Warren E. Burger: We will hear arguments now in 75-5952, Trimble v. Gordon. Mr. Weill, you may proceed.
James D. Weill: Mr. Chief Justice and may it please the Court. This case is on appeal from the Illinois Supreme Court and concerns the question that whether the Illinois intestate succession statute, which excludes illegitimate children from inheritance from their fathers but grants such inheritance rights to all legitimate children, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Deta Mona Trimble was born in 1970. Her parents were not married. Deta and her parents lived together and she was supported by her father pursuant to an Illinois paternity adjudication and support order. In 1974, when Deta Trimble was three-and-a-half years old, her father, Sherman Gordon, died at the age of 28, the victim of a homicide. He left no will and no surviving spouse. Deta is his only child. Under the Illinois Probate Act, legitimate children inherit from either parent in intestacy, and the illegitimate child, on the other hand, will inherit from his or her mother but is not the heir of an intestate father. Pursuant to this statute, the Probate Court entered an order declaring Sherman Gordon’s heirs to be his parents’ siblings and a half-brother. The court rejected the challenge to the constitutionality of the statute. The Illinois Supreme Court granted leave to appeal directly to the Trimbles and the Illinois Supreme Court then affirmed the Probate Court decision. There was no written opinion since the Court held that its decision four months earlier in the case of In re Estate of Karas was dispositive. In addition, the fully brief in their own case the Trimbles had filed an amicus curiae brief in the Karas case.
Harry A. Blackmun: Mr. Weill, was there any impediment to Deta’s parents’ marrying?
James D. Weill: No, there was none that we know of.
Harry A. Blackmun: There was a paternity suit here, wasn’t there?
James D. Weill: Yes, there was a paternity adjudication.
Harry A. Blackmun: What prompted that? Was that a friendly suit or an unfriendly one?
James D. Weill: At some point, Ms. Trimble may have been on public aid and it would have been a public aid suit. The Public Aid Department is required under federal law wherever anybody is on AFDC to establish paternity and bring a suit for support.
Harry A. Blackmun: Would this law suit get down to that as a litigation between the child and the other blood relatives of the decedent, correct?
James D. Weill: That is correct, but it is a question of whether a state which gives inheritance rights to children generally can exclude illegitimate --
Harry A. Blackmun: I know what question it; this is what it amounts to, isn’t it?
James D. Weill: Yes, that is correct. This Court has ruled in recent years in several cases that legitimate children and illegitimate children whose paternity has been established are to be considered to be identically situated. The statute at issue here discriminates because it denies to illegitimate children the state-created inheritance right which is accorded to children generally. This discrimination is unconstitutional under any standard of review since it does not bear the remotest rationale relationship to any legitimate state interest. There have been four suggestions made by the Illinois Supreme Court or by appellees here --
Harry A. Blackmun: I take it, Mr. Weill, from your comment just now you concede that the rationality standard applies?
James D. Weill: No, we do not concede that, we still believe that strict scrutiny or some form of heightened scrutiny is potentially applicable. We believe that because illegitimate children bear all or most of the traditional indicia of suspectness, they have been historically discriminated against their discrete and insular minority that some kind of heightened scrutiny is applicable.
Harry A. Blackmun: I thought that you said that under any standard of rationality?
James D. Weill: We said under any standard of equal protection review, the statute must fall. The statute, because there is no rationale basis whatsoever, the Court need not reach the question of a higher level of scrutiny.
Speaker: How do you reconcile your answer to Justice Blackmun’s question with Mathews v. Lucas that we decided last term?
James D. Weill: Well, the Lucas case did not concern a total exclusion of illegitimate children. The Lucas case found the statute to be very “carefully tuned” to the needs and considerations of including illegitimate children. It is not a total exclusion like this is.
Speaker: But it differentiated legitimate from illegitimate children, didn’t it?
James D. Weill: Yes, only marginally and only when there was no significant evidence of pre-existing support or paternity adjudication. Where however the statute just blanketly excludes illegitimate children, we believe that some form of heightened scrutiny is appropriate and Lucas does not --
Speaker: Burden is naked exclusion here, is there, Mr. Weill?
