Warren E. Burger: -- Justice White, and thank you Justice Blackmun. We'll hear arguments first this morning in Mills against Habluetzel. Mr. Mankins, you may proceed whenever you are ready.
Michael E. Mankins: Mr. Chief Justice, may it please the Court. The suit today is to determine whether the State of Texas can prohibit illegitimate children over the age of one year from seeking a determination of paternity and obtaining child support from their natural fathers. This prohibition is found in Section 13.01 of the Texas Family Code, which is a one year statute of limitations, stated simply a suit to establish the parent-child relationship cannot be filed after the child turns one year old if the child is illegitimate. Now, what Texas has done is to establish two limitations periods, one of one year for illegitimate children and one of 18 years for legitimate children. There is no limitation at all for legitimate children or children born during a marriage, they can file for child support under Texas law at any time until they turn 18. Now, it is important to note and keep in mind that this is 13.01 is the only limitation period that applies for any interest that a child may have in the State of Texas for any other kind of lawsuit. All other limitations involving an interest in children are tolled either by statute in Texas or by case law in Texas. Only 13.01 applies to an interest that a child might have. This suit was originally filed by the natural mother of the child, Lois Mae Mills, and the Department of Human Resources against the appellee. At the time the suit was filed, Archie Burton Duncan, the illegitimate child who is the subject of the suit was approximately 20 months old. The trial court dismissed the case citing 13.01 on the -- at that time respondent's motion. The Corpus Christi Court of Civil Appeals affirmed and did note that the Fourteenth Amendment allegations of the petitioner it -- at the Court of Civil Appeals was meritless. The Texas Supreme Court refused the writ of error and refused to hear the case on motion for rehearing.
William H. Rehnquist: Counsel, I noticed in the very short opinion of the Texas Court of Civil Appeals on page 16 of the appendix beginning there that there's simply -- about one sentence is devoted to the constitutional --
Michael E. Mankins: That's correct.
William H. Rehnquist: -- provision. They simply say, by points of error such and such TDHR asserts that Section 13.01 of the Family Code is unconstitutional or in the alternative that is tolled by the reason of infancy. We have addressed these issues and found them to be meritless in the Hernandez case above-mentioned. And based on the reason set forth in Hernandez, we overruled points of error one through three. They don't specify whether it's the Texas Constitution or the United States Constitution.
Michael E. Mankins: The only thing you have to look to Hernandez itself, I think we did quote some of Hernandez in our joint appendix. They don't really address it very much at all.
William H. Rehnquist: In Hernandez, they don't either, do they?
Michael E. Mankins: Okay. The only thing I can say is it was argued at some length or was briefed and argued at some length in the Texas Court of Civil Appeals and that's all the Court chose to say about it. Now, there has been one change or a major change in this law since this suit was filed and since it was determined in Texas. The one year statute of limitations has been changed now under 13.01 to a four-year statute of limitations. This went into effect on September 1st of 1981. It doesn't affect this case in any way first because Texas has ruled that limitations are a substantial procedure and that once limitation is run, it becomes a vested right of the defendant to use it as a defense and secondly the child in this suit was over four years old on September 1st, 1981. So even if it could have been used, the child here could not have used the four-year statute of limitations.
Byron R. White: And I gather, whose statute has no tolling provision either?
Michael E. Mankins: There's no tolling provision. The only change in the new statute is they deleted the word one and added the word four.
Byron R. White: Now did you say that the tolling provisions are either by statute or decision? Are those by statute, they expressly write in the tolling provision? Do they for infancy?
Michael E. Mankins: Yes, it's Article 5535 of the Texas Revised Civil Statutes that toll all of the limitations found in Title 91 of the Texas laws. Title 91 has your two-year statute of limitations for torts, your four-year statute of limitations for written contracts, and all of your general land limitations. That's a 5, a 10, and even a 25-year statute. All of those are tolled under 5535. There are other limitations such as found in workers' compensation cases and under Texas law and municipalities can -- can have limitations on suits against cities written into the municipal code. Those limitations have been tolled by common law that Texas Supreme Court has ruled that for instance in workers' compensation cases where a minor has a workers' compensation claim that the sixth month limitation there is tolled by public because of the past cases and by public policy.
William H. Rehnquist: It's only 13.01, which is not tolled.
Sandra Day O'Connor: Mr. Mankins, would it be your position that a longer statute of limitations than the one year might be valid?
Michael E. Mankins: Well one year, if you look at what illegitimate children can do which is filed at any time up until they are no longer minors, which is 18 in Texas. Texas has done this by making it four years now. But since there's no tolling provision, the difference between 4 years and 18 years, I still say all of the arguments are still the same and -- and really feel that there's no real difference since we have a difference. Texas can -- for children can make any kind of limitation period they want. The problem is, they've made one for legitimate children and another one for illegitimate children.
Lewis F. Powell, Jr.: Can you think of any reason why they did that?
Michael E. Mankins: Well the only reason we have is what the Texas courts have said and this is the standard reasons that first-year law students learned and also the standard reasons that's been cited in other states that have upheld this type of limitations for illegitimate children. That is prevention of stale and fraudulent claims. There -- there are no other --
Lewis F. Powell, Jr.: There's no --
Michael E. Mankins: -- reasons.
Lewis F. Powell, Jr.: -- problem of proof with paternity --
Michael E. Mankins: Well, that's my --
Lewis F. Powell, Jr.: -- with respect to a legitimate child, is there?
Michael E. Mankins: No. In Texas, it is presumed that the legitimate child is the child of the father or the husband of the marriage.
Lewis F. Powell, Jr.: And you don't think that that difference is enough to justify a statute of limitations --
Michael E. Mankins: Well --
Lewis F. Powell, Jr.: -- any time?
Michael E. Mankins: I don't think it is mainly because first, the blood test evidence which, I think, just to recognize the validity of which in Little v. Streater in deciding June of last year, plus the fact that you got the situation where -- which has happened in Texas, where the -- under Texas law, a husband, a father of children born during a marriage can disclaim paternity at any time during a divorce proceeding and show through blood test that he is not in fact the natural father of the children or the child of the marriage. Under Texas law, if the child is over one year old and now over four years old, that child is without a remedy to go against his true natural father and obtain child support.
William H. Rehnquist: Tell me Mr. Mankins, those statutes that you said tolled during infancy this by legislation. Would that include the proceedings brought by illegitimates?
Michael E. Mankins: Illegitimates on a -- on any other type of claim, yes sir. If a illegitimate (Voice Overlap) child --
William H. Rehnquist: In other words -- in other words, the limitation without tolling is limited to a paternity suit, is that it?
Michael E. Mankins: Only in paternity suit it's --
William H. Rehnquist: In -- in every other respect, there would be tolling in favor of (Voice Overlap) --
Michael E. Mankins: That correct. If the illegitimate child was struck down by a car, the two-year limitation for torts in Texas would not start running until that child turned 18.
