Reed v. Reed

PETITIONER:Sally Reed
RESPONDENT:Cecil Reed
LOCATION:Former Ada County Courthouse

DOCKET NO.: 70-4
DECIDED BY: Burger Court (1971-1972)
LOWER COURT: Idaho Supreme Court

CITATION: 404 US 71 (1971)
ARGUED: Oct 19, 1971
DECIDED: Nov 22, 1971

ADVOCATES:
Allen R. Derr – Argued the cause for the appellant
Charles S. Stout – Argued the cause for the appellee

Facts of the case

The Idaho Probate Code specified that “males must be preferred to females” in appointing administrators of estates. After the death of their adopted son, both Sally and Cecil Reed sought to be named the administrator of their son’s estate (the Reeds were separated). According to the Probate Code, Cecil was appointed administrator and Sally challenged the law in court.

Question

Did the Idaho Probate Code violate the Equal Protection Clause of the Fourteenth Amendment?

Warren E. Burger:

We will hear arguments next in Number 04, Reed against Reed.

Mr. Derr, oh, excuse me, your friend is not quite here yet.

You may proceed.

Let me put a question to you at the outset.

This is — the statute under which this case comes here has now been superseded, is that correct, by a new statute?

Allen R. Derr:

It has not yet been superseded.

Earlier this year Mr. Chief Justice, the Idaho Supreme Court enacted a uniform probate act.

Now this act does not contain this preference statute that we are talking about in this case.

That act does not come into effect until July of next year.

Warren E. Burger:

But as of July next year, 1972, the new legislation would washout this problem, is that correct?

Allen R. Derr:

It does remove the distinction between (Voice Overlap)

Warren E. Burger:

The plain discrimination.

Allen R. Derr:

Yes.

Warren E. Burger:

The alleged discrimination.

I just want to be sure that I have that clearly in mind.

Allen R. Derr:

Right.

William J. Brennan, Jr.:

You have no contention that technical rules of the state (Inaudible)

Allen R. Derr:

No.

I believe that in respondent’s brief they raise the question, but I take the position that we had a State Supreme Court decision that we are here on that the law is still in effect and will be until July of next year.

William J. Brennan, Jr.:

And this lady (Inaudible) statute in any way.

Allen R. Derr:

No, she is out —

William J. Brennan, Jr.:

(Inaudible)

Allen R. Derr:

That is right, unless she can get relief here.

Harry A. Blackmun:

Mr. Derr I take it that the new act was not prompted by this litigation?

Allen R. Derr:

I do not think it is at all.

Harry A. Blackmun:

Would you give us —

Allen R. Derr:

I just thought —

Harry A. Blackmun:

Would you give us some enlightenment as to the significance of this particular probate?

There is an inference somewhere that it is a less than a thousand dollars inside, is this correct?

Allen R. Derr:

We do not know for sure, Your Honor.

Allen R. Derr:

The exact size of the estate, but I will have to concede that it must be a small estate.

Harry A. Blackmun:

So that this is essentially a test (Inaudible)?

Allen R. Derr:

Basically, except that it is also a matter of principle on behalf of Mrs. Reed.

Harry A. Blackmun:

Well, someone paid for it?

Allen R. Derr:

If they —

Harry A. Blackmun:

Are the Reeds incidentally separated or not?

Allen R. Derr:

The Reeds although, it does not appear in the record Your Honor, the Reeds have been divorced since 1958.

Mr. Chief Justice, Your Honors, may it please the Court.

We are here today to ask you to do something that this Court has never done since the Fourteenth Amendment was adopted in 1868 and that is to declare a state statute that distinguishes between — that classifies between males and females as unconstitutional.

We feel that the case could have us — at least a significant, significant for women, somewhat it can to what ground as Board of Education had for the butter —

William O. Douglas:

We had a case some years back involving in both cases a bartender in Michigan?

Allen R. Derr:

If the Court please, that was the Goesaert case that you are talking about sir.

William O. Douglas:

I forgot the name of it.

Allen R. Derr:

That case was decided, Your Honor on a premise that we feel is no longer tenable.

It allowed the wife or daughter of an owner to tend bar that no other women to tend bar.

It seems that it had been felt by the Court that if the wife, the wife or daughter would be protected by the husband or father and that for other reason there was a rational relationship to a legitimate state purpose.

And as rational relationship test that has followed through our law had given some indication that wherever there has been a classification on the basis of sex, anything goes, it is alright.

And we admit they are different, but we do feel as a result of this rational relationship test is almost as they enter it is separate but equal test that (Inaudible) in holding that — holding that women from being considered person and holding them back from their entitlement under the Fourteenth Amendment of the United States Constitution, the Equal Protection Clause.

Now, a just brief run down on the facts of this case which might be helpful in our analyzing that —

Harry A. Blackmun:

But there a mis-connection could — the Idaho Court have appointed Mr. and Mrs. Reed as joint administrators?

