application than we are?

Esther L. Hornik:

–No, because it’s already been decided under Pennsylvania precedent that the law in existence at the time of the filing of a paternity complaint is the law to be applied in the case, and since this case was filed in February of 1980, the law to be applied would be the six-year statute of limitations that was in existence in 1980.

And has the… the courts of Pennsylvania, in any case other than yours here, dealt with this statute?

Esther L. Hornik:

With the six-year, statute, or with the 18-year?

The 18-year.

Esther L. Hornik:

No, because it’s so new, it just became effective on December 31st of 1985.

No court to my knowledge has had an opportunity to review its implications.

Well, as Justice Brennan has suggested, can you suggest a reason why the Pennsylvania courts shouldn’t deal with this first before we undertake to do something, just as a matter of policy and practice if nothing else?

Esther L. Hornik:

I believe that it’s more important for this Court to make a determination regarding the constitutionality of the six-year statute of limitations that was in existence at the time of the filing of the complaint rather than sending the case back to the Pennsylvania court for a determination that has already been made under Pennsylvania precedent.

In other words, in the Hatfield versus Hazel Baker case, in the Jenner versus Stillman case, and most particularly the Williams versus Wolfe case, the Pennsylvania courts have spoken and said the appropriate… that the date of the filing of the complaint is the date–

Felix Frankfurter:

May I ask you this.

Supposing you filed this complaint on the 1st of December of last year instead of now, and then on January 15th of something they came in with the statute of limitations defense.

Would you not then have argued that the new statute applies?

You wouldn’t have just thrown in the towel on the issue, would you?

Esther L. Hornik:


I mean, there must at least be an arguable position to the contrary?

Are you willing to concede on behalf of your client that it does not apply?

I hope you won’t, but–

Esther L. Hornik:

–Well, I… there’s one peculiarity of Pennsylvania law which must be made clear, and that is that the order of child support in every support case is retroactive to the date of the filing of the complaint, and so that in Pennsylvania–

–I understand.

You’re making the argument against the statute applying.

It seems to me if you were really put to the test you might come up with some arguments for the other position, wouldn’t you?

Esther L. Hornik:


After all, you’re representing a client here.

You’re not trying to get a constitutional issue decided.

Esther L. Hornik:

–That’s correct, Justice Stevens, but since there’s this particular rule of civil procedure which states that an order of support is retroactive to the date of the filing of the complaint, and I know of no Pennsylvania case in which child support was awarded for a period prior to the date of the filing of a child support complaint, I think I would have a difficult time in the Pennsylvania court, finding a favorable response to that argument.

I don’t understand why we can’t allow the State of Pennsylvania to interpret its own laws.

Isn’t that what we normally do?

Esther L. Hornik:

No, for example–

Well, tell me where we didn’t.

Esther L. Hornik:

–In the Mills case that was before you the same thing happened.

During the pendency of the Mills case the Texas statute was changed from one year to four years, and you decided the constitutionality of the one-year statute of limitations in paternity cases in the Mills case, because you made the determination that the child in that case would not have gotten the benefit of the four-year statute and would have been barred from continuing on in a paternity case.

It’s a little different.

Esther L. Hornik:

Well, in this case–

William H. Rehnquist:

All we’re saying is, there’s a Pennsylvania statute that’s come in between this case and this Court, and in the interim we will send it back to let the State pass on it, on its statute.

Esther L. Hornik:

–Justice Marshall, I believe that one must distinguish between the right to file a complaint and the remedy in this… now, under the new statute it’s clear that Georgeann would have the right to file a new paternity and support petition.

That petition… her award of child support would be retroactive to the date of the new filing, which would be a date after December 31st of 1985.

Esther L. Hornik:

Her rights to back support from February 1980 are jeopardized, and it’s an amount–

Well, I didn’t suggest that.

I suggested that we send this case back, not the new case.

Esther L. Hornik:

–The new statute is not in issue in this case.

This case falls under the old statute.

We send it back… well, who decides whether it is under this statute or the old one?

Esther L. Hornik:


Warren E. Burger:

The state court should decide that.

The state court decides its jurisdiction, not us.

Esther L. Hornik:

–I believe that the state court has already decided that.