John Paul Stevens: Mr. Mankins, do I correctly understand that the Texas Supreme Court has now under consideration a case involved in this very statute in (Voice Overlap) the Constitutional Law?
Michael E. Mankins: Yes Your Honor. The Texas Supreme Court refused the writ, in our case, then the Fort Worth Court of Civil Appeals ruled that 13.01 was in fact unconstitutional did -- citing the Fourteenth Amendment to U.S. Constitution. At that point, there was a conflict between two courts of civil appeal opinions. One in Fort Worth, in our case in Corpus Christi and the Court -- the Texas Supreme Court did grant the writ based on that and did hear argument on this case in February of last year.
John Paul Stevens: Hasn't decided yet?
Michael E. Mankins: Has not decided the opinion the last time I checked, which was about a week ago.
John Paul Stevens: Are they waiting for this Court or should we wait for them?
Michael E. Mankins: Well, I don't personally don't know. Insiders have told me that they're waiting on this Court. But whether that's correct or not, I have no idea.
William H. Rehnquist: What's the normal pattern in that court in terms of the time? Do they (Voice Overlap) --
Michael E. Mankins: Normally they are much quicker --
William H. Rehnquist: -- before they rise?
Michael E. Mankins: They're determined generally much quicker than that. Ninety days to six months, I have been told. I don't have extensive experience and even the U.S., in the Texas Supreme Court, much quicker. There were cases I've had up there have been decided quicker than that.
William H. Rehnquist: You're not in the Fort Worth case?
Michael E. Mankins: No, Your Honor. Under a strange interpretation of the Texas Supreme Court's rules on taking conflicts, our case even though the Fort Worth case was decided just shortly after our case was decided and before our case had gotten, we already passed the Court of Civil Appeals in Corpus Christi, but we're not had filed our writ in the Supreme Court of Texas. But we -- we could not claim conflict under the Texas Supreme Court rules, the Fort Worth case conflicted with us but since -- but our case does not conflict with theirs.
John Paul Stevens: Can you tell me whether there was challenge to Statute, on the Texas Constitution in that case or is it just a federal question you know?
Michael E. Mankins: In -- in the Fort Worth case?
John Paul Stevens: Yes.
Michael E. Mankins: I do not know. I do -- the only I do know was challenged. I do know it was challenged on the U.S. Constitution's Fourteenth Amendment.
William H. Rehnquist: This case is styled and the Court of Civil Appeals in the matter of ABD, a minor child, and one gets the impression from reading it being -- being unfamiliar with Texas procedure the way as I am, but the Texas Department of Human Resources was the plaintiff.
Michael E. Mankins: Well, the Department of Human Resources by both federal law and state law, they were supplying support. Archie Burton Duncan and his mother were receiving AFDC, $86 a month in the State of Texas and when you receive AFDC both by federal law and -- and state law which has enacted, automatically, any rights to child support are assigned by law to the state.
Byron R. White: And the state must -- can bring the action.
Michael E. Mankins: And the state must bring the act -- well, the mother could theoretically bring the action by herself but generally in a AFDC case, it will be the state who will bring the action.
Lewis F. Powell, Jr.: Well and did you represent the Texas Department of Human Resources in the state proceedings?
Michael E. Mankins: Not in this proceeding. I worked for the Department of Human Resources in this area and filed numerous suits exactly like this. Then I switched jobs and went to work for Coastal Bend Legal Services and with an office in Sinton and I was familiar with this case and because the Texas constitution prohibits anyone, but the Texas Attorney General, from representing the case on appeal -- I took over the case on appeal for the Department of Human Resources.
William H. Rehnquist: Well is -- isn't there something of a party's problem there?
Lewis F. Powell, Jr.: I'm sorry, I don't understand.
William H. Rehnquist: Well, if your client, Lois Mae Mills wasn't the party before the Texas Court of Civil Appeals, can she then step in and be a party?
Michael E. Mankins: It was a party at the Court of Civil Appeals.
William H. Rehnquist: Well that's probably what I don't understand. She was a party of (Voice Overlap) --
Michael E. Mankins: She was a party. In fact in the original petition, both her and the -- a child were named as parties. These -- under Texas law, these are confidential cases until there's a final decree and at the request of either side -- and I don't know who request it. The -- well I believe it was the appellee here. This case was styled in the interest of ABD. Now, this case is the 16th case, I believe, that this Court had heard -- has heard involving the rights of illegitimate children since 1968. Now, this Court has, in these cases has basically determined that where a state attempts to restrict the rights of illegitimate children and where these rights are fundamental personal rights then the state must show some, as this Court had said, significant interest or significant relationship to be served. In other words, the rule seems to be is -- under the Fourteenth Amendment that we're going to look behind the words and look at the reality of the situation, the reason being at the state is seeking to restrict what is fundamental personal rights. Clearly the determination of paternity, the establishment of paternity, and the obtaining of child support is such a fundamental personal right. Texas can discriminate against illegitimate children under the Fourteenth Amendment. But in order to do so, it must have some awfully good reason for doing so. In other words, we're not going to let states simply use any reason that comes to mind and in order foster a -- a classification or a disfavored class of illegitimate children and clearly, a very short limitation time does not serve the purposes of children, illegitimate children and in fact is -- it hinders their obtaining child support and getting their paternity determined.
William H. Rehnquist: Did I get the impression from what you've said earlier that's any limitation short of age 18 years would be unconstitutional?
Michael E. Mankins: No, I don't. I think once again Texas can establish any limitation at once for obtaining child support. I think it could establish four legitimate and illegitimate children. It's the fact that we've got two of them here. That's the problem.
William H. Rehnquist: That's what I'm talking about, just the -- this case for illegitimate children. Do I understand you to say there can't be any statute of limitation, short of age 18?
Michael E. Mankins: I think as long as its legitimate children have that right until 18, I think illegitimate children should have that right. I think that's correct.
Lewis F. Powell, Jr.: Well, Mr. Mankins, do you also have an argument that in any event illegitimates are discriminated only in against -- only in paternity suits? I think you already told me.
Michael E. Mankins: That -- that is (Voice Overlap) --
Lewis F. Powell, Jr.: That in every other kind of suit where a legitimate may benefit from tolling and -- a minor benefits from tolling so also does an illegitimate.
Michael E. Mankins: That's correct.
Lewis F. Powell, Jr.: It's only in this particular kind of proceeding that there's a discrimination against the illegitimate.
Michael E. Mankins: That's right.
Lewis F. Powell, Jr.: So that it's a -- it's more than just a discrimination as between legitimates and illegitimates, isn't it?
Michael E. Mankins: That's -- well, that's correct.
Lewis F. Powell, Jr.: It's within the class of illegitimates is also a --
Michael E. Mankins: That's correct.