Allen R. Derr:

There is a serious question on my mind because of the mandatory provisions and our Supreme Court in the case we are appealing from is that that provision is mandatory.

Harry A. Blackmun:

Well, what is the practical aspect in the day to day routine of the Idaho Probate Courts, do they do this?

Allen R. Derr:

I have known them personally and in fact this has been so except by ascent and never in this type of equal relationship.

I have had a brother and sister agree with each other.

But it seems to me that any kind, a male contender appears under the statute, the language of the statute is clear.

Males must be preferred to be, there is no discretion.

Harry A. Blackmun:

So that at a Court in your view then may not appoint both even though it is inclined to do so and even though both agree?

Allen R. Derr:

I would think that the interpretation that was given to this case is the interpretation that might be given by other Courts and that no, they would not appoint both.

Byron R. White:

In your view does this statute take up whenever — to a man and woman apply and they are just equally entitled in terms of the class they are in?M

Allen R. Derr:

Yes, Your Honor.

Byron R. White:

Is that where it picks up?

Allen R. Derr:

That is where it picks up.

Byron R. White:

Because it does equally entitle then you might say that before the statute makes the choice there would have to be a hearing as to what the respective qualifications are for these two people and it would only be when they are found to be absolutely equally qualified to act that the statute would make the choice, but I gather that is not the way it was?

Allen R. Derr:

It is not the way I read it.

Equally entitled, there is another section of that code that points out, for instance said, husbands and wives, in this case it is the ex husband, ex wife or if they were brothers or sisters (Voice Overlap)

Byron R. White:

But people like (Voice Overlap)

Allen R. Derr:

Degree of affinity to the receiver.

Byron R. White:

But — excuse me, let us assume now that two people applying there in the same category like as you suggest but then one of them claims that the other one is say, mentally defective.

Allen R. Derr:

There would have to be a hearing on that subject.

Byron R. White:

Well, let us assume there are two people in that category and one of them says I am better qualified than the other.

Allen R. Derr:

That is the determination of Judge as well, except for this mandatory statute.

That is really coming back Justice White to what we talking about, let the Court decide it.

Byron R. White:

Well, I know but what about the mentally defective case then?

Allen R. Derr:

Let the Court decided on the basis of the merits.

Byron R. White:

Exactly.

But — let us assume one person says the other person is deaf and dumb — just or he is paralyzed or something like that and he is unqualified to act as an administrator or an executor.

Allen R. Derr:

I do not think that their assertion would be sufficient, it has to be proved.

Byron R. White:

Well, what if the person happens to be a man?

He claims here that the woman says the man is paralyzed and he says, well, I get the appointment anyway because I am in the same category as you.

Allen R. Derr:

They do have to determine these factors.

Harry A. Blackmun:

Well, then you are conceding that there is a determination of comparative attitude within the scope of the statute.

Allen R. Derr:

No, Your Honor there is not.

Byron R. White:

Except when somebody alleges the other fellow as disqualified?

Allen R. Derr:

If they allege that —

Byron R. White:

Pointing out that there was (Voice Overlap) or something.

Allen R. Derr:

They would probably have to have a hearing and prove.

Harry A. Blackmun:

Are you saying that a drunken husband has the absolute right over a able competent wife.

Allen R. Derr:

Unless the wife is able to come in and convince the Court that he is —

Harry A. Blackmun:

Well, does she got the right to do it?

This is what we are asking?

Allen R. Derr:

We have to read our statutes in —

Harry A. Blackmun:

That was my question?

Allen R. Derr:

— to get her right.

Potter Stewart:

But if there might be other statute that qualify anybody, man or woman, if he is a deaf, dumb and blind or if he is a 7 years old or if he is a multiple amputee or so on, but — this — we are dealing with this statute and we must take it as it is interpreted by the Supreme Court of the State and the State has interpreted the statute very clearly, has it not?

Allen R. Derr:

Yes, Your Honor.

William J. Brennan, Jr.:

But was that not — I gather that there has not been any claim that of this lady or this gentleman, suffers any disability — (Inaudible)

Allen R. Derr:

The record shows no – what?

There was no such claims —

William J. Brennan, Jr.:

No such claims were made?

Allen R. Derr:

No such claims —

William J. Brennan, Jr.:

All that has happened here is that — equally entitled I gather is that they are in the degree of consanguinity whatever it is which had made them equally entitled and the statute then operates to compel the appointment of the male, is that it?

Allen R. Derr:

That is exactly what we are here for.

Now, Sally Reed —

Harry A. Blackmun:

But I wish to get your position entirely clear.

You are saying in effect that I take that a hearing is not in order, that the statute is mandatory?

Allen R. Derr:

The statute is mandatory, but I am not closing the door to someone being able to have a hearing but let me run down the only other disqualification in our statute, non-residence, minors, persons convicted of infamous crime and persons incompetent by reason of drunkenness, and providence or one of understanding her integrity, those are defined.

Byron R. White:

One of understanding.