Under the old statute?

Esther L. Hornik:

But the old statute… well, okay, the old statute was enacted in 1978.

For example, in this case, this child was born in 1973.

Now, in Williams versus Wolfe the Court was considering the retroactivity of a statute of limitations, and if you look at the facts in that case the child was already six years old in 1979 when the complaint was filed.

And so, what the Court was asking is, can we apply a newly enacted statute of limitations of six years to a case which has been filed one year after the effective date of this Act, and the child was already five at the age of the enactment of any statute, and the Court ruled that the date of the complaint determined the law that would be applied in the case, not the date that the child was born, and not the effective date of the Act, but the effective date that the complaint was filed.

Georgeann Veronica Paulussen was born on today’s date, March 5th, in 1972.

At the time of Georgeann’s birth her mother, Barbara Paulussen and her putative father, George Ronald Herion, were not married to each other.

Georgeann’s mother and father continued to have a relationship through April of 1975, and throughout this time George Herion made voluntary contributions to Georgeann’s support, and then in April of 1975 all support ceased.

Barbara Paulussen filed a paternity action on behalf of Georgeann in the Court of Common Pleas of Bucks County on February 11th of 1980.

In this complaint George Herion is named as her father.

George Herion immediately raised at bar the six-year statute of limitations to Georgeann’s claim, pleading that the case was filed more than six years after Georgeann’s birth and more than two years after he had made voluntary contributions to her support.

There was no trial on the merits of Georgeann’s claim in the lower court.

By operation of law, she was barred from presenting her evidence to a tryer of fact.

Her evidence included results of red and white blood tests in which samples had been taken from her, from her mother, Barbara Paulussen, and from George Herion.

The results of these tests indicated that there was a 99.8 probability that George Herion was the father.

Cross motions for summary judgment were filed.

The mother’s motion challenged the constitutionality of the six-year statute.

The father’s motion raised the bar of the statute.

The lower court granted the father’s motion, George Herion, and denied Barbara Paulussen’s motion thereby dismissing the complaint.

The matter was then appealed to the Superior Court of Pennsylvania where again Barbara Paulussen’s constitutional challenge was denied.

Esther L. Hornik:

A Petition for Allowance of Appeal was filed in the Supreme Court of Pennsylvania.

It too was denied and the appeal to this Court followed.

The Superior Court of Pennsylvania ruled against Barbara Paulussen on the basis of a Pennsylvania precedent.

In the Pennsylvania Supreme Court case of Astemborski versus Sasmalzki, the Pennsylvania Supreme Court upheld the constitutionality of the six-year statute, and the Superior Court, being a lower court, felt compelled to follow the precedent of the higher court.

The Astemborski case had… the Astemborski court had initially considered the constitutionality of the six-year statute.

A petition for certiorari was granted by this Court, and then Judgment was vacated and the case was remanded back to the Supreme Court of Pennsylvania for consideration in light of this Court’s decision in Pickett versus Brown.

The Astemborski court reconsidered the constitutional question in light of this Court’s decision and reaffirmed its original decision, finding the six-year statute constitutional.

In Mills, this Court struck down a one-year statute of limitations from Texas as constitutionally invalid, and in Pickett a unanimous court struck down a two-year statute of limitations on the same basis.

In Mills and in Pickett this Court established a two-part test for analysis of the constitutionality of a paternity statute of limitations.

There had to be an adequate time frame for a paternity action to be instituted on behalf of illegitimate children.

There had to be a substantial state interest in avoiding stale and fraudulent claims to justify the discriminatory impact of this statute on the rights of illegitimate children, and other countervailing state interests.

Despite these guidelines for constitutional analysis, the Astemborski court found that the Pennsylvania six-year statute was constitutionally adequate.

The holding of the Astemborski court was in error.

First, is six years a constitutionally adequate length of time to bring a paternity action?

The answer must be no.

First, the child, Georgeann Paulussen, is a real party in interest here although her mother’s name appears in the caption, and there can be no assurance that her interest is identical to her mother’s interest.

The child cannot act on her own behalf but she loses important rights.

She cannot toddle into court to find her Daddy.

Her mother may be unwilling to sue in a timely fashion for her own reasons, whether these reasons be out of hate, love or utter indifference to the father.