Lewis F. Powell, Jr.: -- discrimination you can tell.
Michael E. Mankins: That's correct. If -- if toll -- if having this limitation is important and the Department of Human Resources v. Chapman, which is the case that -- that said this was a valid law for the reasons that we're going to prevent stale and fraudulent claims, if that was so important a legit -- an interest that the state needed to protect, the question of course is, and why isn't it important in any other case? Why is preventing stale and fraudulent claims so important here when it's not important in a workers' comp case? When it's not important in an automobile wreck case in effect? When it's not important if illegitimate has an interest in land?
William H. Rehnquist: Well, do you have -- do you have a paternity issue with these other cases?
Michael E. Mankins: No, you don't.
William H. Rehnquist: Is that not the difference that Texas relies on?
Michael E. Mankins: Well, the problem with that is that its paternity is probably -- paternity suits are probably better at withstanding time as far as evidence is concerned, the stale evidence argument for restricting these cases because of the availability of the blood test. Here, the blood test that's very good evidence and it lasts as long as you've got blood in your veins and they can do these blood tests at any time.
William H. Rehnquist: A blood test is only a negative test, is it not?
Michael E. Mankins: Well it is a negative test, but the exclusion rates are so high, routinely 98 to 99%. Also according to Dr. Terasaki who is a pioneer in this, that now 100% exclusion rates are now possible. They are expensive but they are possible. With that kind of evidence, the evidence itself in the case doesn't become stale. Plus in -- in paternity cases, generally blood test evidence is the only real objective evidence you ever had. The question is, did the alleged father have sexual relations with the natural mother nine months before the birth of the child and then is he the father of the child? Whether or not he had sexual relations with the natural mother is something only the natural mother and the father going to know anyway. So you don't have any, as a general rule, you don't have any other witnesses who are -- whose memories are going to fade who are -- who are going to get lost and you're not going to be losing any sort of documentary evidence. If anybody is harmed by the passage of time, it would be the natural mother and the child themselves, but clearly they have the burden of proof and if there's going to be any evidence that's -- that's lost, it's is going to be their evidence.
John Paul Stevens: Would you agree that the state could rationally require the plaintiff in this case to have a heavier burden of proof and the plaintiff in a case establishing paternity by a legitimate parent? In other words, in the legitimate case, presumably you could say that all he is to do is prove that -- that the -- the person who was married to his mother is -- that the male was married to his mother that would be sufficient to establish paternity. But in this case, could the state rationally say that in addition to proving that the two parties were living together at the time of birth or prior to the birth that they had certain other things that had to be proved? Would that be --
Michael E. Mankins: Well --
John Paul Stevens: -- constitutional?
Michael E. Mankins: I wouldn't see -- I would say that it would not be. Clearly, it makes a better situation because that's going to be easier to prove. But to one skin It would -- what interest would that serve in having a higher a burden of proof in an illegitimate case as proving paternity as opposed to a case where the father of the illegitimate child is trying to disprove paternity. Seems to me like --
John Paul Stevens: Well I supposed the answer that might be that the common experience teaches us is a greater probability of accuracy in one situation than the other.
Michael E. Mankins: Well, if that could be shown, I'm not sure that --
John Paul Stevens: There are more false claims in the illegitimacy area than there are in the illegitimacy.
Michael E. Mankins: Well, the problem with that is that I have had simply never -- everybody talks about these fraudulent claims as the attempt for blackmail, but with the type of testing procedures we have in blood test with the other protections that the alleged father has, the actual -- the actuality of fraudulent claims is virtually nonexistent. It does --- it really doesn't ever happen. Certainly, men deny, and the appellee here is denying his father but (Voice Overlap) --
John Paul Stevens: (Inaudible) we know they happened in Texas anyway.
Michael E. Mankins: Well -- yes, that would be where my experience is clearly. Now, it might be happening somewhere else, but it is not happening as ruled in Texas. But once again -- and that's the problem I have with that kind of ruling. It puts some extra burden on -- on illegitimates, which if it could be shown, that there was a greater possibility or greater potential for these kind of fraudulent cases, sure, they then could require an extra burden because then, the restriction on fraudulent cases would make some rational sense. But I haven't personally seen it, there's -- there's nothing in the case law that indicates this is -- is the situation and the type of evidence, once again with blood test and the protections that the alleged father has in these cases, I think prevents that from happening, certainly in Texas. In Texas, the venues in the father's hometown or home county, if he wants it, pursue this confidential, under Texas law if the mother is excluded, the mother and the natural child take blood test, and the father is excluded the suit is automatically dismissed on -- on motion. The mother does not have, the mother and the child do not have the right to go forward with evidence even -- even with an exclusion and try to show that -- that the man is the natural father. Also, if the mother and the natural child under Texas law refuse to take the blood test, the case is dismissed whereas if the alleged father refuses, then he can be held in contempt. But that's all.
John Paul Stevens: Let me put the question little differently. Would it be constitutional for the State of Texas to say that in cases like this, there must be a blood test? The cases involving legitimate children, there's no need for a blood test.
Michael E. Mankins: Well, I think that is the law in Texas.
John Paul Stevens: But that is, then there is some difference in the treatment of their (Voice Overlap) --
Michael E. Mankins: There is some difference and we don't have a problem with that. I don't have any problem, and that is what 13.02(a) but have -- does require, it does require to blood test, the Court -- it is in mandatory language, shall appoint blood test expert to make these tests. And I don't see any problem with that at all. The -- the problem we have is, if you have all of those, if the State recognizes the validity of blood test, recognizes their accuracy, recognizes the fact that that if the alleged father is -- is excluded, the case is dismissed right there, no trial. If they recognize all of that, then why have the one year statute of limitations? Clearly, maritarial suits are being dismissed that could otherwise be proved up.
Harry A. Blackmun: Did you say that if the putative father refuses to take the blood test, there's a sanction of contempt?
Michael E. Mankins: Contempt, $500 and six months in jail --
Harry A. Blackmun: Well, there may also be a finding of paternity against him?
Michael E. Mankins: No. Texas, 13.01 in fact, there is some disagreement on this in Texas but under some of the of the Trial Court rulings, there's no appellant ruling on this at all. The fact is that a refusal can't even be used in evidence. The language is a little obscure under the Family Code but it says something --
Harry A. Blackmun: Well, what happens to the mother's paternity claim if a -- if a putative father refuses to submit?
Michael E. Mankins: She's got real tough case.
Harry A. Blackmun: She cannot --
Michael E. Mankins: No, she can go forward with the law suit. She can -- she can go ahead. She and the child can go ahead and try the case or there just won't be blood test evidence. It will be the standard kind of --
Harry A. Blackmun: Well, I know, but if she does, she may prevail and (Voice Overlap) --
Michael E. Mankins: She may.