William J. Brennan, Jr.:

If I think that has to be claimed, it has to be claimed?

Allen R. Derr:

It has to be claimed.

William J. Brennan, Jr.:

And it is not to be in this case?

Allen R. Derr:

True.

Harry A. Blackmun:

But did you make an attempt to claim on behalf of your client?

Allen R. Derr:

No, we did not because we felt that our client was better, my client was better qualified to administer the estate for many reasons.

None of these particular disqualifications came into play.

Harry A. Blackmun:

But you made no attempt to display her qualifications otherwise?

Allen R. Derr:

We had no opportunity to.

We petitioned.

The husband petitioned.

The judge issued his order because of this law in Idaho, the man gets the job.

We did not get that in the record.

Allen R. Derr:

We did not get the chance to show our client was better educated, that she had bookkeeping experience, that she had secretarial experience.

Warren E. Burger:

When you say you did not get —

Harry A. Blackmun:

Did you make an offer of proof?

Allen R. Derr:

No, Your Honor.

Warren E. Burger:

Well could not — I do not think I have got this clear yet, some confusion on the aspect.

What was to prevent you from presenting the issue to the Court as an issue that the wife was better qualified, anything except the statute and its mandatory preference, in your way?

Allen R. Derr:

The statute and its mandatory preference was imposed and as a matter of fact I do not think there would be a hearing at all with this.

Warren E. Burger:

(Inaudible) was a hearing, before the Probate Court?

Allen R. Derr:

That it was perfunctory and decision was based strictly on the statute.

Potter Stewart:

The hearing just established that your client was a woman and that the defendant was man?

Allen R. Derr:

This is correct.

Potter Stewart:

And as the Supreme Court of the State says that you follow the areas where a choice must be made under the legislature by enacting the statute made the determination, that is the way your Supreme Court has construed your statute?

Allen R. Derr:

Yes sir.

Harry A. Blackmun:

So we should take this as though the parties had conceded that both parties are equally qualified?

Even if incompetent otherwise.

Allen R. Derr:

I would like to say, to use the language neither is incompetent otherwise.

Warren E. Burger:

You may continue Mr. Derr.

You have —

Allen R. Derr:

Thank you.

Warren E. Burger:

— twenty minutes remaining.

Allen R. Derr:

I thought a little more about some questions from over here during the noon hour (Inaudible) but when we have an automatic disqualification, we have one Section 15-312 that of course says that in this case the woman is equally entitled, that is what is at issue here, but when you have an automatic disqualification she is no longer equally entitled.

Now, the Court does have permission if two people are actually equally entitled under the Idaho Law to appoint one or more —

Warren E. Burger:

Is that statute perhaps not to be read as meaning in practical terms otherwise equally eligible?

Allen R. Derr:

Otherwise.

Warren E. Burger:

Otherwise equally eligible then the male is preferred over the female?

Allen R. Derr:

That 15-314 with this preference just takes that right out from under on that one.

Also as far as the size of the estate is concerned, it is not in the record but I think the Court should know that Cecil Reed was appointed March, 12, 1968 as the administrator pursuant to the Probate Court order and a bond of $1,000.00 was posted in the case.

Harry A. Blackmun:

Has not an inventory been filed after three years?

Allen R. Derr:

No Your Honor.

This has been a litigation and I might point out that Probate Court order which is the subject of the first appeal and this has been through the appellate process ever since.

Harry A. Blackmun:

Well, the fact an appeal is pending does not prevent or stall it by the fine of an inventory under your practice?

Allen R. Derr:

I would think not, Your Honor but in our unique position we did not feel we had neither the — we had neither the information or the right of going to the Probate Court to do that.

Harry A. Blackmun:

In other words you have not looked at the file, Probate file?

Allen R. Derr:

Yes and there was no —

Harry A. Blackmun:

No inventory?

Allen R. Derr:

No inventory.

As a matter of fact, respondent’s brief admits that fact.

We think, gentleman that what we are dealing with here is strictly a law with sex-based distinctions which disregards individual abilities and capacities and is not rationally related to the factor of sex, and therefore, we feel it involves invidious discrimination and is in violation of the Fourteenth Amendment.

William J. Brennan, Jr.:

Well, that argument has not succeeded in other context in this Court, has it?

Allen R. Derr:

You are absolutely correct, Your Honor.

William J. Brennan, Jr.:

Right to vote, for example?

Allen R. Derr:

The right to vote of course, they were talking about the early cases.

William J. Brennan, Jr.:

Early cases (Inaudible)

Allen R. Derr:

I believe that the circumstances that existed at that time have long since passed.

Potter Stewart:

Also that case would not involve an attack under the equal protection clause of the Fourteenth Amendment?

Allen R. Derr:

That is my understanding of it, Your Honor.

Potter Stewart:

Privilege as an immunity?

Allen R. Derr:

Right, and I think that was, if I am not mistaken through of – was that Brad Robert denied women even right to practice law before the turn of the century.