The mother’s feelings can continue for many years, even if the father makes voluntary contributions to the support of the child or acknowledges the child’s paternity in writing after the six-year period.

Second, the financial needs of a minor child are not always predictable before he or she is six.

A child may not require her father’s financial assistance at age five, but at age 12 or age 17 may be in desperate need of such assistance.

As to the second prong of the test suggested by this Court, does the prevention of stale and fraudulent claims counterbalance the interest of the child and the countervailing interest of the State?

We present this issue by issue.

Is the prevention of stale claims really an issue?


Can an illegitimate child’s claim for ongoing financial support be considered stale?

The claim of a legitimate child is not considered stale.

Then, is the prevention of fraudulent claims a substantial state interest?

As this Court has noted, advances in scientific testing have attenuated the relationship between the statute of limitations and the State’s interest in the prevention of prosecution of stale and fraudulent claims.

Esther L. Hornik:

In the Congressional report accompanying the Child Support Enforcement amendment of 1985, it was noted that,

“Increased reliability of scientific paternity testing can exclude over 99 percent of those wrongfully accused fathers, regardless of the age of the child. “

Pennsylvania recognizes that the results of HLA testing are so reliable that they can be introduced as affirmative evidence of paternity in a paternity proceeding.

In our concern over the prevention of fraudulent claims, it should be recalled that in addition to the right to call upon powerful scientific tests, the accused father does not lose other defenses in contesting paternity.

The accused father has the right to a jury trial.

If indigent, the accused father has the right to counsel.

If indigent, the accused father has the right to free blood tests.

The accused father has the right to have the petition dismissed immediately if blood tests and tissue tests show that he is excluded as the father.

If the father is not indigent, then he has the right to be notified that he can have counsel at the proceeding and he has to be given an adequate amount of time to secure such counsel.

Also, the accused father can appeal the lower court decision on the basis of ineffective assistance of counsel.

And it’s clear in another context that Pennsylvania recognizes that it is possible to establish paternity well after six years have passed.

An illegitimate child can probe paternity after the father is dead, for purposes of intestate succession, if he or she can show paternity by clear and convincing evidence.

Ironically, more liberal rights are given to a child after the after the lips of his father have been sealed by death than when the father is alive to contest the claim.

In sum, it is Barbara Paulussen’s belief that the state interest in preventing stale and fraudulent claims is now as it was in 1980, quite minimal.

In contrast the countervailing state interest and the child’s interest in the timely determination of paternity are much greater.

As this Court has noted, there is a substantial countervailing state interest in seeing that justice is done and genuine claims for child support are litigated.

This conflicts with the arbitrary nature of a limitations period, that provides no exceptions for determination of a child’s paternity after the statutory deadline has passed, based on either the case’s unique facts and circumstances, or the quantity or quality of the evidence that a particular child can produce to prove that a particular man is its father.

Another countervailing state interest requires consideration of the cost benefit of a statute which grants financial immunity to a father for support obligations and possibly shifts that support obligation to taxpayers when the child’s mother is unable to support the illegitimate child, or is not adequately able to support the illegitimate child.

Counsel, I take it you would make the same argument whatever the statutory period is?

Esther L. Hornik:

That’s correct, and in Pennsylvania a child beyond the age of 18 has a right to ask the father for child support if she needs money for college expenses, if she’s impoverished or disabled, and so that the right for a legitimate child could continue on throughout the father’s lifetime, and so that even under the 18-year statute, I believe that there is an equal protection problem.

Of course, there is an important issue in the case of the illegitimate child, is the question of paternity, and with your legitimate child you generally don’t have that issue.

All you’re talking about is, how much does the father make and what are the needs of the child.

Esther L. Hornik:

Justice Rehnquist, that’s correct, but the illegitimate child never has the same procedure as the legitimate child because the illegitimate child has a two-part procedure.

For every case of an illegitimate child, you have to go through a paternity proceeding and then a support proceeding.

A paternity proceeding is a safeguard.

If you can’t make it through the paternity proceeding, you don’t go on to the support proceeding.