Harry A. Blackmun: -- judgment of the of paternity --
Michael E. Mankins: She may.
Harry A. Blackmun: Well, that's right. In addition to the sanction or contempt --
Michael E. Mankins: Right.
Harry A. Blackmun: I see.
Michael E. Mankins: Right. But, the opposite, if the mother of the child refuse to take the blood test, the case is dismissed. So, you know, that's going to put -- and where the accuracy, but that's going to put a serious road block in Texas to fraudulent claims.
John Paul Stevens: It's definitely a blood testing hasn't yet, if they ever can, evolve -- the technology hasn't evolved to the point where it can be affirmative on the issue of it (Voice Overlap) --
Michael E. Mankins: Well, once again you were talking about medical terms and if it's a double negative, Dr. Terasaki says, he can get 100% exclusion rate now.
Byron R. White: What does that mean?
Michael E. Mankins: It means that all possible non-fathers would be excluded.
Byron R. White: Well, I -- does that necessary, then does it follow then -- does it follow then that this particular person is the father?
Michael E. Mankins: That's what I think. If all other potential non-fathers actually give 100% exclusion rate, that means you have, a 100% inclusion rate.
Warren E. Burger: If you look at our recent case, I think under the Connecticut you'll find that all it does this prove who (Voice Overlap) --
Michael E. Mankins: Who could not be a father, that's correct.
Warren E. Burger: -- it's a negative test which is only a fraction although a large fraction with the total, but it's nothing like a 100% as you're suggesting.
Michael E. Mankins: Well, I do --
Warren E. Burger: That's simply an incorrect statement.
Michael E. Mankins: Well, Dr. Terasaki made that statement in one of his articles which we have cited in the brief. “I have never seen a 100% exclusion rate. I've seen exclusion rates over 99.25, 44” something like that.
John Paul Stevens: What do you mean you have seen them?
Michael E. Mankins: I had them in our cases where we have done blood testing. He said that the alleged father was not excluded and that the probability of exclusion was that they have excluded 99.25% or 99.21% of all potential fathers based on the --
John Paul Stevens: That would still leave the -- that would still leave the defendants some others.
Michael E. Mankins: It still would leave the defendant and some others and of course that is for him to argue to the judge or the jury. Our position being that he -- if we had that kind of evidence, of course, you know, he was having sexual relations and we have this and this is the evidence.
John Paul Stevens: Well, even the doctor's article about the 100% exclusion rate, he didn't say that's true with all cases. Just there was a particular case in which (Voice Overlap) --
Michael E. Mankins: Well --
John Paul Stevens: Isn't that right?
Michael E. Mankins: No. I understood that the saying that they could test now for enough -- in fact genes on the DNA molecule that they could get a 100% exclusion rate.
John Paul Stevens: In all cases?
Michael E. Mankins: Well, that's the way I understood.
John Paul Stevens: I see.
Michael E. Mankins: He did not go into any details on this. It is not currently done in any cases.
John Paul Stevens: But a part from that article, isn't the general understanding that the degree of reliability varies with the various factor (Voice Overlap).
Michael E. Mankins: It does very -- it does very -- almost of them are in the 90% rate with about 25% now according to some of the experts we cited over 98%. So one in four over 98%, the rest of them are probably over 92%.
Thurgood Marshall: Mr. Mankins, may I back up a minute. The putative father does not take the blood test. Can the mother bring that up as evidence?
Michael E. Mankins: Once again, this confusing in Texas law. We don't have an opinion from the appellate court in Texas as what this means. The Family Code says, if he doesn't take the blood test, the fact that he didn't take the blood test, the evidence can only be introduced to show he's not excluded. Some of the trail court's rule, so that means he -- like this moment, you can't say that he didn't do it, but you can argue that no blood test had been made and he is not excluded under blood test. Some courts have -- some trial courts have said that -- that you can open up the whole thing to show that you tried to give him to take blood test and he refused.
Thurgood Marshall: So there is great protection on the father, still?
Michael E. Mankins: I think there's abundant protection on the father. Well, certainly with 13.01, your excluding cases that could otherwise be tried. And these, with no real reason, when you look at all the other protections given to the natural father.
William H. Rehnquist: Mr. Mankins, the reason for your paternity suit I supposed is to establish the base for support.
Michael E. Mankins: Right. That's correct.
William H. Rehnquist: Suppose the putative father, knowing the mother tendered support for 18 months and then decided to quit. Is she out in the code?
Michael E. Mankins: I think she would be under Texas law. There is no opinion again in Texas on an estoppel argument. The only thing we have that's close to it is Department of Human Resources v. Hernandez, the companion case to this case decided by the Corpus Christi Court of Civil Appeals. They -- in talking about totaling generally and about why this case should not be told, said that well, if we told if the case limitations runs against the mother but it didn't run against the minor child and we're defeating the policy of a limitation in paternity anyway. Implying that estoppel which would also defeat the policy of a limitation in attorney would also not apply. But Texas, unlike other states, doesn't have any estoppel clause in their limitation period. Other states which have limitation periods on these type of cases have in the limitation itself, the fact that if the father voluntarily supports the child then their limitation starts running after he stops supporting. Texas doesn't have any of that and we don't have an opinion as to whether Texas would have that if that was used as a (Voice Overlap) defense and limitation.
Harry A. Blackmun: Early in your argument you talked about the change in the law.Must we decide that the one -- that the one year statute is unconstitutional or the four or both?
Michael E. Mankins: Well, because four is simply not for the Court. It's not in this case. I simply, as my personal opinion (Voice Overlap) -- think it's a one year unconstitutional.
Harry A. Blackmun: Why is it within the case?
Michael E. Mankins: Well, because we -- we -- only the one year applies to us. Article 1 Section 16 of Texas Constitution and the decisions by the Texas Supreme Court under that state that when a limitation runs, it becomes the best to defense of the defendant. It had run in this case --
Harry A. Blackmun: Well, that maybe so, what if we agreed with you that well therefore because of that rule, the one year statute is here supposed we said that unconstitutional?
Michael E. Mankins: Well -- I -- my --
Harry A. Blackmun: Well then, wouldn't you have to reach the four-year statute?
Michael E. Mankins: I think all the (Voice Overlap) argument --
Harry A. Blackmun: Then the question would be are you barred by some other rule and they would say, “Yes, you're barred by the four-year statute”, and then (Voice Overlap) you'd have to reach that, wouldn't you?
Michael E. Mankins: The Texas Supreme Court could very well make that determination.
Harry A. Blackmun: What do you mean the Texas Supreme Court?