Since the turn of the century, the cases that have come before this Court have ended up in decisions that I have felt have been either supposedly beneficial or protective as far as the women are concerned.

Obviously I can see nothing beneficial in the Idaho law nor can I see anything protective in the Idaho law.

It is just a law based discrimination against women and once that comes up, the door is locked on the women.

She might as well go home, if that law is allowed to stand.

Now, Idaho tried to justify this law on two points, one; biological and the other practical and I do not think either of those points would bear the strict scrutiny and justify the action that the State has taken here.

William J. Brennan, Jr.:

Well, what was the basis of the biological justification point?

Allen R. Derr:

That men are generally better qualified than women and that is basically what the Idaho Supreme Court said.

Going back to the early cases, going back to Muller or even Goesaert and I think we have cited a great number of statistics to show that women comprised 40% of the labor market now, roughly equivalently educated in the labor market and in spite of all this and because of the sex-based discriminations we say their income is way below the income of a man.

Warren E. Burger:

Well that does not get into this case, does it?

Allen R. Derr:

It really does not, this is not an economic case except this does, Chief Justice bring up another point.

The administrator does get paid and very little less than the attorney of an estate.

Our briefs have extensively exhausted the relationship between sex-based distinctions and race-based distinctions.

Allen R. Derr:

And as you know in alienage, in minority groups with respect to indigency in some cases and at least in Levee in respect to illegitimacy, the strict test has been applied and these classifications have been held not valid and with such a large segment of our population as women are, I certainly do not think it is valid to them.

In other words, what I am saying is I think women are every bit as entitled to protection of the Fourteenth Amendment, they are persons.

The action here is state action as aliens, minority groups, indigency, racial authorities.

William J. Brennan, Jr.:

Would you say that the second justification —

Allen R. Derr:

The second justification is the practical one in which the Court said by doing this we will avoid hearings.

Again I do not think that is efficient to state interest to even the rational relationship, let alone the strict approach that would be taken under a suspect classification and number two, I do not think it is necessarily true.

For instance the hypothetical, you have two or more men, you have two or more women.

They all want to administer the estate.

The men after a hearing cannot qualify because of these other disqualifications, so then the Court would have to turn around and hold another hearing as far as the women contenders are concerned.

So that — altogether I do not think it is number one, I do not think it is true, and number two, I do not think it is sufficient justification to deny Sally Reed the equal protection of the Fourteenth Amendment.

California examined Goesaert very carefully not long ago and in that case they exhausted most of the authorities, it is a very recent case, a 1971 case.

Potter Stewart:

But Goesaert could be explained in terms of the Twenty-first Amendment, could it not?

Allen R. Derr:

I presume that is possible.

Potter Stewart:

The amendment that repealed prohibition and it gave the States, certainly as construed by subsequent decisions of this Court, a great deal of autonomy in the area of dispensing of alcohol?

Allen R. Derr:

And that is why it goes — it probably is not supportive of the respondent’s position in this case.

There has been a great deal of progress too we might point out, I am sure the Court is well aware of the progress in Congress with the Civil Rights Act, the Equal Pay Acts and some other acts that have come up and it is a fang truth and a lot of cases are set forth in all briefs here that Lower Courts are disregarding the so called preachings of Muller, Goesaert and Hoyt and of course there is a great factual movement towards bringing women into our society as a person.

I think the only satisfactory solution now is to treat any classification of women is suspect unless the classification involves physical characteristics you need to that sex.

Anything else can get us off into a lot of other fields.

I think that could solve the situation, could give guidelines to other — to legislatures or the Courts in order to allow a woman to take her full place in our society, take advantage of the opportunities that are available and also take the responsibilities that always go with opportunity.

And I do not think a suspect classification is a bad classification in a sense and it could be applied in this case, I am sure, that if the State wishes to disadvantage anyone, should not the State then — should not the burden be on the oppressor instead of the oppressed?

Is this not a fundamental principle of fairness?

Warren E. Burger:

What if a State had a statute that provided that several persons claiming and otherwise equally eligible to administer, natural born children shall be preferred over adopted children?

Allen R. Derr:

I do not see really anymore significant or rational basis for that and —

Warren E. Burger:

Do you not think that would be bad if I try and follow you?

Allen R. Derr:

Well, in the ways —

Warren E. Burger:

Fourteenth Amendment forbid that?

Allen R. Derr:

I think the way our State treats adopted children, the Fourteenth Amendment would forbid it because adopted children are given all the rights and privileges of naturally born children.

Warren E. Burger:

Well, you mean the Fourteenth Amendment as aided by the statutes of Idaho would make it constitutional, is that your answer?

Allen R. Derr:

To distinguish, I do not think so.

Harry A. Blackmun:

Or going specifically to your statute in the equal in – well, I will read it, “of several persons claiming an equally entitled to administer, males must be preferred to females and relatives of the whole to those of the half-blood.”

Harry A. Blackmun:

Would you make the same argument on behalf of the half-bloods as against those who are related to the whole blood?