Whereas, for the legitimate child, because of the presumptions that operate in favor of legitimacy, all a legitimate child has to do is say, my parents were married, you know, at the time I was conceived or at the time I was born, or my parents were married after I was born, and I’m legitimate so I have the right to proceed to–

Well, that was really my point, that there is this separate issue in the case of the illegitimate child that might justify a state in treating that sort of issue and the time you can raise it differently, and all you’re arguing about, really, are the assets of the father and the needs of the child.

Esther L. Hornik:

–Well, the thing is that the procedure itself is a safeguard.

In other words, as long as… in other words, the legitimate child and illegitimate child should have equal opportunity to ask for a father’s support, and if a legitimate child has through age 50, to ask for a father’s support, then the illegitimate child should have the same time period.

Esther L. Hornik:

However, the illegitimate child will always have the burden of proving paternity.

Now, as I stated before, over 99 percent of fathers today can be excluded by tests as potential fathers.

So that you’re looking at a fractional class of fathers whose rights are being affected here, one percent are going to go to trial.

Whereas, you have the entire class of illegitimates which is over 18 percent now, of all births in the United States, are children born out of wedlock, which I believe the last statistic was that over 700,000 children being born out of wedlock each year.

Finally, the interests of the child are sacrificed, and the interest here… the child’s interests are paramount and I think that that’s out of focus in the way that these cases are being analyzed.

And the child’s interests are far more substantial than any risks associated with a post-six year paternity suit.

There is clear discrimination in the statute against an illegitimate child, and this Court has stated very clearly in many opinions that there must be special concern shown for an illegitimate child, and there are statutes that have classifications based on illegitimacy, are subject to a heigtened level of scrutiny, because an illegitimate child is not responsible for his or her status.

It’s the parents who produced the child.

Had Georgeann been considered a legitimate child on the date that her support petition was filed, she would have been receiving support from both of her parents in accordance with their means and needs as determined by a court using a best interest of the child standard, and she would have been receiving support from February of 1980, unlike in this case where she has never received one penny of support from her father because she’s never had an opportunity to litigate the paternity case.

It’s also submitted that Georgeann’s right to a determination–

Well, when you say that, I thought she had received some support from her father in the early days.

Esther L. Hornik:

–Oh, yes, she did in the early days, but after her complaint was filed she hadn’t.

It’s submitted that Georgeann’s right to a determination of paternity is a fundamental personal right.

This determination is the keystone upon which all of her rights as her father’s child depend.

Warren E. Burger:

Mr. Onek.

Joseph N. Onek:

Mr. Chief Justice, and may it please the Court:

At the outset, we do not oppose remand in this case.

Although in fact we agree with appellant’s view on retroactivity, the cases we both rely on are cases from the intermediate courts in Pennsylvania such as Williams v. Wolfe.

There has been no definitive resolution by the Supreme Court of Pennsylvania on the retroactivity of the 18-year statute and we would not oppose a remand on that issue.

But you think the law of Pennsylvania is as your opponent has stated it?

Joseph N. Onek:

Yes, we do agree to that.

In fact, the Pennsylvania courts, at least as we understand the law, would interpret it the way appellant has.

But there has been no definitive resolution, and indeed the cases we both rely on, Williams versus Wolfe, are Superior Court, not Supreme Court cases.

And if a new action were filed, is the law settled that the Pennsylvania courts would not permit recoveries for that interval prior to the filing of the new paternity–

Joseph N. Onek:

That is my understanding.

Thurgood Marshall:

–Is your Supreme Court still so far behind as it used to be, so that a new action would take forever?

Joseph N. Onek:

Your Honor, I’m a Washington lawyer, not a Philadelphia lawyer.

I do not know how long it would take the Pennsylvania Supreme Court to resolve this issue.

And, I turn to the constitutional issue.

In 1980 petitioner filed… appellant filed a petition for support, at issue in this case.

Joseph N. Onek:

At that time there was a six-year statute of limitations for paternity actions.

We submit that that statute of limitations was constitutional and that therefore appellant’s petition was properly barred.

This Court has established the criteria for determining whether a statute of limitations in a paternity action is constitutional under the Equal Protection clause.

Mr. Onek, incidentally, is there much argument here that this is the father of the child?