Michael E. Mankins: Well, they would have to read the opinion and if it was nearly written only applying the one year. Certainly, I think if the one-year is unconstitutional, the four-year is unconstitutional because it's the same situation all over again. Why have limitation of four years when there's no other limitation involving the rights of children or illegitimate children in any other kind of lawsuit --
Harry A. Blackmun: Is -- isn't there another reason why the four-year statute isn't before us? The statute limitation is an affirmative defense. Did your opponent plead the four-year statute limitation as a defense in this case?
Michael E. Mankins: No, because it did, in one law (Voice Overlap) --
Harry A. Blackmun: Well, how can it be before us?
Michael E. Mankins: Well, that's -- that's one thing. It is not before this Court at this time. But my argument is that -- that even though it's not before the Court, certainly, if the one-year unconstitutional for all the same reasons, the four years is going to be unconstitutional. I have the four-year statute here when you don't have a limitation for anybody else. And of course, the evidence for four-year is just as good 36 months later as it would be after one year.
Warren E. Burger: On page 6 of your brief, you have the statement, “Blood test has -- is virtually can prove or disprove paternity” because it last -- that last forever. Now, that's -- that first half of that statement is fairly incorrect, isn't it?It doesn't prove.
Michael E. Mankins: Well, it's incorrect and that --
Warren E. Burger: It can only improve in 99% or whatever the doctor said.
Michael E. Mankins: Well, it's incorrect in that as you state it does not affirm -- affirmatively state who the father is. But it excludes so many people that coupled with the other evidence that you normally have in -- in any type of lawsuit makes a -- a very strong case. It's -- (Voice Overlap) it's a type of --
Warren E. Burger: (Inaudible) statment would be blood tests can disprove paternity.
Michael E. Mankins: Blood test can certainly disprove paternity at anytime.
Byron R. White: Of course, your statement is, that it virtually can prove.
Michael E. Mankins: Well, that is from a lawyer who's tried about 60 of these and this type of evidence is overwhelming when you get it to the jury and the judge for that matter. They're going to look at this and -- and really this is very strong evidence.
John Paul Stevens: Of course, you can't make the statement rely on a -- on the one-year statute.
Michael E. Mankins: I don't understand Your Honor.
John Paul Stevens: Well, you say the -- that defendant -- the defendant has a -- has a vested interest in the one-year statute and even if it's repealed, it can rely on it.
Michael E. Mankins: No, if it's repealed then we would go back to the (Voice Overlap) --
John Paul Stevens: Well, I know but if it's amended like it has been.
Michael E. Mankins: He can't rely on in this case, no.
John Paul Stevens: What do you mean he can't?
Michael E. Mankins: Well, because the one-year had already run when we filed the case under Texas Law and plus the child was over four when (Voice Overlap) the four-year went to effect.
John Paul Stevens: I just don't -- my question is why hasn't the case moved when one-year statute is gone?
Michael E. Mankins: Well, it's not gone in Texas.
John Paul Stevens: Why?
Michael E. Mankins: Because Texas court has not ruled that it's unconstitutional other than in the -- in the Courts of Appeals.
John Paul Stevens: I know but it's been repealed. I mean the one has been changed to four.
Michael E. Mankins: But there --
John Paul Stevens: Once have we decided on the one year?
Michael E. Mankins: Well, because all children born after September 1, 1975 who are illegitimate, and who were not one-year old by September 1, 1981, and who have not had a lawsuit to determine paternity are still barred by 13.01.
John Paul Stevens: Why?
Michael E. Mankins: Because 13.01 was the law that was in effect when they were born.
John Paul Stevens: Yes, but if the state didn't plead the one-year statute you wouldn't be barred by it.
Byron R. White: But they did plead the one-year statute.
Michael E. Mankins: The defendant.
John Paul Stevens: I know but you can't -- if the state got up and said he waived the one-year statute.
Byron R. White: Oh, the state can't waive it though.
Michael E. Mankins: The defendant -- the defendant, it's he's vested right under the Texas Constitution. If -- if we have a child that was born in 1977 and I go back to San Patricio County --
John Paul Stevens: The defendant's vested right?
Michael E. Mankins: Defendant's vested right.
John Paul Stevens: Well, that's -- that's the -- and what does he do?
Michael E. Mankins: He's the -- he's the alleged father. And if -- if we filed a lawsuit in San Patricio County on a child born in 1977, the one -- the defendant today can plead the -- our -- can plead the one-year statute of limitation.
John Paul Stevens: You don't have to make it hypothetical, the reason you're going to lose this case is because that one-year statute. That's the only reason you can't prove paternity, isn't it?
Michael E. Mankins: That's correct.
John Paul Stevens: And we don't have to talk about hypothetical cases.
Thurgood Marshall: You can --
Michael E. Mankins: I cannot go back.
John Paul Stevens: And the four-year statute can't be involved because you did file within less than four years, didn't you?
Michael E. Mankins: Well, the child was -- yes.
John Paul Stevens: I mean when you brought this proceeding, it was within four years.
Michael E. Mankins: That's correct.
John Paul Stevens: So the four-year statute can't be barred in this proceeding.
Michael E. Mankins: That's correct.
John Paul Stevens: The only thing at issue here is whether the one-year statute prevents you from recovering.
Michael E. Mankins: That's correct.
Warren E. Burger: Ms. Bonner.
Lola L. Bonner: Mr. Chief Justice, may it please the Court. The appellee in this case did indeed file a motion to dismiss is moot. At that time -- after that time the four-year statute of limitation became ineffective on September 1, 1981 taking the position that a child born subsequent to September 1, 1977. And Texas could probably file the suit and Texas would give retroactive effect to the new statute which became effective on September 1, 1981. That issue has not been decided by the Texas courts, which is the reason our appellee filed a motion to dismiss as moot, seeking time for the Texas court to decide whether or not it was going to give retroactivity to the new four-year statute.
Warren E. Burger: Are you suggesting that a proper remedy would have been to bring a new suit to a year ago before the four years had elapsed?
Lola L. Bonner: It's true. Why -- why litigate the one-year when you have the four-year looming before you?
John Paul Stevens: Ms. Bonner, you represent the punitive father, right?
Lola L. Bonner: I do.
John Paul Stevens: Have you waived that defense?
Lola L. Bonner: Not -- (Voice Overlap).
John Paul Stevens: You are now contending that's an obstacle to your client having the basic work money are you not?
Lola L. Bonner: Not at all, sir, because the child --
John Paul Stevens: Well, then why don't you waive the defense?
Lola L. Bonner: The child in this case was born in February of 1977.
John Paul Stevens: But he filed suit less than four years after he was born. If you waive -- if the one-year statute isn't an obstacle, whey don't you just say, “Let's go to trial.”
Lola L. Bonner: Well, I don't see that I was -- that the appellee in this case was in a position to do that because by the time, our legislator promulgated and formulated the new four-year statute. This case had already been refused and -- in the Supreme Court of United States.