James D. Weill: Yes, to the degree that illegitimate children cannot inherit from their fathers in intestacy, the State has created a total exclusion of them.
Speaker: Well, isn’t that something -- what if the parents marry?
James D. Weill: If the parents marry and the father acknowledges the child, then the child is legitimate.
Speaker: What if they do not marry and he acknowledges?
James D. Weill: If he acknowledges the child, or if the child’s paternity is adjudicated, the child remains illegitimate and is not eligible to inherit under the Illinois Intestacy Law.
Warren E. Burger: You said there is no rational basis whatever for this. What was the historical basis long thought to be the justification?
James D. Weill: These intestacy statutes and the exclusion of illegitimate children come out of Medieval England. At that time in a --
Warren E. Burger: Well they have regarded as valid somewhat later than Medieval England, have they not?
James D. Weill: That is correct, but the origin of them relates to an essentially land based society. The Illinois Supreme Court suggested that its main concern was the proof problem here, and that was the main --
Warren E. Burger: In other words, there is no problem with proving mother.
James D. Weill: That is correct, but it is our contention that the State cannot --
Warren E. Burger: But it does not open itself to a fraud, does it?
James D. Weill: That is correct. The mother’s maternity is relatively easy to establish. But the State here has ignored all concerns of whether or not paternity has been established of the father for the child. The Illinois Supreme Court while talks about the proof problem, it is hypothesizing various abstract situations. It is not dealing with the reality of this situation or analogous situations where paternity has been adjudicated by its own court system. In that case, there is no more doubt about paternity than there is for any other child. They are not -- the Illinois Supreme Court also ignored situations where the child’s paternity has been acknowledged. There is no proof problem in this case. There is no question as to the paternity. So our contention to this is supported by all of this Court’s decisions on the illegitimacy area, including the Lucas decision that the State cannot exclude all illegitimate children based on proof problems, that the State has to create some form of nexus between what it considers to be the proof problem and the scope and quality of the exclusion, and this blanket exclusion does not do that.
Warren E. Burger: I understood your response to Mr. Justice Blackmun’s question to at least intimate that this was not an unfriendly adversary paternity suit. Did I get that correctly?
James D. Weill: Well, I do not really know, the record does not show that. It was, I believe, brought by the Public Aid Department. The father, Sherman Gordon, did admit during the course of that trial; he did admit his paternity.
Warren E. Burger: And that was, you said, to establish eligibility for a particular welfare?
James D. Weill: No, that would not establish the eligibility. The eligibility -- Ms. Trimble and the child would already have been receiving AFDC.
Warren E. Burger: But without it, was there a difference?
James D. Weill: No.
Warren E. Burger: Well, then I did misunderstand you. I had the impression from your response that it was related to some degree of eligibility for benefits.
James D. Weill: No, there would have been no incentive for collusion at the trial of any kind about can it be --
Speaker: What you are talking about is a recent federal statute, as I understand it.
James D. Weill: That is right, but there were --
Speaker: That requires a recipient.
James D. Weill: A pre-existing recipient.
Speaker: I am saying, this is if a husband deserts a marriage situation that husband deserts, there is now an obligation to seek support, isn’t it?
James D. Weill: That is correct.
Speaker: And that is what this is.
James D. Weill: Well, no, because they were not married. There is an additional obligation --
Speaker: Oh they were not, but I mean that is the same statute.
James D. Weill: That is right. The statute, in addition to seeking to acquire support from fathers whether or not there has been a marriage, also seeks to establish the paternity of illegitimate children under this federal mechanism.
Speaker: Also, Federal Court sees to it, doesn’t it?
James D. Weill: No, only in the last resort to collect the support, but it is essentially a State Court proceeding. It uses the normal state paternity proceeding but now that portion of the State Court is 75% federally funded.
Speaker: These parents were living together, weren’t they?
James D. Weill: Yes, they were. The second rationale offered by the Illinois Supreme Court is the so-called presumed intent argument to claim that the statutory disposition is in the Court with the presumed intent of most decedents. This argument fails in the first instance because the intestacy statute is a State action, and the State cannot base its statutory scheme on a presumption of invidious private intent nor can the State itself invidiously discriminate.