Allen R. Derr:

There may be some basis upon which a State could sustain the half-blood as to the whole blood relationship.

Harry A. Blackmun:

What would that basis be?

Potter Stewart:

As more closely related to the other, is that correct?

Allen R. Derr:

Yes.

Warren E. Burger:

Would that not be equally true with adopted children, (Inaudible) back into it then?

Allen R. Derr:

Well, yes, adopted children are the same as —

Potter Stewart:

But is not true as between a mother and a father?

Allen R. Derr:

True.

Potter Stewart:

Which is what this case is about?

Allen R. Derr:

Our statute also prefers in the line of the fact to administer estates brothers or sisters.

We think this is just bad as — it is a male over female classification.

I want to summarize I think coming into the eighth decade of the 20th Century that we do have to reexamine the situation as far as sexual classifications are concerned.

We have to discard those canards or canards, how we pronounce it, that are not based upon fact.

In Digg, for instance they were trying to rely on — way back in the early 1800’s, the ideas that Holmes set back at ease and I think what he said is pretty interesting.

It is revolting to have no better reason for a rule of law than it was —

(Inaudible)

Allen R. Derr:

Then that — it was laid down at the time of Henry Ford, but it is still more revolting if the grounds upon which it was laid down, a vanished long sense and the rule simply persists from blind imitation of the facts.

We think if the Idaho rule in this case is about to persist that it will be from blind imitations of past and not based upon our current understanding of the Fourteenth Amendment or the facts of today’s society.

Harry A. Blackmun:

Mr. Derr, last term we had a case here involving a Maine criminal statute.

It described the crime of escape and the penalties imposed were that if it were a woman, eleven months, if it were a man, three years.

Do you think this is equally susceptible to your equal protection argument?

Allen R. Derr:

Based on the — I think it is, Your Honor based on those —

Harry A. Blackmun:

In reverse.

Allen R. Derr:

I agree that the laws have to be applied equally both ways.

Potter Stewart:

Those would cut the cross, presumably all sorts of imaginable things, alimony, criminal laws about rape and prostitution perhaps?

Allen R. Derr:

Yes.

It might be (Voice Overlap)

Potter Stewart:

And all sorts of —

Allen R. Derr:

It depends on how you define rape.

Potter Stewart:

And all sorts of purported social welfare laws limiting the working conditions of women in contrary to man, such as in Muller against Oregon?

Allen R. Derr:

Yes.

We have a law in Idaho in the mining country that requires furnish women with chairs, but not men.

I think it is should be both or neither.

William J. Brennan, Jr.:

What would you say about selective service?

Allen R. Derr:

I think that women should be in selected service.

As a matter of fact in 1957 —

William J. Brennan, Jr.:

Would a male under your view today have a equal protection claim?

Allen R. Derr:

An equal protection claim because —

William J. Brennan, Jr.:

Not to be inducted because women are not?

Allen R. Derr:

I do not know that he could avoid the service himself on that basis, but he might be effective in getting it extended to cover women as well as —

Byron R. White:

But what remedy would he have though?

Allen R. Derr:

Sir?

Byron R. White:

If he is being discriminated against, what other remedy would he have?

Allen R. Derr:

He would not have much —

Byron R. White:

No, it is not —

Warren E. Burger:

They neither have to be given the same treatments or else your argument just tolled?

Potter Stewart:

But it would not be the equal protection clause as such because that clause is not applicable to the Federal Government?

Allen R. Derr:

Some other —

Potter Stewart:

Fourteenth Amendment?

Warren E. Burger:

Very well, Mr. Derr.

Mr. Stout.

Charles S. Stout:

Mr. Chief Justice and may it please the Court.

The respondent in this case is an employee of the State Highway Department is a man of moderate — the man is a mechanic and he is about ready to retire.

Some aspersions have been cast on this character in the argument that sounded like to me and also in the brief.

He is a man of good character.

This matter was determined in the Probate Court of Idaho on adversary petitions.

A hearing was had before the Probate Judge and the matter was open for all the testimony as to the qualifications of each of the applicants.

Now, the Probate Judge determined that the scales of justice were even on the mater as far as his qualifications were concerned then under the statute and in view of the interpretation to the law as interpreted by our Supreme Court on this preference statutes, the interpretation that has been made for a period of a hundred and twenty five years over that time, he awarded the administration to the male applicant.

He observed in his opinion that the woman was protected by the order and that it qualified by giving a (Inaudible) then she is protected then as in all Probate proceedings, all of the (Inaudible) are protected.

Charles S. Stout:

In this case —

Potter Stewart:

The decedent was an adopted child?

Charles S. Stout:

what was that?

Potter Stewart:

Was the decedent an adopted child (Voice Overlap) —

Charles S. Stout:

That was an adopted child.

Yes, Your Honor.

Potter Stewart:

— Mr. Stout and the litigants in this case are divorced, are they?

