Willis v. Prudential Ins. Co. of America

PETITIONER:Willis
RESPONDENT:Prudential Ins. Co. of America
LOCATION:U.S. Court of Appeals for the Second Circuit

DOCKET NO.: 70-5344
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Supreme Court of Georgia

CITATION: 405 US 318 (1972)
ARGUED: Feb 28, 1972
DECIDED: Mar 20, 1972

ADVOCATES:
A. Felton Jenkins, Jr. – for respondent
E. Freeman Leverett – for petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – February 28, 1972 in Willis v. Prudential Ins. Co. of America

Warren E. Burger:

— hear arguments next in 70-5344, Willis against Prudential.

Mr. Leverett.

E. Freeman Leverett:

Mr. Chief Justice and may it please the Court.

The Court granted certiorari in this case to review a decision of the Supreme Court of Georgia holding that the Beneficiary Clause of the Servicemen’s Life Insurance Act of 1965 should be construed according to Georgia law.

And on that basis, the words “child or children” is used in the federal Act, were held to include legitimate children only and to exclude the illegitimate children of a deceased serviceman.

This case commenced with the filing of a suit in the Superior Court of Elbert County, Georgia in July, 1969 against the Prudential Insurance Company of America, the respondent, seeking recovery of the $10,000 proceeds of a policy written under the Act.

At the time of filing suit, the petitioner, Lorenzo Willis, was a two-year-old, illegitimate, Negro son of a 15-year-old mother, Janice Willis and a 20-year-old serviceman, Johnny Cleveland Simpson who was killed in Vietnam on September 1968.

The deceased was not married but prior to his death, had orally acknowledged the child as his own.

He had also signed a statement agreeing to pay the lying-in expenses and he had, prior to his death, contributed to the care and support of the child.

In addition, the paternity of the child had been recognized by the Social Security and Veterans Administrations for the purpose of paying social security and for pension benefits.

At the time of entering the service, the serviceman, the deceased, did not designate a beneficiary by name but simply checked a block on the form which specified that payment is to be made “in the order of precedence set forth in the law.”

The Act in this instance provides that the proceeds shall be paid in this order of precedence, first, to the designated beneficiary, secondly, to the widow or widower, third, the child or children, fourth, parents, fifth, the executor-administrator, sixth, next of kin under the laws of the serviceman’s — of domicile.

Following the death of the deceased in action, his father, offered to assist in securing the benefits for the petitioner.

And papers were turned over to him for this purpose but instead of securing the benefits for his grandson, the grandfather obtained them for himself, although his application noted that there was an illegitimate son.

This action was then filed on the part and on behalf of the minor.

Following depositions, requests for admissions, motions for summary judgment were made.

The Superior Court of Elbert County granted summary judgment on behalf of the petitioner and denied it to the respondent.

That Court relied upon lower federal court decisions interpreting the Federal Employees’ Group Life Insurance Act which it held that illegitimate children could take.

At that time the four or five cases interpreting the Servicemen’s Life Insurance Act had not been decided or had not been reported.

The Court of Appeals of Georgia, the intermediate appellate court, affirmed using the same approach to statutory construction.

But on certiorari, the Supreme Court of Georgia relying upon three prior decisions, two involving the FEGLI and one, decided four months earlier, involving the SGLI, held that the words “child or children” should be construed according to Georgia law as found with respect to wills, contracts, inheritance and deeds.

And under these decisions, child or children would include legitimate children only.

Two Justices dissented.

I’d like to address some remarks preliminarily to the motion to dismiss in this case on the ground that the writ was improvidently granted.

This Court granted certiorari on November the 9th, of last year.

In early December, Congress passed and on December 15th, the President signed an amendment to the Servicemen’s Group Life Insurance Act, H.R. 907 Public Law 92185 which undertakes to define the terms in question here among others.

With respect to the instant problem, child is defined to include an illegitimate child as to the father only if about six situations are met, first, that the father must have acknowledged to the child in a writing signed by him.

Secondly, the father must have been judicially ordered to contribute to the child’s support or the father must have been prior to death, judicially declared to be the father.

Fourth, proof of paternity be established by a certified copy of a public record of birth or baptism showing that the father was the informant and that he listed himself as father.

Lastly, proof — proof of paternity can be established from the service department of a public record showing that the father with his own knowledge was named as father of the child.

Potter Stewart:

Could your — could your client come under any of these?

E. Freeman Leverett:

No, sir.

I do not think so.

He did — the father did not acknowledge him as such in writing.

In the record, there is an — a statement that he signed at the doctor’s office stating that he would be responsible for the lying-in expenses, but he did not acknowledge the child as his, only by and only inferentially as it may arise from that statement.

Potter Stewart:

The problem I have is this.

Now, your — your brother on the other side says — he tells us that because of the enactment of this — the legislation of this case is nowhere — no longer worthy of consideration by this Court on certiorari because congressional statute has now cleared the matter up.

But putting that point to one side, you tell us that federal law be applicable and hasn’t Congress, and by that statute declared what the federal law is.

E. Freeman Leverett:

They have declared it.

This does not, of course, affect this case because the language of the statute expressly so declares the amendment.