Speaker: What do you mean “invidious private intent”?
James D. Weill: Well, the State is assuming here that fathers of illegitimate children want to exclude their illegitimate children, they have no intent to grant inheritance rights or otherwise have any dealings with their illegitimate children. Whereas they do, the State makes the exact opposite assumption for legitimate children. In cases like Stanley, this Court has found that, that assumption is inaccurate that the State is building its view of child-father relationships on totally outdated stereotypes.
Speaker: Well, it may be inaccurate, but I think you used the word “invidious”. Is there anything wrong if a father in fact decides to make that choice as between illegitimate and legitimate offspring?
James D. Weill: If the statute included illegitimate children and the father wanted to, by will, disinherit his legitimate children or his illegitimate children, he can do that by will. The State cannot do that for him and the State cannot itself assume, across the board of its population, an intent to discriminate against illegitimate children, which this Court has said in eight cases, is invidious, that it is basically invidious and irrational in the first instance to discriminate against illegitimate children.
Speaker: In what cases did we use the word “invidious”?
James D. Weill: I believe I am not sure, but the line of eight cases striking down such discrimination certainly establishes that the illegitimacy discrimination will be closely looked at, and that it is to a degree suspicious to exclude all illegitimate children from any statutory scheme.
Warren E. Burger: But it is always within the power of the father to remedy that, isn’t it?
James D. Weill: That is correct. That father’s --
Warren E. Burger: It is accorded by marriage or by a will or by a gift?
James D. Weill: It is not always within the power of the father to marry. He may be already married or the mother may be already married. He could conceivably write a will but as we point out in the briefs very, very few Americans write wills, and particularly those of the class and not only of the decedent father here but of, to a large degree, the fathers of illegitimate children. Their illegitimacy tends to occur in lower and moderate income units where there is not a lot of property; there is not a great incentive to write a will. Not writing a will may be because there is no access to lawyers or whatever. So the argument that he could have written a will in this case, a 28 year old man who died from homicide, does not in the end justify the State’s own invidious action here. The State cannot discriminate just because it allows some people to opt out of that discrimination. In addition, returning with  the presumed intent for a second, there is a poll in Illinois that is just reported in Mr. Krauss’s (ph) Book which shows that this just does not reflect, the statute does not reflect the desires of Illinois people, including any particular sub-group, sex or race. The poll has broken that.
Warren E. Burger: Is that a separate basis for attack on the statute that you take a poll and what the legislature has enacted does not reflect the will of the people?
James D. Weill: No, but in this case it helps to explain why the Illinois Supreme Court did not rely on the presumed intent argument itself. The Illinois Supreme Court never mentioned that it thought the statute was in accord with the desires of these fathers. All the Illinois Supreme Court mentioned essentially was the proof problem and the last point, which is, Illinois said they had an interest in promoting legitimate family relationships. So to that degree, the poll explains why that was not reached. On the legitimate family relationship point, this Court has said in several cases that penalizing illegitimate children for the sins of their parents is neither a just nor an effectual way to accomplish the State’s goals of encouraging legitimacy and encouraging marriage.
Potter Stewart: Doesn’t the Court have to presume that the legislation enacted by a state legislature represents the public policy of that state? I do not know of what importance it is but --
James D. Weill: I am not sure I understand the question. That it reflects the policy here protecting the strengthening of family relations?
Potter Stewart: You say that the law of Illinois is contrary to the wishes of the people of Illinois. It does not reflect the public policy espoused by the majority of people of Illinois. As I say, I do not really know what materiality or relevance that has, but it would seem to me that if it has and whenever it had became material, then the Court would have to presume that a law enacted by a state legislature does in fact represent the policy views of the people of that state until a law is amended.
James D. Weill: That is generally correct, I was only making the point here because the Illinois Supreme Court has not in this instance said that this law reflects the general intent of the people of Illinois. But that was not a basis. Now that presumption certainly can be made even if the Illinois Supreme Court did not make it. But again, that does not, I go back, that does not justify the State’s invidiously discriminatory action.