Byron R. White: See, but you don't -- haven't loss your right to waive the defense, you could say right now, well, waive the defense and go to trial. Cases in moot as long as you maintain, the limitation is barred.
Lola L. Bonner: What -- what the appellee was attempting to do was give the Texas courts an opportunity to decide whether or not they would apply a -- retroactivity to the new statute before we came up here, because it would appear to me and I disagree with Mr. Mankins when he -- when he suggested that the Texas courts are not going to give retroactivity for this reason. There are several cases which referred to not giving retroactivity to the one year statute which became effective in our state on September 1, 1975. The reason to me is clear. That was a substantive right which was granted by the Texas legislature for the first time as an avenue for establishing paternity. Now, appellant would had you -- have you believe that Article 13.01 of our Texas Family Code is a support statute and it is not. It is a paternity statute. Now, it is true that it is a predicate and avenue for an illegitimate child to establish paternity where upon then it can establish support. It does many other things. It gives that illegitimate child an opportunity to declare itself an heir at law for purposes of inheritance from an interstate biological father. It gives that illegitimate child an opportunity to qualify for social security benefits in the event of the death of the worker holding a social security account number. It likewise, gives that illegitimate child an opportunity to establish paternity for the purpose of becoming entitled to workers' compensation, to life insurance policies, and those kinds of things. Now, this avenue in Texas was not available to an illegitimate child until September 1, 1975. It was this Court's mandate in a support case entitled Gomez versus Perez. But it goes far beyond enabling an illegitimate child to enforce support. It does other things. Appellant takes the position. A legitimate child in Texas can support -- enforce support at any time until it attains the age of 18 years under our Texas law. So can the illegitimate child if it will take the step to prove paternity. If the illegitimate child takes that step and establishes paternity, then it too may enforce support until it attains the age of 18 years.
Warren E. Burger: Now, they can do it over a span of four years to establish --
Lola L. Bonner: That --
Warren E. Burger: -- paternity.
Lola L. Bonner: -- is correct, establish paternity, which is a necessary prerequisite in illegitimacy. Otherwise, how do you enforce support? Do you enforce it against all of the men of the world or must you not establish? This is the proper father, biological father from whom I'm going to seek my support. Now, the Texas legislature did not limit the right of the child to bring this suit within the one year period of time to establish this paternity. It obviously gave the Texas Department of Human Resources the right it gave anyone who had an interest in that child the right to bring the suit including the father. Now, in -- on September 1, 1975, we had our first --
John Paul Stevens: Who would the father sue in such litigation?
Lola L. Bonner: To establish paternity?
John Paul Stevens: Yes.
Lola L. Bonner: He may establish paternity voluntarily by going into court.
John Paul Stevens: Without doing or require a lawsuit.
Lola L. Bonner: That's -- that will, --
John Paul Stevens: And he --
Lola L. Bonner: -- but he may.
John Paul Stevens: -- could do it more than one year after the child was born, couldn't he?
Lola L. Bonner: Yes. He could -- he could waive that. Yes, that is correct. And incidentally, I want -- I want to touch on -- on this about the blood test. Now, I know nothing about the blood test. All I know is what I read from the opinions rendered by this Court. But it's my understanding that a blood test does not show that you are the father, it simply shows that you are not the father. Now, at that point, you must proceed on other evidence. If the one-year statute is held to be unconstitutional by this Court, then we revert to pre-1975 law, which is governed by Gomez versus Perez, and in this -- in the case of the state, the Texas Department of Human Resources versus Delley. That court has held insofar as I know or believe this is the law, that a pre-1975 child has until four years past attaining the age of 18. So, that a child in Texas should this one-year statute of limitations be held unconstitutional may wait until they are 21 years, 11 months old, and filed a suite to establish paternity. Now, if that blood test does not show that the alleged father is not the father, then the case proceeds on other evidence.
Thurgood Marshall: How does that help the chid then?
Lola L. Bonner: I am sorry I did not understand.
Thurgood Marshall: How does that help the child involved in this case?
Lola L. Bonner: It wouldn't help any child because his -- his right to support has -- has --
Thurgood Marshall: How could you say that this child went down with a one-year statute and therefore has no cause of action? Are you saying that that child, 18 years from now, --
Lola L. Bonner: Only --
Thurgood Marshall: -- say that it is the same person?
Lola L. Bonner: Only if this Court says that that one-year statute of limitations which governed this case is unconstitutional.
Thurgood Marshall: (Inaudible)
Sandra Day O'Connor: Mrs. Bonner, just to clarify this a little more, if this Court were to rule the one-year statute of limitations invalid, then the appellant would be able to proceed to a established paternity
Lola L. Bonner: That is correct.
Sandra Day O'Connor: And then, thereafter, conceivably could seek support (Voice Overlap) from the father if paternity is established.
Lola L. Bonner: Right. And --
Sandra Day O'Connor: And you were still asserting the one-year statute of limitations as a defense on behalf of your client.
Lola L. Bonner: I did at the trial level of this case, yes. The trial of this case was never heard on the merits. Paternity wasn't even mentioned. The case was dismissed because it was barred by statute of limitations. No trial on the merits was held --
Sandra Day O'Connor: Right.
Lola L. Bonner: -- which is the reason I requested in the Texas Court that the style will be changed to in re ABD in lieu of the manner in which appeal was taken at United States of America because -- and counsel pointed out the fact that -- that these cases are confidential. I respectfully disagree with that. We have my client's name all over the pleadings in these cases which were very public. There had been articles in our study concerning this very case naming my client against whom paternity has never been established. But walking further in the proof of these cases where the blood test does not show that the father is not the child. What man has kept records for 21 years and eight months which could possibly disprove that the mother of the punitive child had access to him or vice versa.
Byron R. White: It would be unlikely, you have a 21-year old suing for support, isn't it?
Lola L. Bonner: That is correct. But if you had a 16 year-old, in one of the cases in which I'm presently involved we have three year-old (Voice Overlap).
Warren E. Burger: But you were -- but you were referring to the other consequences, rights of inheritance and so forth.
Lola L. Bonner: That is correct.
Warren E. Burger: -- which might be worth to -- to you more than the support.
Lola L. Bonner: Absolutely, absolutely. Now --
Warren E. Burger: Now, are you -- are you saying in your earlier remarks and -- but essentially this is not a support case, this is just another paternity case.
Lola L. Bonner: No, this --
Warren E. Burger: And that the support is simply a collateral consequence of the results of the paternity case.