Secondly, this does not eliminate the constitutional question that’s involved in this case as to equal protection, if that would still be applicable because you still have imposed a burden upon an illegitimate child that is not imposed upon a legitimate child and none of the rationale of Oyama versus California conceding that the parents can be penalized for illegitimate — or illicit relationships.

Can Congress itself impose the burden, the onerous procedural burden upon the child where he is not responsible for this situation?

William H. Rehnquist:

Well, are you contending then that conceivably, the application of the new act of Congress could be unconstitutional in some circumstances?

E. Freeman Leverett:

My contention is, Mr. Justice Rehnquist that the new statute does not cover the facts of this case except it would exclude the child in this instance.

But we also expect to show, I think it is apparent, that the act of Congress really would not cover the great majority of situations arising and likely to arise under the Servicemen’s Group Life Insurance Act because of the fact that it’s so seldom that there is a formal acknowledgement or that there has been a judicial determination.

Now, admittedly, the statute purports to say unless it has, illegitimates are excluded.

It — it applies to it in that sense but we say that still does not avoid the constitutional question.

That resolves the statutory interpretation question but it does not resolve the constitutional question.

Potter Stewart:

Well, it does follow as Mr. — my brother Rehnquist — the question suggest then that your ultimate claim is that that statute is unconstitutional or if the — if the statute had been in existence at the time that your claim arose, you would still be making your constitutional claim and the — and it would be —

E. Freeman Leverett:

There is a direct —

Potter Stewart:

— an absolute claim if the statute wasn’t constitutionally inadequate.

E. Freeman Leverett:

That is correct.

Potter Stewart:

Wouldn’t that be true?

Byron R. White:

Don’t you — don’t you — I thought that (Inaudible) statute required was some definitive proof of parenthood?

E. Freeman Leverett:

It — it requires definitive proof of —

Byron R. White:

(Voice Overlap) making in the — in this very litigation.

E. Freeman Leverett:

No, sir.

We could not need it here.

Byron R. White:

Why?

E. Freeman Leverett:

Because of the fact that this necessitated something on the — some action on the part of the father which the father in case had not done.

E. Freeman Leverett:

He didn’t — had not taken any action that would have brought him under —

Byron R. White:

I mean under —

E. Freeman Leverett:

— anyone.

Byron R. White:

— the new federal statute, it is not enough just to have — have proof of parenthood?

E. Freeman Leverett:

No, sir.

It is not like the Veterans Benefit Act in 38 U.S.C. 101 which simply says, “Or other proofs satisfactory.”

It is of a particular and specific type of proceeding that the father must have done prior to his death.

He must have formally acknowledged him in writing.

That was not done here.

He must have — there must have been a judicial determination or he must have quite filled out a —

Byron R. White:

Well, what about the mother?

E. Freeman Leverett:

The mother’s — the federal statute does not reach the situation of the mother.

It deals only with the acts necessary —

Byron R. White:

Well, for the —

E. Freeman Leverett:

— to be done by the father.

Byron R. White:

What about the testimony of the mother?

I mean the — the —

E. Freeman Leverett:

That would not suffice at all under the new federal statute, the 1971 Act.

It will necessitate some specific action by the father in order to be brought within the coverage of the 1971 amendment.

William H. Rehnquist:

So that once the father is dead, all chances of coverage —

E. Freeman Leverett:

That’s correct.

William H. Rehnquist:

— under that amendment disappear.

E. Freeman Leverett:

That is correct.

So unless he has done something before his death, to bring him within one of the six — the five or six categories of the federal statute which had not been done in this case.

In other words, if this federal statute had been in effect at the time of the death of the deceased, we could not come within it because the deceased had not done any of the things to bring him under.

Byron R. White:

So you could in effect then — Congress has said that it’s not a denial of due process of law to — for the federal government or for the federal law to distinguish between unacknowledged and acknowledged illegitimates.

E. Freeman Leverett:

Well, they have not said so expressly but —

Byron R. White:

Well, it’s not her fault.

E. Freeman Leverett:

— the necessary effect — the necessary effect.

Byron R. White:

In fact, this language didn’t make that contention.

E. Freeman Leverett:

That’s right.

That’s right, sir.

In that respect they have.

William H. Rehnquist:

And it is true, Mr. Leverett, isn’t it, that once the father had died without having gone through some acknowledgement procedure that your problems of proof do become exacerbated?

E. Freeman Leverett:

That is certainly true, but by the same token where there has been an acknowledgement in orally or where there has been as in this case, a written statement agreeing to be responsible for lying-in expenses.

We submit that that satisfies all the reasonable requirements of proof and to require these other burdensome and onerous requirement that the statute, the federal statute sets forth, is — is to impose upon an illegitimate an onerous burden that is not imposed with respect to a legitimate and that comes within the rationale of the Oyama case.

Byron R. White:

But if you say that the federal law controls this case, where — and as my brother Stewart says that, where do you find the federal law?

E. Freeman Leverett:

No, sir.

The federal law does not control this case because — or rather the federal — the 1971 statute does not control.

Byron R. White:

It might be so, I — I just put the federal law does.

E. Freeman Leverett:

Alright, sir.

Our position then is that it becomes a question as to —

Byron R. White:

How do you construe the word “children” in this insurance policy?