Harry A. Blackmun: Does that concept need the blessing of the highest court of the state, or does it flow from the actions of the legislature as Justice Stewart has suggested?
James D. Weill: It does flow from -- there is a presumption that the legislation represents what the people want, but I am suggesting --
Potter Stewart: It just does, I mean that is the best evidence of what the people want is what their legislatures enact, is it not?
James D. Weill: That is correct, but we are talking about it in a different context here, in an abnormal context where the presumed intent argument does not relate to what the people as a whole want. It is an argument about what decedents and particularly want decedents in a particular group, and the Illinois Court refused to find or did not find that that was happening here. It is not an presumption as to the general population. I would like to turn very briefly to the Labine case which this Court decided a few years ago, it is our position that Labine is substantially distinguishable on several grounds. The first case, Labine is significantly inclusive of illegitimate children in a way that the Illinois statute is not. Labine has a mechanism for support of minor illegitimate children. Labine let illegitimate children inherit before the state has cheated to the State. Labine also involved a right to inherit where there would be unilateral acknowledgement by the father and a unilateral expression of an intent to legitimate. In addition, Labine involved --
John Paul Stevens: Just doing a little faster Mr. Weill. The third, it was that in Labine they allowed inheritance when there was a unilateral expression by the father. That was inherited if there was a will, wasn’t it?
James D. Weill: No.
John Paul Stevens: Intestate succession?
James D. Weill: Yes, the second to the last paragraph of the majority opinion in Labine discusses the Louisiana Supreme Court decision in the Miller case in which the unilateral acknowledgement and statement of an intent to legitimate in that acknowledgement by the father entitled the child to intestate succession rights.
John Paul Stevens: A statement of intent to legitimate, which we do not have here.
James D. Weill: That is right, but Louisiana had a mechanism for that. Illinois has created no mechanism. Illinois’s mechanism is a paternity adjudication, but then Illinois has turned around and ignored that in its intestacy scheme.
John Paul Stevens: I see -- and the first distinction you gave was that there they provided for support, but here this support -- I do not think that distinction --
James D. Weill: They provided for the support for the minor child from the intestate estate of the fathers, from the heirs of the father. The child had a right to so-called alimony or support from the estate, not support while the father was still alive. Since the Gomez decision, that has been true in all states.
Thurgood Marshall: Of course, basic to all of that is Louisiana is based on the Pollyanna Code and the rest of the states are based on time alone.
James D. Weill: That is right. Louisiana had a very unusual scheme and it is our position that that is so distinguishable in a variety of ways, others of which are mentioned in the brief. I would like to reserve the remainder of my time for rebuttal.
Warren E. Burger: Mr. Beermann?
Miles N. Beermann: Mr. Chief Justice, and may it please the Court. There is no decision of this Court that has held that illegitimates are a suspect class. Therefore, we submit that the proper test to determine whether or not this particular statute violates the Equal Protection Clause is not the scrutiny test that counsel would ask us to adhere to, or even a higher scrutiny, but the reasonable basis test and whether or not this statute bears some rational relationship to a legitimate State purpose. I think in one of the questions, counsel was asked about that and if I may, I think that the State purposes that this statute serves are: (1) to encourage family relationships; (2) to regulate property of decedents who die intestate -- property that is located within the borders of the State; (3) the stability of land titles; and (4) the prompt and definitive determination of the valid ownership of property left by decedents. Also, I would say along with that is the prompt adjudication of probate estates. Another one of the purposes would be to deter spurious claims, which I will get into.
John Paul Stevens: Mr. Beermann, we are not really talking about very much of the estate, are we?
Miles N. Beermann: No, Your Honors, as a matter of fact we are talking about $1500.
John Paul Stevens: And your clients concede there -- or maybe it does not make any difference anyway. Do they have a blood relationship to this little girl?
Miles N. Beermann: Well, my client -- I only get one client, Your Honor, and that is the mother of the decedent, so that she would be the blood paternal grandmother of the little girl.
John Paul Stevens: I suppose you are not defending the Illinois statute as a matter of policy if you were a legislator, when it says that the paternity suit or an acknowledgement is not enough, there has to be marriage in addition.