Lola L. Bonner: This is a support case. I am suggesting that Article 13.01, the statute being attacked is not a support statute. It's a paternity statute. And our state legislator has said “Fine, to illegitimate children, we will afford you an opportunity to establish paternity.” Now once you do that, you're entitled to support, inheritance, social security benefits, workers' compensation, and on and on, which was the point I was attempting to make. We take the position that the state legislator has the right to set a limit, a time limit on the right of the illegitimate child or its mother or the TDHR, or anyone else enlisted in the child to -- to bring that. And obviously, you're going -- you have more than 12 months anyway. You actually have 21 months.Under our statute, they suit to establish paternity may be filed before the child is born. Now, there is a provision that if that happens, then the blood test for the child should be made after the child is born. But a woman is going to know that she is has long so -- long before the nine-month period of time, has expired. So in addition to that nine months, then she has the one year period additionally because the statute subject of this case says that a suit to establish paternity may be brought within -- must be brought within one year from the date of the birth of the child otherwise it is barred.
William H. Rehnquist: But in any event, you do concede that the statute was the Texas legislature's response to Gomez against Perez?
Lola L. Bonner: I -- I think I would have to say that as --
William H. Rehnquist: To that extent -- it's a support statute to that extent anyway.
Lola L. Bonner: I think that's true. But it does do other things. It does do other things. It -- it provides an illegitimate child an avenue and the -- in attempting to look down the road as to what might happen, I would hate for our state to end up with the situation where we have discrimination among the class, that class being known as illegitimate. For example, from and after September 1, 1981, an illegitimate child has four years in which to file a suit. If this Court holds that Texas did not have the right to set a one-year statute of limitations on -- in paternity matters, holds it on constitutional, under the existing Texas Law, that child will have until four years after it attains the age of 18. So, you have one illegitimate child who has four years to bring a suit and you have another illegitimate child who has until they're 22 years of age --
Byron R. White: Well, Texas could enact -- enact another statute to take care of that kid thing.
Lola L. Bonner: I beg your pardon?
Byron R. White: Texas could enact another statute that to --
Lola L. Bonner: Yes.
Byron R. White: -- take --
Lola L. Bonner: -- they do.
Byron R. White: -- take are of that problem.
Lola L. Bonner: And at -- frankly, anticipated the question, why do you think the Texas legislature said one year at first and now it is saying four. And the only answer that I can give is that you know the thinking minds of the legislatures better than I, and we have all seen in our lifetimes that when a new act or new law is effectuated or promulgated and enacted, they start off somewhat easily and then perhaps bear down. We see that more frequently, I think, in the tax field than we do in --in fields of -- of like paternity.
Warren E. Burger: (Voice Overlap) Ms. Bonner, do you argued that the four-year statute had run and that he would be barred if for one reason or another he went back, but if he has a pending case which he surely has, under the one-year statute, do you believe that the four-year statute has already run on him?
Lola L. Bonner: I do. Even if -- even if our Texas courts gave retroactive effect which I believe they will, to the new law, the new four-year statute that it would cover children born from and after September 1, 1977, that this case would at that point be barred because of the birth of this child in February of 1977.
Warren E. Burger: Even though --
Lola L. Bonner: That's just now --
Warren E. Burger: -- the kid was brought within the four years?
Lola L. Bonner: Yes sir. That's just my opinion. That -- that has --
William H. Rehnquist: Ms. Bonner, do you know anything about that Miller case -- it is the situation challenged under the Texas Constitution as well as the United States Constitution?
Lola L. Bonner: Article 1 of the Texas Constitution is mentioned. However, the case was decided on discrimination under the Fourteenth Amendment of the United States Constitution but not because of illegitimate children. That decision stated that the paternity statute discriminated because it was a paternity suit and not a maternity. There was no provision for a maternity suit. And a consequent result, it was unconstitutional under the Fourteenth Amendment of the United States Constitution.
William H. Rehnquist: Do you have any guess as to why the case is pending undecided that they're waiting for this case?
Lola L. Bonner: I would concur with my opposing counsel.
William H. Rehnquist: I suppose we could find out.
Lola L. Bonner: I'm sure that this Court could.
William H. Rehnquist: Did you -- did you say that the -- was the judgment in the Fort Worth case based on the federal constitution?
Lola L. Bonner: Yes.
William H. Rehnquist: Only?
Lola L. Bonner: It -- it mentioned in the Texas Constitution but not in -- as it related to the discrimination because it was a paternity suit and not a maternity suit. That went off on the Fourteenth Amendment.
William H. Rehnquist: Is there a great demand from maternity -- maternity suits?
Lola L. Bonner: Not to my knowledge.
Warren E. Burger: I think your time has expired. Thank you, counsel. The case is submitted. We'll hear the arguments next in foremost --


Earl Warren: Number 72, United States of America, Appellant, versus George Donald Shirey, Mr. Anderson.
Malcolm Anderson: Mr. Chief Justice, may it please the Court. This is an appeal from the decision of the District Court for the Middle District of Pennsylvania in dismissing an information. Since it seems to involve the construction of Section 214 of Title 18, probable jurisdiction was noted. Brief of this or the record is of course extremely brief. The information is one paragraph long. It read as follows On or about of the 5th of December 1953, in the City of York, Pennsylvania, in the Middle District of Pennsylvania and in the jurisdiction of the Court, in violation of Section 213, the defendant did knowingly, willfully and unlawfully offered or promised to Congressman Stauffer to donate to the Republican Party the sum of $1000 a year in consideration of the use of influence to procure the Office of Postmaster of York, Pennsylvania. The defendant, through his counsel, this information was filed on July of 1954 and the defendant, through his counsel, immediately filed a motion to dismiss on the grounds that this information did not state a cause or crime within Section 214. The matter was briefed and argued in September of 1954 and then March 17, 1958. The decision was handed down and the order dismissing the information. The court below looked at the information, looked back at the statute and said that the offer of $1000, to donate $1000 to the Republican Party made the Republican Party the offeree, and that the language of Section 214 read, “Whoever…offers or promises money or a thing of value, to any person, firm or corporation in consideration use of influence is guilty of misdemeanor,” pointed out that the Republican Party is not a firm, person or corporation and therefore, not within -- not proscribed by the Act. The Judge went on to point out that Section 215, which he called the counterpart, was originally enacted in 1926 with Section 214, as two sections of one Act. And that this other section specifically provides for political contribution says, “Whoever here in the form of political contribution or for personal emolument solicits money or a thing of value shall be guilty of misdemeanor.” He points that this indicates that it was not intended to proscribe the use of an offer of a political contribution in Section 214. We think that first, the lower court misconceived the issue but in any event, that the Republican Party is a person within the broad meaning of that term in criminal law. To go to the second point first, and I would rather but the case did not go off on that because it doesn't sit very well. It is not an easy feeling but nevertheless, it is a supportable one that the Republican Party is a person within Section 1 of Title 1, which was enacted one year prior to the reenactment of Section 214, includes, except where the context indicates otherwise a -- an association of persons. This matter was recently before this Court in the matter of a partnership as was there it could be an entity that could be prosecuted under criminal statute, which began with the words “Whoever” and it was determined in the A & P Trucking Company case decided last month, that such a broad interpretation, the word “Whoever” came within the criminal proscription of that particular Act. And we believe that a Republican Party is a person within the broad meaning of the word “Person” in Section 1 of Title 1 of the United States Code, but this is a stiff and stilted interpretation. The indictment or the information says that the offer or promise was to Congressman Stauffer, and we think that the real issue is whether he was offered anything of value. And the defendant, the defense counsel on page 14 of this brief says, “This is the basic policy of our brief, at least we agree this is the main point on which the issue should be determined that here is an offer to a party, to support this party if he gets a public office or inconsideration of the Congressman using his efforts to get this man a political appointed office.” The first point, first hurl I think, we have to get over is the fact that this is money, a $1000, it is money and we're coming in under the phrase, “Thing of value”. The defendant in his brief points out that the money or thing of value is in the disjuncture and that one cannot be the other. Although later in -- on page 14 on the top page 15, in order to limit the broad scope of the word or phrase, “Thing of value,” he says that the words “Money” modify color and give meaning to the phrase, “Thing of value.”