E. Freeman Leverett:

You construe in the light of the context in which the statutory term appears.

The word gathers meaning from the context in which it is used and since we expect to show that the —

Byron R. White:

(Voice Overlap)

E. Freeman Leverett:

— purpose of Congress here.

Byron R. White:

But the statute says the word “children” would not include and acknowledge illegitimates.

E. Freeman Leverett:

No.

I’m not sure that, Mr. Justice White, whether you’re referring to the 1971 amendment or the original 1965 Act.

Now, under the 1971 amendment, if this identically same factual situation that we have here was to arise today, the 1971 amendment would cover it and would preclude the child from recovering unless the 1971 amendment is declared to be unconstitutional.

William H. Rehnquist:

Well really, it — it’s your position then that the 1971 amendment far from broadening the construction that you contend governed before actually narrowed it.

E. Freeman Leverett:

Well, the 1971 amendment is relevant to my case only to the extent that the contention is made that certiorari should be dismissed as improvidently granted because of the fact that since Congress has now solved the problem as to the future, the problem has become one of an isolated character, not meeting the requirements of the Court for certiorari adjudication.

That is the only in which the 1971 amendment is relevant here.

William H. Rehnquist:

But on — on the merits of your argument you’re arguing that the federal law prior to the 1971 amendment supports recovery by your client.

E. Freeman Leverett:

Correct.

William H. Rehnquist:

And then we look at the 1971 amendment and we see that under it, your client could not recover.

So we must assume if you’re right as to what the federal law meant before that the 1971 amendment narrowed the definition of children, rather than extend it.

E. Freeman Leverett:

Correct.

Correct, sir.

E. Freeman Leverett:

We submit that the case relied upon for dismissal, the Rice versus the Sioux City Cemetery is not applicable.

In that case, after argument and affirmance by an equally divided court, the — our legislature passed a statute which prohibited the very act of discrimination complained of.

The Court reasoned that this statute had rendered the pending case on such isolated significance that the question was not likely rise again — to arise again and then hence, it would not warrant adjudication.

We submit instead that this Court’s more recent decisions in Jones versus Alfred H. 4Mayer Company, 392 U.S.

In Sullivan versus Little Hunting Park, in 396 U.S. support the retention of jurisdiction here, in both of these cases.

Harry A. Blackmun:

Would you say that —

E. Freeman Leverett:

Several act —

Harry A. Blackmun:

— would you say that Reed against Reed of last term would also support your position?

E. Freeman Leverett:

That one, I have not read, sir.

Harry A. Blackmun:

I suggest you look at it.

E. Freeman Leverett:

Alright, sir.

In both of these cases, civil actions had been instituted under Section 1982 complaining of racial discrimination in the leasing and in the sale of real estate.

These suits were based upon transactions that accord prior to the passage of the 1968 Fair Housing Act.

In the Mayer case, certiorari was granted prior to the passage of the Act in the case it was decided after passage.

But in the Sullivan case, certiorari was granted and the decision was rendered after the passage.

In both cases, this Court rejected the contention that certiorari should be dismissed as improvidently granted.

In the Sullivan case, this was set.

But petitioners’ suits were commenced on March 16th, 1966, two years before that Act was passed.

It would be irresponsible judicial administration to dismiss a suit because of an intervening Act which has no possible application to events long preceding its enactment.

Another case is U.S. versus Yazell in 382 U.S. 341 which involved a Texas statute which said that a wife could not bind her separate property by contract, a married woman.

The Texas statute was subsequently repealed but not until after they had done a Small Business Administration loan made in which the wife cosigned with her husband.

This Court made it certiorari and despite the fact that the state statute in question had been repealed for quite a number of years, no question was even raised as to the propriety of certiorari.

The 1971 Act covers only situations where there has been either, generally speaking, a formal acknowledgement in writing or judicial determination of some similar type of proof.

In here, none of those requirements would be met so very clearly, the constitutional question that looms underneath this case is still present even with respect to the 1971 amendment to the Act.

There’re approximately 3.4 million members of the armed services covered by this Act according to the V.A.

It’s been pointed out by the Commandant of the Marine Corps in the Warner case from Virginia, that the great majority of the servicemen do not designate a beneficiary by name.

I think it’s also reasonable to assume that the majority of cases probably have already arisen.

As we diminish our participation in Vietnam, the number of cases of course would certainly slacken off.

There have been 10 or 12 cases reported under this Act in the last 10 — two or three years.

In the petition for certiorari filed in the Supreme Court of Georgia by the respondent in this case, reference was made to the fact that there were numerous cases coming up under this section which — which this question was involved.

E. Freeman Leverett:

This brings me to the merits of the case with respect to the question of the merits.

I think the case can be most easily disposed of, is one of statutory construction.

The statute here says child or children, it doesn’t say legitimate children.

And there’s no occasion for interpolating into it as one federal court has pointed out something that is not there.

The statutory terms should be construed, we submit, in accordance with the context in which they appear.

When this is done, the inclusion of illegitimates is compelled.

This is so, we say because the statute was designed as a substitute source of income for dependents.

And this purpose is served just as much with respect to illegitimates as it is with regard to legitimates.

Contrary to what we said in our brief, I think the legislative history of the 1965 Act does bear this out.