Miles N. Beermann: Well, it stills set up a mechanism whereby the child can be recognized. Insofar as Labine, as counsel alluded to, said that when the father in Labine acknowledged the child, he could have also made another statement along with that acknowledgement, allowing the child to inherit, but he did not do that. In this case, the decedent did not marry the mother of the child and did not acknowledge the child. Now technically, the child was acknowledged for him in the paternity proceedings and it was an order that issued from the Circuit Court of Cook County deciding that he was the father and ordering him to pay support for the child. Getting back to the state purposes, they were recognized as being valid not only in Labine but in this Court’s opinion in Weber v. Aetna. Even though the Weber decision went the other way because it was discrimination, as I recall it, among illegitimates. It is clear that the power to make such rules, to bear that relationship to the state purposes should be left to the state. Getting to the statutory will theory, I believe that the statutory will theory is a viable and valid theory. I think that the laws on intestacy are an attempt by the State to determine to whom the decedent would want his property distributed if he were to die unexpectedly or without making a will. Now, the fact, as counsel alludes to that most people do not make wills, I think proves that people are satisfied with the legislative action in this area. For example, in Illinois, if there is no will and there is a surviving spouse and no children, the surviving souse I believe receives everything. If there are children, the surviving spouse receives one third and the children receive two thirds. In this particular case, the decedent by making a will could have left everything to his child. Now in Illinois, a surviving spouse if she is left out of the will can renounce the will. The children have no right to renounce the will and there is no right in a child in Illinois to inherit from its father. That does not mean whether you are legitimate or illegitimate. You would give away to your mother, so to speak. She has the right to renounce the will and children do not have a right to renounce the will.
Speaker: Maybe an after-born child has some rights.
Miles N. Beermann: An after-born child I think, if I recall the statute correctly, is an automatic revocation of the will, Your Honor, and the after-born child takes as if the decedents died intestate. So if the decedent had cut out of his children that were born before the after-born child, the after-born could take as if there was no will, even if the other children were cut out.
John Paul Stevens: It is not quite right to say that the children have no rights because if there is no will at all and the parent dies intestate, there are right.
Miles N. Beermann: I did not mean to imply that, Justice Stevens. You are 100% correct. What I am stating is that the children in Illinois have no inherent right to inherit from their father, and yes, if the father dies intestate, legitimate children would inherit two-thirds or all of his estate as the case may be.
John Paul Stevens: With respect to your argument about the problem of probate, certainty of title in property, ownership and all the rest, how does that apply when you have got an adjudication, as you do in this case, of paternity? Why is that any harder to establish than the normal legitimate father?
Miles N. Beermann: I do not know that it is not except that you may -- I suppose what the legislature had in mind when they added the added criteria or the added condition of having the parents to marry would be so that the illegitimate children would not take to the exclusion of legitimate children. I think one of the main problems here is the philosophical problem of whether or not, the fact that a child has been decreed to be the child of the decedent, if you will, means that, that child is the natural object of the decedent’s bounty. The child is the victim of an illicit relationship and I think that overwriting all of these concerns is the family relationship.
John Paul Stevens: That family argument has always puzzled me somewhat because it would seem to me that by saying to the father, if you have illegitimate children they cannot share in your estate. That is less of a deterrent than if you said to the father, if you have an illegitimate child, that child will share with your children. Why does one deter the misconduct more than the other?
Miles N. Beermann: I do not think it is -- I look at it from the opposite way. I think that by stating that -- what the legislature is trying to do, I think, and what the public policy of the State is, is to foster legitimate family relationships and not to foster illicit relationships by stating that if you die intestate, your illegitimate children will share in your estate. I am not sure if I am answering your question, but the -- I do not know if there is any answer. The point is that the father, if he wanted to, could make a will and leave all of his estate to any of his children, or to none of his children, as the case may be.
John Paul Stevens: Well, if you rely on the ability to make the will, of course that answers everything.
Miles N. Beermann: I really think it does. I do not think that there is anything mysterious about making a will.