Charles E. Whittaker: Well, perhaps found (Inaudible)
Malcolm Anderson: Yes, I believe that money to another person can be a thing of value to the first person. I think perhaps if we change the illustration just enough that this offer was a $1000 a year to his law partner, we can see that it would not be the equivalent of a $1000 a year at the end but it would be something very definitely a thing of value.
Charles E. Whittaker: (Inaudible)
Malcolm Anderson: In -- in form, it was money, but the --
Charles E. Whittaker: (Inaudible)
Malcolm Anderson: That's right. That is all it's charging.
Charles E. Whittaker: (Inaudible)
Malcolm Anderson: Yes.
Charles E. Whittaker: (Inaudible)
Malcolm Anderson: That's right. But money, I believe, to a third person, can be a thing of value to the actual recipient of the promise.
Earl Warren: Mr. Anderson, I think I'm bothered too the same way as Justice Whittaker. Why is it necessary for you to come in under the phrase, “Thing of value” rather than money if he promise a $1000 to Congressman Stauffer?
Malcolm Anderson: Well, of course, he didn't promise that. Our difficulty is he immediately did not promise a $1000 to Congressman Stauffer. It would be a far more direct case if he had, he did not?
Felix Frankfurter: He promised it to him as a conduct, didn't he?
Earl Warren: That's what I understood.
Malcolm Anderson: This -- we believe, the benefit, would come to Congressman Stauffer but not maybe perhaps a full $1000 worth. It is a thing of value claim, the --
Earl Warren: Was it the $1000 to have been paid through Congressman Stauffer?
Malcolm Anderson: The information is silent on that and I would believe that it would be paid to the Republican Party, and not through Congressman Stauffer.
Earl Warren: Then because it was not -- because Congressman Stauffer was not to be the conduct for the money.
Malcolm Anderson: That is --
Earl Warren: That's the reason you say that he was promised a thing of value rather than the money?
Malcolm Anderson: That is right, sir.
Earl Warren: Yes, I see.
Felix Frankfurter: But the conduct of the promise said money.
Malcolm Anderson: Well --
Felix Frankfurter: He promised to him that he would give $1000 to some X.
Malcolm Anderson: We assume that the Congressman would take credit for having acquired it if he accepted the offer.
Felix Frankfurter: But -- but the promise run through the Congressman?
Malcolm Anderson: Yes, sir. That is our position. That the promise ran through the Congressman that it was not money to him, it was a thing of value to him, it was money to the party.
Felix Frankfurter: Well, whoever paid for policies, the statute if it -- if the statute merely -- well, whoever pays, any person for money.
Malcolm Anderson: Yes, sir.
Felix Frankfurter: I don't think then it would be sustainable, would it?
Malcolm Anderson: No. The word “Pay” obviously has a connotation --
Felix Frankfurter: Yes, but (Voice Overlap) --
Malcolm Anderson: -- of turning over money rather than a thing of value, yes, sir.
Hugo L. Black: Who has got -- perform the obligation, the Congressman?
Malcolm Anderson: The -- the payment would be by the defendant. The Congressman would be required to use his influence. Yes, sir. That is the way we read the information, we feel it is only reasonable,
Hugo L. Black: The party was not to use its influence on the information but the Congressman.
Malcolm Anderson: No, sir. That would raise a -- a far more difficult question which I would like to avoid. Would it be a crime if it was offered solely to the party to use its influence?
Felix Frankfurter: Vis-à-vis Shirey, this would be the appellee, the Congressman of the Republican Party, wasn't it?
Malcolm Anderson: Yes, sir.
Charles E. Whittaker: As I understand (Inaudible)
Malcolm Anderson: Yes, sir.
Charles E. Whittaker: (Inaudible)
Malcolm Anderson: Yes, sir. This is the way we would like the issue to go as contrary to the proposition that the Republican Party is a person, which as I said I feel is a rather stiff and stilted the interpretation of the language. The “thing of value” phrase is much used in the bribery chapter of Title 18, in 15 Sections of the 23, in the -- in Chapter XI of the Penal Code, the words “thing of value” are used to this bribery and graft chapters. And in agents, it is modified or there are other words used in conjunction with “thing of value” and in several instances where we have the offer of a bribe being prohibited, we have one set of words used and where we have the solicitation of a bribe, we another set of words used in connection with “thing of value”. “Thing of value” has had just about as broad interpretation in the law, as such general words could have, and this is one of the things which is pointed out by the defense counsel in his brief that almost anything then could be challenged in the -- in this area as a thing of value and offer to do a good job as Postmaster and so on. This, I think, is something that is inherent though in the criminal law procedure.
Felix Frankfurter: I think “thing of value” gets a color for money namely, that it has a monetary content?
Malcolm Anderson: Well, I think it probably it does, but I would hesitate to be bound tightly to that. In -- in the words and phrases, as I read through, yesterday, I found that the “thing of value” is included a -- a fur cape, a cat, a dog. The -- and such the ephemeral things as the endorsement on a check or even in one instance the use of a machine gun and a car to make a getaway.
Felix Frankfurter: I suggest that the phrase of “thing of value” is standing by itself may have a latitude of meaning that it may not add which is joined through though it is injunctive with money?
Malcolm Anderson: Yes, sir. I -- I have no objection in this instance to its being joined with money. I think perhaps that I ought not to be restricted too much because I find that the conscience and judgment of the prosecutors in the control of the courts and the wisdom of the juries will keep us from attempting to extend the concept of the “thing of value” too far in -- in prosecuting a judgment or opinion. And I think this is something that is true also of immoral conduct as in the manner. Yes, sir?
Charles E. Whittaker: (Inaudible)
Malcolm Anderson: I think that's inherent in the language.
Earl Warren: Perhaps, you can finish the answer after lunch.