Certainly, the committee reports too, are silent on the subject.

But the statements on the floor do have for — the floors of the two Houses of Congress do support this.

There are repeated references to the fact that this dependents, to survivors, a Senate version which would have limited the benefits to illegitimate children only if designated as a beneficiary, was expressly rejected in favor of the House version which contains no such limitation.

The cases also have recognized that this is the purpose of the SGLI as well as the FEGLI.

And in a committee report —

Warren E. Burger:

We’ll suspend until after lunch counsel.

You may continue now.

E. Freeman Leverett:

Mr. Chief Justice and may it please the Court.

At the noon recess, I was making reference to a House Committee Report which accompanied a 1970 amendment to the Servicemen’s Group Life Insurance Act which raised the coverage from $10,000 to $15,000.

And this report made — express reference was made to the fact that the insurance was designed to provide support for dependents.

Respondent relies upon certain statements made in the House and the Senate Committee Reports accompanying the 1971 amendment which we have previously discussed to this effect.

The existing law does not define the terms widow, widower, child or parent for SGLI purposes.

That’s presumably leaving such definitions to local state law.

This is relied upon in a showing solve a retroactive legislative intent.

Now, this statement, we submit, has no particular advocacy in this case because it was not a statement made contemporaneously with passage of the 1965 Act but rather made six years later in connection with an amendment which was aimed at solving the very problem at which this statement was directed.

The United Mine Workers case in 330 U.S., the United versus Wise in 370 U.S., this Court held that statements made not contemporaneously with passage of legislation but rather in subsequent years by legislators who were endeavoring to amend that legislature have little or no weight or value as far as interpreting the statute.

Moreover, the statements here made were not independent determinations or statements made by Congress but rather this was simply parroting the language of the letter from the Administrator of Veterans Affairs, who sponsored this legislation.

And in his letter of transmittal, he used the same language which was quoted verbatim in the two committee reports as well as in the — the statement referred to on the floor of the House of Representatives.

Lastly, this statement which says presumably the question would be referred to state law not only is contrary to the majority of cases.

There are three lower federal court cases, two of them decided since my brief was filed or at least they were not in the — they were not annotated at the time our brief was filed, the — all contrary to the statement made by the administrator.

And moreover, on its face the statement reflects uncertainty.

E. Freeman Leverett:

And in then the DeSylva v. Ballentine case, this Court held that statements are made by an administrative agency which are adopted more from a doubt as to the meaning of the statute rather than from a comfort interpretation of the statute that this would be given little effect because of the fact that the administrative agency itself is an obvious doubt as to the question.

Byron R. White:

What do you do with DeSylva?

E. Freeman Leverett:

I’m coming to that now.

The DeSylva we say is distinguishable because of the fact that that dealt with a subject matter that is entirely different than the subject matter here.

And the DeSylva case of course dealt with the Copyright Act.

And the question there had to do only with the — the creation of a right, not the devolution of the right it dealt.

Here, the subject matter is serviceman and that is a category which this Court has held —

Byron R. White:

Well, it’s not a matter — wasn’t that a question of whether the right to renew a copyright descended to illegitimates as well as legitimate children?

E. Freeman Leverett:

That is correct, sir.

And the Court resolved by referring to state law, but on the basis of a determination that this was really a question of inheritance that Congress really intended in the Copyright Act to establish rights of inheritance.

And consequently if you would refer to state law and of course on the California law, the illegititmate could take.

But here, the question relates to a relationship that is peculiarly federal.

And that is the relationship between a serviceman and the Government.

In every case in which this Court has ever decided a question dealing with a serviceman, it has resolved it solely as a matter of federal law.

We have referred to those cases in our brief.

There are three of them that involved the NSLI Act of 1940 which the National Servicemen’s Life Insurance Act of 1940.

Two of those cases or what would in the Wissner case dealt with the designation of beneficiaries.

In every one of those cases, this Court resolved the question as a matter of federal law without referring or even mentioning state law.

Now, a person does not become a federal instrumentality or agent by writing a book or poem or music.

But he does become an instrumentality of the federal Government when he joins the armed services or is drafted.

Byron R. White:

Well, would — would you — if this case came up today, if the serviceman died today, would your beneficiary be covered?

E. Freeman Leverett:

No, sir, because there was no formal acknowledgement.

This 1971 amendment constitutes an act of Congress that specifies who is — who is a child, who is considered a child and absent a successful attack upon the constitutionality of the 1971 amendment.

The petitioner here would be excluded because of the fact that his father did not formally acknowledge him or there had been — there had been no judicial determination.

Byron R. White:

Well, what could a — what could an appellate court do when it’s — the question before it is what does the statute mean?

What does the word “children” include and pending appeal, there’s a statute that says what it means?

E. Freeman Leverett:

Well, I don’t think —

Byron R. White:

And should the appellate court take the law as it is when the case is decided or — or what?

E. Freeman Leverett:

I don’t think you could say that because Congress decided in 1971 that illegitimate children will be included only in four or five different specific categories that it must have meant the same thing in 1965 when it just used the words “child or children.”

Byron R. White:

Well, what if it didn’t know.

Byron R. White:

What if the law was changed then you say it may not be applied retroactively, is that it?