John Paul Stevens: Then you guys suppose you can have a statute that said, blacks shall not inherit from whites because you presume whites would not want blacks to inherit their property, and always make a will to leave the property to whomever they want to. I mean what would be wrong with such a statute?
Miles N. Beermann: I do not think that there is any relationship to a legitimate state purpose. I cannot conceive of one.
John Paul Stevens: Well, a legitimate purpose would be that, presumably, if people had to take a poll, most people would assume that more whites would want their property to go to people of the same race than the people of another race. But isn’t that a realistic assumption, even if it might not be a very attractive one?
Miles N. Beermann: I could imagine under certain circumstances it could be realistic.
John Paul Stevens: But wouldn’t be -- what would be wrong with that? People could avoid that consequence by making a will too. How is that different from saying you cut out the illegitimate? Why could not you have this same kind of statute on racial grounds, in other words?
Miles N. Beermann: Well, because I do not think that this kind of a statute is something that the legislature -- I do not think they have the right to pass the statute. I think that statute would be clearly unconstitutional, denial of equal protection. Let us take -- we can carry the hypothesis a little further. If you have a white man married to a black woman then if he one that die, and he could not die intestate then because under your hypothetical situation, his money would not go to his children assuming that they would be deemed black. So that he would ask to make a will in order to leave the money to his children.
Thurgood Marshall: You started out saying that illegitimate children were not a suspect class.
Miles N. Beermann: I do not think they are, Your Honor.
Thurgood Marshall: Well, is that the answer to it all?
Miles N. Beermann: I think that is the answer to it. I think that there has been no decision --
Thurgood Marshall: Please do not forget it.
Miles N. Beermann: Sorry, your Honor, I won’t.
Warren E. Burger: Well another element was introduced in the hypothetical question as I understood it, the legitimacy is not suspect but a racial discriminatory statute would be quite suspect.
Miles N. Beermann: That is correct, and that is what would make the statute and Justice Stevens’ hypothetical clearly unconstitutional.
Warren E. Burger: Well, clearly suspect at this contextual --
Miles N. Beermann: At the least, at the least, and then I do not think that there could be any rational or reasonable purpose of the State in passing such a statute. The other things that I wanted to point out, and I think, Mr. Chief Justice, you have alluded to some of them, is that the decedent could change the so-called statutory will by a number of methods. He could execute a written will, he could create a joint tenancy, he could designate the beneficiary of a life insurance policy, he could create a trust, he could make a gift. There is a number of things he could do either under Illinois statute or by law, by federal law. He could have -- and as I have already stated, he could have left the entire estate to this child with exclusion of everyone.
Thurgood Marshall: You are talking about a man whose net worth is less than $1500 had all those options?
Miles N. Beermann: Theoretically, he had all those options.
Thurgood Marshall: Oh, theoretically.
Miles N. Beermann: I do not think there is any question about it. I do not know that we are talking in a limited fashion about Sherman Gordon, the decedent in this case.
Thurgood Marshall: Well, I am. (Inaudible)
Miles N. Beermann: In reality, Your Honor, I would say you are probably correct that Sherman Gordon, although he might have some life insurance. He might have had a life insurance policy from his job, and there are a number of things that he might have had. In today’s society most --
Thurgood Marshall: But you are talking about all this great legal advice he had that he could get. I wonder where could he get it from.
Miles N. Beermann: Well I think he could have gotten it at a number of places. In Chicago there are all types of --
Thurgood Marshall: Is there any reason that he ever thought of a will? A man with $1500?
Miles N. Beermann: Well…
Thurgood Marshall: How much do you charge for drawing the will of a driver, about $1500?
Miles N. Beermann: Well, a will of this type would probably cost about $25 to $50.
Thurgood Marshall: Really! Well, how many do you get like that?
Miles N. Beermann: Well, I suppose --
Thurgood Marshall: I mean, why not be realistic. A man with that much income, about to get his head blown off. I mean he is not the type of person who gets in all these legal niceties.