Charles S. Stout:

They are what?

Potter Stewart:

They are divorced, are they?

Charles S. Stout:

They were divorced in 1958.

Potter Stewart:

How old was the decedent at the time of his death?

Charles S. Stout:

How old was the child?

Potter Stewart:

Yes.

The — was the decedent —

Charles S. Stout:

Sixteen years old.

Potter Stewart:

Sixteen years old.

Charles S. Stout:

Yes.

Potter Stewart:

And in whose custody was the — so the child was a minor and in whose custody —

Charles S. Stout:

The woman filed a divorce suit against her husband.

The District Court awarded the divorce to the husband.

The Court awarded the child which is at tendered years to the woman.

The Probate Court obeyed culminated, took it from her custody and put it in a children’s home for a time and then gave it to the father and the child was in custody of the father at the time of his death.

Those were the facts.

I might say here that the Probate Court in Idaho at the time this was decided was a Constitutional Court.

It has held in the Court of Record by the Supreme Court.

However, no report or transcript is ordinarily made unless the attorneys get a reporter up there and make it at their own expense, the practice is not to make one.

At the beginning of this year as the jurisdiction was transferred to the District Court under a new judicial code we have there of which is the Court of General Jurisdiction which is merely background and had really nothing to do with the case except that is the history of the matter.

In our brief we have raised two questions, one of which is to whether or not there is a substantial federal question involved in this case.

The second one assuming that the Court hold that there is, it is our position that this particular statute is not unconstitutional as violating the equal protection clause of the Fourteenth Amendment of the constitution.

Thurgood Marshall:

(Inaudible)

Charles S. Stout:

What was that sir?

Thurgood Marshall:

The Idaho statute does not say that only the male, a man (Inaudible)?

Charles S. Stout:

I do not believe it would Your Honor because we are talking about a matter of procedure that is always — that is only incidental to the distribution of property.

It has always been a matter that has been legislated on by the States, The Federal legislation sure has never legislated in this field and I do not believe it would of course —

Thurgood Marshall:

But I believe that the (Inaudible)

Charles S. Stout:

What was that?

Thurgood Marshall:

The Equal protection Clause of the Fourteenth Amendment is in the Constitution and it binds Idaho, is that right?

Charles S. Stout:

That is true, Your Honor.

Thurgood Marshall:

Does not that provision in the State of Idaho (Inaudible)

Warren E. Burger:

While you are thinking on that, then let us take the more interesting question.

What if the Idaho legislature provided that only females could be administrators or representatives in the estate of decedents or that they would be preferred?

Charles S. Stout:

I think that is the same law — I think the same rule would be applicable.

To that I —

Warren E. Burger:

You simply say that is not an equal protection problem?

Charles S. Stout:

No, I do not.

Warren E. Burger:

It is a State question?

Charles S. Stout:

I do not feel that would make a protection problem.

In our brief, however, we considered that first question first and we say if this new Idaho statute which was adopted in 1971, in the last session of the legislature, it is at Chapter 111 of the Idaho Section Laws of 1971, it has got a lengthy title.

It is lengthy law.

I have studied it thoroughly in respect to the issues in this case.

It is an act relating to the appearance of decedents including non-probate transfers at death of missing persons, protected persons, minors, incapacitated persons in constituting the Uniformed Probate Code.

Now, that statute enacts an entirely new probate law for Idaho.

The controversy was not over the statutes that we are arguing about here.

It was over the time and expense involved at probate proceedings and the design of the statute is to avoid the proceedings as much as possible.

The statute does enact a new probate law and thus repeal effective next at July 1.

The statutes in controversy here.

Now, we do not claim that that makes this case quickly moot, but it just show the apparent present intent and add it to the Idaho legislature.

Harry A. Blackmun:

Mr. Stout I asked Mr. Derr whether this new statute was the result of this litigation.

He did not know, do you know whether it is?

Charles S. Stout:

What?

Harry A. Blackmun:

Whether this litigation had prompted the adoption of a new code in Idaho?

Charles S. Stout:

No.

I think it had nothing to do with it.

I —

Harry A. Blackmun:

It is a uniform code?

Charles S. Stout:

Yes.

I think it had nothing to do with it.

It has been under consideration for several years there and I did not know it was until I got investigating it in this matter here and found that it has.

Harry A. Blackmun:

While I have you interrupted are you counsel for Mr. Reed as administrator?

Charles S. Stout:

I am counsel for him, yes, and I represented him in Probate Court and at the time of the hearing, original hearing in this case.

Harry A. Blackmun:

Do you have a requirement in your present code that an inventory be filed by a certain date?

Charles S. Stout:

Yes.

Harry A. Blackmun:

And has it been filed?

Charles S. Stout:

It has not because I thought that the appeals suspended the procedure in appropriate court and I was not authorized to file one.

Harry A. Blackmun:

Is that true in your practice?

Charles S. Stout:

That is what I understand it to be.

Harry A. Blackmun:

So an appeal just dumps everything?