E. Freeman Leverett:

Yes.

We — we can see that because the 1971 amendment expressly says that it shall not apply.

Byron R. White:

Alright.

E. Freeman Leverett:

And the last section —

Byron R. White:

It’s the fact that —

E. Freeman Leverett:

That’s right, sir.

I would like to —

Harry A. Blackmun:

Mr. Leverett, let me interrupt you in one respect.

The sanction under which you are operating doesn’t hesitate to go to state law in at least two of the categories, does it?

E. Freeman Leverett:

In one category.

Harry A. Blackmun:

Is it —

E. Freeman Leverett:

One category where it deals with next of kin according the laws of the domicile of the serviceman’s or rather according to the laws of the serviceman’s domicile.

And I suppose you might say that you have to go to state law to determine who is the executor or administrator.

But in California’s —

Harry A. Blackmun:

Well, if —

E. Freeman Leverett:

— expressio unius argument that what Congress intended to refer to state law in the SGLI.

It expressly so said in this instance.

It did not in 1965.

Harry A. Blackmun:

In the fifth category, it goes to the executor or administrator of the estate which means it would then descend according to state intestacy law.

E. Freeman Leverett:

That’s right, sir.

Harry A. Blackmun:

Or under his will.

E. Freeman Leverett:

That’s right, sir.

Harry A. Blackmun:

So there are two —

E. Freeman Leverett:

In that sense, yes.

Harry A. Blackmun:

— category in which it clearly goes under state law.

E. Freeman Leverett:

But by expressed reference to state law.

With respect to the constitutional question on the matter of a classification generally, we say that the Labine case is distinguishable because of the subject matter.

A classification might well be constitutional in the context of intestate cessation and not constitutional when applied to a federal statute having well fair type connotations.

But I think the easiest resolution is as far as the constitutional issue is concerned, is the additional challenge to classification on the ground that this classification is really a racial classification because of the peculiarities of the history of slavery in this country.

E. Freeman Leverett:

In the Griggs case, this Court held that informant procedures and practices and tests that were neutral on their face but were found to be discriminatory in operation would — were prohibited by the Civil Rights Act of 1964 where this heavier burden placed upon the ethnic minority, was found to be a consequence of past discrimination in education.

Now we submit that the same principle applied to the Equal Protection Clause in the Constitution invalidates the discrimination here, at least in a State having a history of Negro slavery and racial discrimination.

That the classification falls more heavily on Blacks can hardly be subject to dispute.

The statistics in this record indicate that in 1957, the ratio of illegitimates between Blacks and Whites for the country as a whole was about 2-to-1.

But in Georgia it was 8-to-1, in Mississippi, 26-to-1.

In Louisiana and Alabama, about 7 1/2-to-8-to 1.

Harry A. Blackmun:

Suppose it were 51-to-49 percent would you make the same argument?

E. Freeman Leverett:

Well, they would be certainly be weakened somewhat.

But the —

Harry A. Blackmun:

It is bound to be as differential, isn’t it?

E. Freeman Leverett:

To some extent.

But when it is so great as to suggest a very particular reason for it, we submit that that of course then changes this — the character of the difference.

In 1880, two-thirds of all Negros born in United States were illegitimate and in some communities today, nearly half or more of all Negros are illegitimate.

In 1963, 24% of all non-White births in United States were illegitimate.

William H. Rehnquist:

In this particular case, Mr. Leverett the — the proceeds of the policy were paid out, were they not?

E. Freeman Leverett:

To the father of the deceased sense.

William H. Rehnquist:

Was he Black or White?

E. Freeman Leverett:

He was Black.

We have attempted to show in our brief how the institution of slavery was partially responsible, and large part responsible for this greater incidents of illegitimacy.

And we submit that where we — we have here is in this case.

Number one, the undisputed fact that the incidents is greater.

Number two, that it is the effect, the continuing effect of this past discrimination that the classification must fall.

Warren E. Burger:

Thank you, Mr. Leverett.

Mr. Jenkins.

A. Felton Jenkins, Jr.:

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

I’m Felton Jenkins from Atlanta, Georgia and I represent the respondent, the Prudential Insurance Company of America in this case.

Mr. Leverett I think has fairly stated the facts that are involved here.

There are however, two points that I would like to make just so I’m certain that the Court understands.

It’s not clear from the record before this Court that the petitioner here is in fact the illegitimate son of the deceased serviceman.

As was pointed out, there’s no written or public acknowledgement.

A. Felton Jenkins, Jr.:

There’s no father listed on birth certificate and the records of the Social Security Administration and the Veterans Administration do not show that petitioner has been recognized as the son of this deceased serviceman at least so far as this record is concerned.

And we do not contend that he’s not the illegitimate son.

We just want to point out if there is some question of fact on that point.

William H. Rehnquist:

Well the Georgia trial court found that he was.

A. Felton Jenkins, Jr.:

The Georgia trial court found that he was and the Georgia —

William H. Rehnquist:

That was upheld by the Georgia Court of Appeals.

A. Felton Jenkins, Jr.:

Yes, sir, it — it was.

The second point that I wanted to make is — concerns the question which is before this Court.

It’s been stated in the briefs I think that the question is the meaning of the word “child or children” in the Servicemen’s Group Life Insurance Act.