Joseph N. Onek:

That has always been denied in this case.

It has always been denied?

Joseph N. Onek:

That is correct.

On the other hand, I take it he has contributed to the support?

Joseph N. Onek:

That was also denied, Your Honor.

I don’t think that appellee has admitted support during the early years of the child.

The first criterion is whether the statute of limitations is substantially related to the state’s interest in preventing stale or fraudulent claims.

The second criterion is whether the statute of limitations provides a reasonable opportunity for the child to obtain child support through litigation.

If I might interrupt, to get back to that question of whether or not he has ever contributed support, was there a finding, a judicial finding, that he had?

Joseph N. Onek:

No, I believe there has been no such finding.

But is it not true that there’s an allegation that he did support–

Joseph N. Onek:

Yes, there was an allegation.

–on the face of the complaint?

Joseph N. Onek:

Yes, we take it on the face of the complaint.

There was an allegation that he contributed support through–

William H. Rehnquist:

For purposes of our decision we assume that’s true, even though it may not be?

Joseph N. Onek:

–That is right.

He did concede, as I understand it, that he is potentially liable to pay the child support today?

Joseph N. Onek:

No, no, that just states that he is potentially liable on a going forward basis if paternity is proved.

Warren E. Burger:

It’s really not much of a concession.

Joseph N. Onek:

I hope not.

I certainly hope not.

Let me turn to the state’s interest in this case.

Every statute of limitations has two purposes, first to assure the accuracy of the fact finding process, and second, to maintain settled expectations, so-called principle of repose.

With respect to the fact finding issue, it is of course true that scientific tasting has reduced the possibility of false accusations of paternity, but the new scientific tests, including the HLA test which is used in Pennsylvania, is not conclusive.

The leading study, the one cited by amici, the Terasaki study of 1,000 people, shows that in ten percent of those cases the HLA test could make no resolution at all, and in the other cases where it did indicate probatively that the defendant was the rather, the degree of probability ranged from 90 percent to higher.

Joseph N. Onek:

There is no court in the United States which treats HLA tests as conclusive.

To the contrary, all of them permit a defendant to submit evidence on such issues as non-access to the mother during the relevant time period.

What kind of evidence must the defendant rely on?

Obviously, he must rely on witnesses who are available, on the memory of those witnesses and his own memory, and in some cases, of course, he must rely on documentary evidence like appointment calendars, credit card records and so forth.

There can be no question that the accuracy and reliability of that evidence diminishes over time.

It is far more difficult for a defendant to reconstruct his activities and the activities of the mother six years or ten years after the event than it would be for him to reconstruct those activities one year, two years, or three years after the event.

May I just be sure I understand your reference to the scientific tests.

Do you acknowledge, that in nine cases out of ten the test is accurate?

Joseph N. Onek:

Your Honor, I think that, regrettably, is too simple a way of putting it.

The statistical basis for these tests is very complex.

In some cases the tests will show up nothing at all.

In the–

Ten percent?

Joseph N. Onek:

–Ten percent, the cases will provide no evidence whatsoever, and of course in advance–

But in the other 90 percent, as I understand, the range is from 90 to something higher?

Joseph N. Onek:

–That is correct.

So that, it’s not one out of ten, it’s… I mean, there’s nine chances out of ten you’ll be in a predictable group?

Joseph N. Onek:

That is correct.

Then if you’re in that group, the chances are ten to one that they can identify–

Joseph N. Onek:

That is correct, and in some cases even higher.

But nevertheless, every court enables defendant to put on evidence, and as I said, that evidence diminishes over time.

It becomes more and more difficult.

Now, there’s no magic to a six-year statute of limitations, but we do think that a state could reasonably conclude that after that period of time the reliability of all the evidence that it does permit the defendant to put in, testimony from the mother and the defendant, testimony of other witnesses and so forth, decreases.

And so, with respect to the fact-finding process, we submit that six years is a reasonable period.

–May I ask again, is it possible… I gather the Pennsylvania statute in effect treated these as two kinds of claims, those in which there had been no support at all, the flat six years, and the second category is one in which there would be a finding there had been support for a period of time.

And they allege that they’re in the second category.