Charles S. Stout:

Yes.

I figure that stops us right there when the appeal was taken.

Byron R. White:

So the creditors get to file claims or anything?

Charles S. Stout:

I am not sure about that.

The notice to creditors was published and I did not consider that.

No claims were filed.

However, I did not figure that we were justified in proceeding in the matter in view of the appeal status of the case.

Warren E. Burger:

If this had been a large estate, substantial investments, could you have had a special representative appointed in the interim to deal with problems pending the resolution of the appeal?

Charles S. Stout:

Those under the Idaho statutes are only appointed where the — where there is some reason for it like property that is liable to depreciate, or some purpose.

No, I do not think there would have been.

There was really no reason for up here.

There was nothing that would depreciate this alleged bank account that is referred to in Sally Reed’s petition and also personal clothings and small amount of personal properties that a minor boy of that age would have.

The second point that we raised under that is the — is the holdings of this Court — holding of the matter of probate procedure.

Charles S. Stout:

It is a matter for the States to determine and the Federal Courts have never as such probated the States and do not probate States.

We have also pointed out in our brief that this particular statute was enacted in 1864, by the first territorial legislature in Idaho that has been in effect ever since that time.

During that time the women for the past 75 years has had the right to vote and could have changed it.

It would have been changed no doubt if there has been enough interest in it.

We had a similar statute in Idaho that disqualified married women.

It was enacted in the same law — statute as this, 1964.

It was deleted 50 years ago.

In our briefs we have cited cases upholding the statute.

These preference statutes have been upheld by the Courts every time they have come before the Courts back as far as 1845 in New York.

There is a number New York cases.

There is a California case.

There is two Montana cases.

The recent Idaho case and the constitutionality has never been questioned before this particular matter here.

So far as women of being qualified to act as administrator in Idaho, they are qualified.

There is no disqualification there except this one statute that and the one before that makes these classifications and that were — when other things are equal whether there is this preference.

Thurgood Marshall:

And your position is that men are just more equal, right?

Charles S. Stout:

What?

Thurgood Marshall:

Your position is that men just happened to be more equal?

Charles S. Stout:

Excuse me —

Thurgood Marshall:

Well, you said that if they are equally qualified, the men get the job as administrator?

Charles S. Stout:

Yes.

That would be right.

Thurgood Marshall:

Does that not make the men more equal?

Charles S. Stout:

As the Court — the Court inquired about the basis on which the Supreme Court decision was made and I will quote from some of the provisions there.

This Court had before said that the priorities established by the Code 15-312 are mandatory, leaving no room for discretion by the Court in the appointment of administrators, citing an Idaho case.

Similarly the preference given to male by the Code 15-314 is also mandatory.

The statute itself says that males must be preferred to females.

Other Courts construing similar provisions have also held that the preference is mandatory.

The respondent however contends that Idaho Code 15-314 violates the Fourteenth Amendment, the equal protection clause.

It is well settled that the Equal Protection Clause of the Fourteenth Amendment does not preclude the legislature from making classification and drawing distinction between classes.

Charles S. Stout:

It merely prohibits classifications which are arbitrary and capricious.

It is for the Court to determine in each instance whether a particular classification rests upon rational ground for as in effect without justification and arbitrary.

It is equally well settled that legislative enactments are entitled to a presumption of validity and that a classification will not be held unconstitutional absent a clear showing that is arbitrary and without justification.

By Idaho Code 15-314 the legislature eliminated two areas or controversy.

If both a man and woman of the same class seek administration, the male would be entitled over the female.

The same as relative of the whole blood is entitled over relative of the same class but of only the half blood.

The provision of the statute is neither illogical nor arbitrary method devised by the legislature to resolve an issue that would otherwise require a hearing as to the realty of merits as to which of the two or more petitioning relatives should be appointed.

Philosophically, it can be argued with some degree of logic that the provisions of Idaho Code 15-314 discriminates against women on the basis of sex.

However, nature itself has established distinction and this statute is not designed to discriminate, but it is only designed to alleviate the problem of holding hearings by the Courts to determine eligibility to administer.

This is one of those areas where a trust must be made in a legislature about enacting Idaho Code 15-314, make a determination.

Legislature when enacted this statute evidently concluded that in general men are better qualified to act as an administrator than are women.

A classification having some reasonable basis does not offend against that clause of equal protection, merely because it is not made with mathematical necessity or because in practice it results in some inequality.

On even scale of the classification, such a law must carry the burden of showing that it does not rest upon an unreasonable basis but it is essentially arbitrary.

And they go on to say that while a classification may not be entirely accurate and there are doubtless instances in which it is incorrect.

They are not prepared to say it is so completely out of basis of fact as to be irrational or arbitrary.

Then they go on to show what other classifications on the basis of sex have been made.

It is our opinion, the State has a legitimate interest in promoting the prompt administration of the estates and that the statute in question promotes this interest by curtailing litigation over the appointment of administrators in addition to the support by the presumption of constitutionality.