And that is in fact the ultimate question that has to be decided but the specific question before the Court so Prudential contends is whether or not reference should be made to state law to determine the meaning of that term.

That Prudential does not contend that — I want to make this clear to the Court that we do not contend that in every situation the word “child” does not include illegitimates.

All we are saying is that reference should be made to state law and then the law of that particular State might or — or would govern.

Of course this was pointed out in California, an illegitimate would be entitled to — to the proceeds, so we do not contend that — that that is the issue here.

Now, there are three points that I’d like to try to cover in my argument basically that have been discussed by Mr. Leverett.

The first point is we contend that the writ of certiorari should be dismissed as having been improvidently granted.

As the Court knows, the writ was granted on November 9th, 1971 and approximately a month later, Congress adopted this 1971 amendment.

Now, this amendment speaks directly to the question which is before the Court, the meaning of the word “child children.”

The amendment specifically takes care of that — of that question.

And that question just simply will not come up again.

And Mr. Leverett has raised a point and from some of the questions from the Court, there may be a question of whether that 1971 amendment is constitutional.

We of course would contend that it is constitutional but whether it is or not, that’s not a question which is before the Court in this case.

That question may later come up.

And it — it very easily could, I — I guess but it’s not before the Court here.

The question which is before this Court has been solved — has been resolved by this 1971 amendment and that question simply will not come up again.

And we’ve cited in our brief the case of Rice versus Sioux City and it’s quoted in our brief.

And it also have several passages quoted from the case and no need to — to take the Court’s time by going in to that.

Mr. Leverett mentioned the case of Jones versus Mayer Company.

He contends that that case in effect goes against the Rice case and shows that this Court shouldn’t go in and consider this question.

But in that Jones case, there was a question of the interpretation of Whites under 42 U.S.C. Section 1982 and that concern the refusal of — to sell a home or rent an apartment on the basis of race.

And while that case was being considered, Congress adopted the Civil Rights Act of 1968.

A. Felton Jenkins, Jr.:

And the Court held that it should go ahead and consider the case which was before it because the 1968 Act had no effect on this section which was under consideration by the Court, the 1982 Section.

Of course here, Congress — the — the Act that Congress has adopted, the 1971 amendment, speaks directly to the question which is before this Court.

It defines the very term which this Court is asked to consider in this case.

For those reasons, we feel that the writ should be dismissed as having been improvidently granted.

The second point that we would like to make concerns the question of reference to state law.

Obviously, we rely on the case of DeSylva versus Ballentine.

That case of course does involve the Federal Copyright Act.

It does not involve an act dealing with servicemen.

But we don’t feel that that’s any distinction.

Now, petitioner has tried to distinguish the case on two grounds.

He says that the Copyright Act deals only with the creation of literary and artistic rights or the passing on of those rights.

But — but this Court’s opinion at page 582 of that decision pointed out that the evident purpose of this Section 24 which was under consideration in that case is to provide for the office family after his death.

The very same question or very same purpose that petitioner contends the Servicemen’s Group Life Insurance Act that —

Byron R. White:

(Voice Overlap) If I ask you please, under the federal Act as amended, a child includes an illegitimate child under certain circumstances.

A. Felton Jenkins, Jr.:

Yes, sir.

Byron R. White:

So it’s not that the word “child” doesn’t ever include illegitimate children.

A. Felton Jenkins, Jr.:

That’s correct, Your Honor.

It — it could very easily —

Byron R. White:

And it — it sets up some standards for approving who — whether — whether the child is actually a child.

A. Felton Jenkins, Jr.:

That — that’s correct, Your Honor.

Byron R. White:

Has it been denied in this case that this child is a child of the deceased serviceman?

A. Felton Jenkins, Jr.:

Well, as I pointed out initially it’s not clear in our position.

We don’t contend he’s not the child, we simply say that there’s a question of fact on that — on that point.

Simply because there has been no written acknowledgement, no father was listed on the birth certificate, there’s been no judicial determination of — of that fact.

And one thing I might mention here —

Byron R. White:

Well what if I —

A. Felton Jenkins, Jr.:

Sir.

Byron R. White:

What if it were admitted?

A. Felton Jenkins, Jr.:

Well, under the 1971 amendment, I — I don’t know whether they would fall under any of the categories or not —

Byron R. White:

Well, let’s assume that they didn’t and that an addition, that the — the aim of the Act is to have a satisfactory proof of whether the —

A. Felton Jenkins, Jr.:

Yes, sir.

That’s correct, Your Honor.

Byron R. White:

— child was a child.

A. Felton Jenkins, Jr.:

Right.

Well, now I think the —

Byron R. White:

Do you think — and do you think the Act would forbid then making the child in this case a beneficiary under the policy even though the insurance company defendant admitted that he was a child.

A. Felton Jenkins, Jr.:

Well, now that’s — Mr. Leverett makes that position.

And I’ve — I don’t know whether I want to agree with or not.

One of the categories here if he has been judicially ordered to contribute to the child’s support, well I guess that couldn’t happen after his death.

I think I would have to agree with him, Your Honor.

I don’t think in this case he would fall under any of the categories, once the deceased serviceman died.