Do you think your argument applies with the same force in that category as–

Joseph N. Onek:

Under Pennsylvania law, if the father has contributed support, that’s an exception to his six-year statute and it gives the mother more time.

In other words, if the father had provided support for seven years, then the mother could come in two years later, even in nine years, and bring it.

But that’s not the case here.

Joseph N. Onek:

That is, even the allegation of support says that it ended in 1975.

William H. Rehnquist:

–I understand, but do you think your argument on the fact finding process applies with the same force to a case in which there had been a period… it had to be proved, of course… of support?

Joseph N. Onek:

Oh, absolutely, Your Honor, because there are many circumstances in which a man may support a child of a friend because he admires and loves the mother, not because he concedes in any way that he is the father of that child.

So, I don’t think the argument is changed.

There was a second purpose of the statute of limitations.

It’s to maintain settled expectations, and I think that’s particularly important in defendant’s… in these types of cases.

After all, the defendant does not necessarily know that he’s the father.

He’s contesting that.

And in some cases he may not even know that the child in question has been born.

Yet, under appellant’s theory, ten years after the fact or 25 years after the fact, he can suddenly be accused of being the father of an illegitimate child.

And what are the consequences of that?

I think there are two sets of… first, there can be enormously significant adverse emotional and social consequences to being accused 15 years after the event of being the father of an illegitimate child.

It can disrupt your relationship with your current family.

It can jeopardize your status in the community, even your employment.

For that reason we think that a state can reasonably say, give the defendant fair notice.

If you think he’s the father, tell him within six years so he can make the necessary adjustments.

I suppose in light of the federal requirements today, there is hardly any state that isn’t going to an 18-year–

Joseph N. Onek:

That is correct, Your Honor.

Warren E. Burger:

–period of limitations?

Joseph N. Onek:

That is correct.

Your argument may fall on deaf ears for the most part because states just aren’t going for the shorter time period?

Joseph N. Onek:

I believe that every state, Your Honor, will move to the 18-year period.

I’m merely saying that when this petition was filled and when Pennsylvania passed this law, was it reasonable for them to say, fair notice should be given to the defendant within six years, and we think it should.

In addition to these emotional and social consequences, of course there are the financial consequences.

A defendant who has not known that he has a child for ten or 15 years, has not saved up money or made the other kind of planning that legitimate fathers often do to take care of their children.

So, in some cases, there can be a sudden and unexpected burden.

Well, that could happen under the ’85 statute, couldn’t it?

Joseph N. Onek:

Oh, under the new statute, that is correct.

I’m merely saying–

Mr. Onek, you draw a distinction between the six-year statute here and the one and two year statutes have been stricken down.

Where is the dividing line, five, four, three?

Joseph N. Onek:

–Your Honor, I don’t think there is a magic dividing line, but I think there are several things that can be said about the six-year statute of limitations.

If you look at statutes of limitations generally, in the State of Pennsylvania or other states, six years is on the high end.

In Pennsylvania, for example, generally torts are two years; contracts are four years.

Six years, if you look at the state’s general policies with regard to settled expectations, with regard to the accuracy of the fact finding process, six is on the high end.

Well, it’s a slippery slope.

We have the same problem with the six-man jury case–

Joseph N. Onek:

I am familiar with that case, Your Honor, and I don’t deny the slippery slope.

I merely say that if you look at statutes of limitations generally, six years is at the high end, and that leads me to this point–

–In the Pickett case, Mr. Onek, the Court looked at the incongruity of a longer statute of limitations in the event of the death of the father, and recovery by the illegitimate child, and that same peculiarity or incongruity exists in Pennsylvania, does it not?

Joseph N. Onek:

–Yes, but I think it’s a very different situation because all the arguments I have just made about fairness to the father don’t apply with the same force when the father is dead.

The emotional and social impact on the father obviously doesn’t exist when the father is already deceased.

So, I think you have different factors.

In addition, in Pennsylvania you do have a much higher standard when the father is dead, clear and convincing as opposed to preponderance of the evidence.

Now, in assessing, and I think this goes to your point, Justice O’Connor, in assessing the validity of Pennsylvania’s interest in the statute of limitations, it’s important to emphasize that prior to 1984 Pennsylvania did not have a provision generally totalling the statute of limitations during impact.