Appellant in its brief has criticized the decision of the Supreme Court and in his words, misquotes to say declaring that nature itself has established the distinction, the Idaho Supreme Court seemly justified the discrimination challenged here by finding it rationally — rational to assume the mental inferiority of women to men.

Well, they rolled in the mental.

There is no statement in the Supreme Court decision like that and a Court does not think that.

Byron R. White:

Well, Mr. Stout, I take it from the passages you read in your Court opinion —

Charles S. Stout:

Yes.

Byron R. White:

— that you would agree that under the Idaho law since the purpose of the statute is to avoid hearings about relative qualification.

Charles S. Stout:

In some absences, yes.

It does not —

Byron R. White:

That it would not do a woman any good to petition for a hearing on the grounds that, I have just had a lot of experience in business and I am just better qualified than the man who has had no experience in business.

It would not do her any good to try to get hearing on it?

Charles S. Stout:

I think that is correct, in the absence of some disqualification on the part of the man.

Byron R. White:

Statutory disposal?

Charles S. Stout:

We urge that this statute has been in effect for over 125 years.

Charles S. Stout:

It has been in effect over a hundred years in Idaho.

It has been applied by the Courts.

The attorneys have followed it and applied it.

I am a general practitioner.

My business is to advice clients as to what the law is, what to expect.

And by reason of the decisions heretofore made on this law, it was reasonable to me to assume that I was justified in going ahead on the basis I did.

Now, the legislature show that same intention to comply and to enact a statute here that more adequately, possibly reflects modern thought.

Now, that will give the attorney some basis to go ahead on and the people some basis to proceed on.

Byron R. White:

But under the old statute which is now been superseded, the man would receive the appointment even if the woman were better qualified to have it?

Charles S. Stout:

I think there is a presumption there that —

Byron R. White:

Because she would not ever have the chance to show she was better qualified?

Charles S. Stout:

No, I think that is correct, yes.

I think there is presumption there based on the general experience which existed more at the time the statute was enacted in 1964 than it does now, that men as a rule are better qualified than women and on that basis the Court did not held a hearing on that particular phase of it.

As I say the length of the time the statutes had been in effect and had been followed, it seems to me, it should take a very strong case under this uncertain and elusive provision of the Fourteenth Amendment to declare it unconstitutional.

It has been acted on.

The attorneys have acted on it.

It has been useful.

I do not say that it is any better classification than there is in this new law, maybe it is not as good if attorneys will follow the new law.

In this case, I just want to point out one more thing and that is that the respondent had been quite disadvantaged in this case by lack of funds and not anything involved in the estate and he will receive — received the bill for pending the appendix, almost three hundred dollars which was up three times of what it cost Cecil.

And extensive briefs have been filed in our position to respondent.

We do not urge that as a matter of law here, but we do point out and as a matter of law we do think that the Court should dismiss this case or affirm the decision of the Idaho Supreme Court.

Warren E. Burger:

Thank Mr. Stout.

You have two minutes left Mr. Derr.

Allen R. Derr:

Thank you, Your Honor.

Just a few things in response to Mr. Stout’s argument.

Probate court order that was entered in here and we find the grounds recited in 2 (a) of the jurisdictional statement, recited only that the statute violated 15-314 of the preference statute in support, in over the facts in support of it.

Another thing that should be pointing out to the Court that under Idaho law each of the parents in this case, the child died without a will, are entitled to 1/2 of the estate.

So Sally Reed is interested here in the protection of her own property whatever that be to.

Warren E. Burger:

And of course by now the estate is long since been consumed by the cost of litigation, although I suppose that is not relevant?

Allen R. Derr:

We — my client has not seen any of it, Your Honor.

Allen R. Derr:

I think — that quietly argument of the long acquiescence was certainly put to bed with Brown, it is more recently pronounced in Brown versus Williams.

I do not think that it has any merit.

We do not deny that probate is a state matter that when it — when portions of it or law in connection therewith contravenes the constitution of the United States, it then becomes a substantial federal question that must be resolved.

The statute in this case is simple.

The actual wording of the Fourteenth Amendment is very simple, but the case itself presents a large and I think significant problem.

Potter Stewart:

Mr. Derr, I seem to remember a case of this Court involving the constitutional claim of women, young women to attend a State, Military Academy or ROTC or something, it rings a faint bell and I cannot find that case in the brief anywhere.

Are you familiar with any such case?

Allen R. Derr:

I am not familiar with the case that the women wanting to attend a Military School, but I am familiar with the case, a recent case that allowed a State to maintain one women’s school.

Well, that is the University of Virginia, that is in the District Court.

How about the other one?

But I am thinking about an older case in this Court and I simply cannot find it in the brief or anywhere else.

Allen R. Derr:

I did not (Inaudible).

Thank you.

Warren E. Burger:

Thank you Mr. Derr.

Thank your Mr. Stout.

The case is submitted.