Byron R. White:

And it wouldn’t make a difference even if the defendant conceded it.

A. Felton Jenkins, Jr.:

I don’t think so under the meaning of this Act.

I guess at that point, you’d have a question of statutory interpretation.

By just from reading the Act, I — I don’t think that a situation like that would be covered under the terms of —

Byron R. White:

And even if under state — even if under state law this child would be — with — well would be treated as a child.

That’s a statement —

A. Felton Jenkins, Jr.:

That — that’s —

Byron R. White:

— in oral acknowledgement was — was satisfactory under state law.

A. Felton Jenkins, Jr.:

Right.

That — I think that’s correct, Your Honor, under the wording of this — of this statute.

But again, you might get back into the constitutional argument that Mr. Leverett says is present that this 1971 amendment is unconstitutional.

But here again, that question is not before the Court in this case.

It may conceivably come up at some point but it is not before the Court in — in this case.

William H. Rehnquist:

Presumably, even if your client were to admit the fact that the — the petitioner was a child, you’re not in a position to make admissions for the father who was also —

A. Felton Jenkins, Jr.:

No.

William H. Rehnquist:

— claiming under the policy.

A. Felton Jenkins, Jr.:

But the person down the line, yes, sir.

I’m sure that person would — would certainly have some objection to it.

Back to the DeSylva versus Ballentine decision, we simply say that there’s no real difference between Federal Copyright Act and the Servicemen’s Group Life Insurance Act.

A. Felton Jenkins, Jr.:

They both have basically the same purposes.

The other point is Mr. Leverett has always contended that the Servicemen’s Group Life Insurance Act has its purpose to look after the people who were dependent on the deceased serviceman or lets a little bit falls in the — the deceased serviceman can name anyone that he wants to, to receive the benefits under that policy.

He could name — doesn’t have to name anyone who’s a member of his family.

Under the old National Service Life Insurance Act, the serviceman could name someone that he wanted to but he had to name someone within a — within his family.

They were specific categories that he could not go outside of.Of course in this case, he could name anyone he wanted.

Our point is there’s just no real difference between the Federal Copyright Act and the Servicemen’s Group Life Insurance Act.

Warren E. Burger:

At any time up to the point of his death, he could have changed the beneficiary and made the mother of these children the beneficiary, could he?

A. Felton Jenkins, Jr.:

Yes, Your Honor.

That’s correct.

Warren E. Burger:

Or the children or both?

A. Felton Jenkins, Jr.:

Or anyone he wanted to, yes sir.

That’s correct.

Potter Stewart:

Is there anything in the record here that shows the relationship between the deceased serviceman and his father?

Other than that they were father and son?

Did it show any particular dependency or lack of it?

A. Felton Jenkins, Jr.:

Your Honor, I don’t think that it does.

The — the deposition of the father was taken and the — the son lived in his father’s home up until the time he left to go in the service.

I — I don’t think there was anything specific on — on that point.

The — the next point that I’d like to make is this question of congressional intent.

Obviously, when Congress makes some comments about the intent of an act, after it’s passed, it’s not as strong as those comments would have been had they been made at the time the Act was passed.

But when you look into a congressional intent, you try to find whatever you can.

And very clearly when the Court adopted this — this 1971 amendment, they spoke directly to that question and they’ve said that presumably, under the old law, we must look to — to state law and of course on the floor of the House of Representatives, the same — the same comment was made.

And I can’t argue with Mr. Leverett on the point that’s not as strong — an indication of congressional intent as would be present if that — if those same comments had been made back in 1965.

But here again, we — we have to look to — to what we have.

In any event —

Byron R. White:

And the same — under the 1971 Act, the same rule would apply if — if he doesn’t make beneficiaries as his children?

If he just says, “My children.”

A. Felton Jenkins, Jr.:

I’m — I’m not sure I — but — you mean if he named the — the child?

Byron R. White:

Well, the problem here is that he didn’t name any beneficiary.

A. Felton Jenkins, Jr.:

Right, he just checked that block that says to follow in accordance to the precedence set forth in the law.

Byron R. White:

Well, what if he says, “My children?”

A. Felton Jenkins, Jr.:

Well, Your Honor, I’m not sure that I told my answer to that.

Under the form, he should not make that designation.

There’s a block to check that he wants it to go in accordance with the precedence set forth in the law and if he doesn’t there, the next line down says name, relationship, something of that nature.

So he should to know to write in that name.

Now, you have another question of his intent if he just put down the word children.

Because there again, I think you probably would look to what does the word child mean?

And you’d — you’d be right back into state law under this the DeSylva versus Ballentine.

Warren E. Burger:

Let me make sure I understand you.

If he had requested that the beneficiaries be just, “my children” in quotation marks, no name.

Would they have accepted that as a beneficiary designation?

A private insurance company will not do so —

A. Felton Jenkins, Jr.:

I don’t —

Warren E. Burger:

— if I knew of it.

A. Felton Jenkins, Jr.:

Well, Your Honor, that’s a question that I don’t really know the answer so I think that —

Warren E. Burger:

Does this Act —

A. Felton Jenkins, Jr.:

— they would not.

Warren E. Burger:

— does this Act permit it?

A. Felton Jenkins, Jr.:

Well, no, really it doesn’t.