In other words, any child, a legitimate child or illegitimate child who was involved in a slip and fall case had a two year statute of limitations.

I think this demonstrates that Pennsylvania took very seriously its statute of limitations.

It also demonstrates that you cannot say that Pennsylvania was somehow singling out paternity actions and discriminating against paternity actions.

To the contrary, the six-year statute of limitations, in effect, the paternity action in 1980, was substantially longer than the two-year statute of limitations that was in affect for tort cases, for illegitimate or legitimate children.

Now, it is true that in 1984 Pennsylvania changed its position.

It did adopt, like many other states, a general totalling provision.

The question then becomes whether, when Pennsylvania eliminated the statute of limitations for infants, in most general cases, did it also have to eliminate the six-year statute of limitation for paternity actions, and we submit that it did not.

There are very different interests at stake in a paternity action situation.

The general totalling provision applies primarily to tort cases.

It is one thing for a defendant to be accused 15 years after the fact of being a tort feasor.

It is another thing for a defendant to be accused 15 years after the fact of being a father of an illegitimate child.

As I have just noted, the emotional and social consequences of that accusation and that determination are much greater, so that any state–

May I just interrupt.

Maybe your argument is valid, because you are arguing as of the time the statute was passed.

But that risk is available now, and now we’re only talking about past due support obligations?

Joseph N. Onek:

–That is correct.

Pennsylvania has changed its law.

I’m just saying–

Supposing that were the only state interest that supported the statute.

I’m not suggesting it is, and if that state interest is no longer viable because of the change in law, would that be a proper ground on which to uphold an otherwise discriminatory statute?

Joseph N. Onek:

–I’m not certain, now, which statute we’re talking about.

William H. Rehnquist:

Well, I’m talking about the one at issue here.

Supposing… and this is not right, it’s kind of a hypothetical… supposing the only interest the state has to justify the statute, with this concern about the emotional impact on the father who is sued too late, and supposing now that possibility will exist regardless of how we decide this case because you’ve got a new statute, and that therefore there really is no present state interest to justify the statute.

Would it be valid or invalid?

Joseph N. Onek:

I think the statute as it existed prior to the new statute is still valid.

I think that when the state–

Even if there’s no longer any state interest to justify the discrimination?

Joseph N. Onek:

–Yes, because I believe that when a state changes its policy on a going-forward basis, that doesn’t mean that prior to that, the previous statute was unconstitutional.

Also, on the facts of this case, you’d have a very awkward way of making that argument because here it is probably true that Pennsylvania changed its law, not because it revisited the question of its interest but under duress from the federal legislation.

Warren E. Burger:

Well, whatever the reason, the interest is no longer… no longer carries any weight?

Joseph N. Onek:

That is correct, but I don’t believe that when a new statute is enacted, the previous statute suddenly becomes unconstitutional.

As I was saying about the change in 1984, I believe the Legislature in 1984 could legitimately say, we are changing the statute of limitations in tort cases.

Paternity actions are much more sensitive and we’re not sure what we’re going to do about that.

After all, this Court has often said that a state does not have to reform all its laws all at once.

Just last week in the City of Renton case, this Court held that a city did not have to resolve all its problems with so-called adult entertainment at the same time.

To the contrary, the Court said, we can resolve the problems posed by adult theaters, without at the same time dealing with other adult entertainment such as bookstores and night clubs and so forth.

And this case is similar.

Pennsylvania was entitled to say in 1984, we are going to change the law with respect to tort actions but we are not at this point going to deal with the tougher problem of paternity actions.

As it turned out, of course, Pennsylvania did deal with the problem of paternity actions less than a year and a half later, because a year and a half later Pennsylvania did in fact, in effect, eliminate the statute of limitations.

Let me turn now to the other criteria established by this Court for equal protection, and that is, does the statute of limitations provide an ample opportunity for paternity and child support actions to be brought.

Again, we submit that the six-year statute passes muster.

We believe that six years gives an ample opportunity for the mother to overcome the various problems which might inhibit her from bringing a child support action.

First, let’s take a look at the financial problems.

In the state of Pennsylvania, if a mother is on welfare, the Department of Public Welfare will provide legal assistance to bring a paternity and a child support action.