And if the serviceman did it, I guess this — supposedly he’s got a Sargent or someone there over and telling him how to fill out the form and he shouldn’t fill out that way.

That would be — he would have filled out the form incorrectly.

But if — if he did it, I would think that the children in that situation would not be entitled to the benefits of the policy.

That’s — I’m not trying to avoid your question but that’s a question that’s not in this case, and to be honest with the Court, I — I don’t know the answer to it specifically.

We come now to the question of violation of the Fourteenth Amendment, the Due Process and Equal Protection Clause.

The Court’s heard a good bit of argument today on that point in view of the Louisiana case which preceded this case.

And I don’t want to re-plow all of that ground.

Obviously, we contend that the decision of this Court in Labine versus Vincent controls the situation here.

Of course in that case, the question was the interpretation of the Louisiana intestate succession statute, and the Court held that States had to right to make a distinction between legitimate and illegitimate children in that — in that situation.

And the Court distinguished the Labine situation from the situation present in — in Levy and Glona which were decided a couple of years before.

Obviously, we contend that we’ve come within the decision by this Court in — in Labine.

A. Felton Jenkins, Jr.:

There are — are two things, however, I think that I — I would like to point out on this — on this question.

The present case, this — this case here presents really a stronger situation toward holding that the Act is not an — or — or that designation of distinction is not unconstitutional than was present in either Levy or the Labine case or the — the Louisiana Stokes case which preceded this case.

In all of those three cases, there were some impediments.

Now, the Court has used the term barrier, an insurmountable barrier.

And I suppose if you really look at those cases maybe the barrier is not insurmountable.

There are certain things in each of those situations that — that could be done but there is some barrier in each of them.

In Levy, for example, the tortfeasor could go free if there were no one there to prosecute the action.

In Labine, the father could not give the illegitimate his full estate.

He was limited to only one third or one fourth.

And in the Stokes case which this Court heard this morning, the father could not even acknowledge the — the child under Louisiana law as being his child.

Now, in this case, none of those impediments are present.

The serviceman here could simply have named anyone that he wanted to and could have named that illegitimate child to receive the full $10,000.

There is no barrier whatsoever here.

So —

Byron R. White:

When was the — when was the policy issued?

A. Felton Jenkins, Jr.:

Well, it’s a group policy and it’s issued to the Veterans Administration.

I’m not sure of the date of it.

I guess back in 1965.

The form that this serviceman signed — he signed in — in May of 1969, I guess or —

Byron R. White:

1967.

A. Felton Jenkins, Jr.:

— 1967, excuse me.

And then the child was born in June of — of that same year.

Byron R. White:

Where was he between May and June?

A. Felton Jenkins, Jr.:

I don’t think the record shows that — well, no, it does because he was on his basic training, that’s right.

And — and he had — had come home for some time.

I’m not sure of the exact time that he came home.

He then went to Vietnam as I recall the way he was killed.

But —

Byron R. White:

(Voice Overlap) — in Vietnam after the child was born?

A. Felton Jenkins, Jr.:

I think that’s correct, Your Honor.

A. Felton Jenkins, Jr.:

I — I hesitate and I’m not absolutely certain on that point but I — I think that is correct.

In any event, he knew about the child before he died, he came home and said he saw the child.

He also wrote some letters making reference to the child so he clearly knew about the child and could have made that — that designation had he wanted to.

So first of all, we — we contend that this case is a stronger case than any of these other three cases.

And the next point is that there is a reason for the distinction between legitimates and illegitimates.

And that’s really the thing that — that the Court has looked to and — and I guess should look to as whether or not there’s any reasonable basis for making this distinction.

And obviously as this Court pointed out in the — in the Labine case, the reason for the distinction is to encourage the family unit to strengthen the family unit.

We might disagree and obviously, some people do with the — the merits of doing this to further the family unit.

But that’s not the purpose of — of the Court to try to — to say, “This is — this is a bad thing or this is a good thing.”

The Court held in Labine that this was a decision that the Court — that — that or that the individual States could make.

And for that reason, we submit that there is a valid reason, a valid distinction for — for distinguishing between legitimate and illegitimate children.

In closing, I just like to emphasize again that Prudential feels strongly that this is not a case which the Court should decide in view of this 1971 amendment.

We feel that so far as this case is concerned, all of the issues which are before the Court in this case have been solved by that 1971 amendment.

That 1971 amendment may raise some additional problems but those problems are not before the Court in this case.

Byron R. White:

So under the 1971 amendment if the — if the illegitimate child offers proof that he was actually a child of the dead serviceman, the Court just won’t hear him?

A. Felton Jenkins, Jr.:

Yes, sir.

That’s —

Byron R. White:

Unless he offers —

A. Felton Jenkins, Jr.:

That’s my understanding of —

Byron R. White:

Unless he offers the kind of proof just —

A. Felton Jenkins, Jr.:

That’s —

Byron R. White:

— like that?

A. Felton Jenkins, Jr.:

— that’s spelled out in the Act.

That’s correct, Your Honor.

Thank you.

Warren E. Burger:

Thank you, Mr. Jenkins.

Mr. Leverett, you have anything further?

E. Freeman Leverett:

(Inaudible)

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.