Other poor mothers can use community legal services to bring paternity or child support actions.

Joseph N. Onek:

I don’t think it can be fairly said, in the State of Pennsylvania, that a mother will be financially unable to obtain the legal assistance that she needs to pursue a paternity or a child support action within the requisite six-year period.

Now, this Court has suggested that there are other barriers that a mother may face, personal, psychological barriers that might inhibit her from bringing a suit within six years.

Let me say first that there is little evidence that there is a substantial number of women who will not overcome whatever inhibitions they have within the six-year period.

Furthermore, there is little evidence that–

Well, I think the concern is with the person who is living with the father out of wedlock and doesn’t want to interrupt that ongoing relationship by bringing action against him.

There’s an allegation of that sort of situation in the Carey case.

Joseph N. Onek:

–If the man and woman are living together and the man is contributing any support, any amount of support for the child, the statute isn’t running because the woman would then have two years after the ceasing of support to file it.

So, your hypothetical only exists in a situation where the man and woman are living together and the man is not Providing a jot of support to the child, which is a highly unlikely situation.

The father is paying… or if the defendant is even paying a dollar of rent, he presumably is helping to contribute to the support of the child, and as long as that is true the mother is not bound by the six-year statute of limitations.

She can sue two years after the defendant’s support stops.

So, I think that problem, which was a very real problem in the Mills case, as this Court pointed out, is not a problem under the Pennsylvania statute.

Under the Pennsylvania statute that is not a problem.

So, we don’t think that there are going to be a great many women inhibited from filing within six years.

Furthermore, even if there are such women, there may be some women who will not file at any time.

In other words, what evidence is there that a woman who won’t file in six years will file in the interim between six and 18 years?

We have to recognize the fact that there are some women who for whatever reason will not file the child support action.

That is not a statute of limitations problem.

There’s simply nothing in the statute of limitations–

Then why in the world did Pennsylvania change its law?

Joseph N. Onek:

–Pennsylvania changed the law… the short answer, I think, is that it was required to do so in order to receive AFDC money.

As you know, in 1984 Congress enacted a law which said that unless a state moves to an 18-year statute of limitations, it would be deprived of AFDC money.

Although I don’t know the exact amount of AFDC money that Pennsylvania receives, I assume that it’s in the tens or hundreds of millions of dollars.

Therefore, Pennsylvania and I assume every other state in the union will now move to an 18-year statute of limitations.

That may in fact be a good policy judgment.

All I am arguing here is that the State of Pennsylvania prior to that was not required constitutionally to have an 18-year statute, that it could have a six-year statute, and that such a statute is constitutional.

If you have no further questions, I conclude my argument.

Warren E. Burger:

All right, Ms. Hornik.

Esther L. Hornik:

In my opponent’s argument, first of all it seems to be more like a due process argument in favor of fathers, rather than the issue that’s before this Court, is how legitimate children are treated differently than illegitimate children.

And who is to say that every birth of every child is a planned event?

You can have families where the parents are married and they can have a surprise child, and then they have to plan for the financial future of that child, and so that, this kind of argument that a father… that especially a father who has been engaging in sexual relations outside of the bounds of matrimony gets financial immunity if someone happens to haul him into court after six years, is absurd.

Esther L. Hornik:

Now, this Court has pointed out that in this kind of situation the children’s interest… the child’s interest is paramount.

Not one word here was said about the child.

What about the social embarrassment of the illegitimate child?

What about the child who is given a school assignment to fill out his family tree and she can only fill out one branch, her mother’s side.

She has nothing to put on her father’s side.

And so that, an illegitimate child, because of what the father has done, his irresponsibility, is stuck with the consequences and if you can follow that argument, that the statute of limitations is supposed to work as a statute of repose for the father, it’s plainly unfair and doesn’t balance against the interests of the child.

In closing, I would like to state that this statute of limitations is a violation of the due process… pardon me, of the right to equal protection of an illegitimate child, and I would urge this Court to find the six-year statute of limitations unconstitutional, and reverse the Superior Court of Pennsylvania.

Thank you.

Warren E. Burger:

Thank you, counsel.

The case is submitted.