Miles N. Beermann: I do not believe, Your Honor though that we can set up a standard based on this one particular man. Knowing we are talking about this one particular man, I know that your question alludes to him, and you have stated quite succinctly to me that you are talking about him. But if we start going on a case-to-case method of who is the man in this case, could he have made a will, and if counsel was right and all of those people were in that position, I just do not agree with that. There are legal poverty offices all over the City of Chicago. Counsel is a member of one of them. Probably, Sherman Gordon could have made a will and not been charged any fee at all by going into Counsel’s office. So that I think that, that theory --
Thurgood Marshall: It was not (Inaudible)
Miles N. Beermann: 1974, I believe.
Thurgood Marshall: Can all the (Inaudible)?
Miles N. Beermann: Oh, yes. I think we had even more of them than we do now, Your Honor.
Warren E. Burger: I suppose a $25 or $50 will would not be a burden on the legal aid, if they are willing to come all the way to Washington.
Miles N. Beermann: Mr. Chief Justice, I think that it is like about a half a paragraph of a will. All he had to do was start out with a normal opening paragraph and state that he leaves everything that he owns to his daughter, and name her, and have three witnesses and that would have been the end of it. He could have probably gotten that on half a page. So, maybe $25 is too much. One of the --
Warren E. Burger: Of course, this case should be resolved whether it was $1,500, $15,000 or a-million-and-a-half. The principles are the same, are they not?
Miles N. Beermann: I am perfect agreeing with that. That is the whole point, I am sure that if the Court was convinced that we were just talking about this one case, and it was only $1,500 involved, and that whatever the Court did in this case did not transcend these particular facts, that we would not be here arguing the case. Another recognized purpose of the statute is the prevention of spurious claims. The Court has recognized that purpose in many of its decisions, most notably in the Jimenez case decided in 1974. The Illinois Supreme Court in the Karas case alluded to the grandfather type example where a grandfather dies and he had one child, a son, who pre-deceased him by let us say 15 or 20 years. The grandmother, the wife of the present decedent, is left surviving and she would be entitled to his entire estate by the laws of intestacy. Now, some person comes along claiming to be the illegitimate child of the son who has been dead for 20 years and there is really no way to disprove the paternity. On the other hand, the child of course has a tough time proving it but it puts this widow of the grandfather in an awfully tough position.
Speaker: I suppose you do not know why the Karas case did not come here. That was a much larger estate.
Miles N. Beermann: Well, it’s not only that, there were two cases there Your Honor, and they both stopped there at the Illinois Supreme Court. I am sorry but I do not know why they did not come here.
Thurgood Marshall: It is our understanding you are talking about the intestate law of Illinois.
Miles N. Beermann: Yes Your Honor.
Thurgood Marshall: And the purpose is, as I understand, to take care of estates where there is no will.
Miles N. Beermann: That is correct Your Honor.
Thurgood Marshall: Well, how is it that defense do it that you can make a will to get around it?
Miles N. Beermann: Well, because we are talking about the narrow issue Your Honor. The laws of intestacy take up two or three pages in the Illinois statutes. The thing that we are talking about takes up about two sentences, and the theory being that if you accept the theory of a statutory will, that the man who dies intestate is presumed to know the law, and is presumed to adopt the laws of intestacy as his so-called statutory will, then he knows he has got an illegitimate child and the illegitimate child cannot recover. He knows, for example, as Sherman Gordon can be presumed to know in this case that if he had a mother and some brothers -- he had a mother and father and some brothers and sisters as I recall -- the mother and father and brothers and sisters would share equally. Now he further knows that by writing a will, he could have disinherited all of those people and left his entire estate to the little girl.
Thurgood Marshall: So that it is an adequate defense to any unconstitutionality of the state law the fact that a will could have corrected it.
Miles N. Beermann: I am not accepting the theory that the state law is unconstitutional.
Thurgood Marshall: It is -- This provision can be corrected by a will. That is your position?
Miles N. Beermann: Yes, sir.
Thurgood Marshall: And that is the reason that it is constitutional?
Miles N. Beermann: No, that is one of the reasons.
Thurgood Marshall: But is it constitutional or not?
Miles N. Beermann: Yes, I believe it is constitutional.
Thurgood Marshall: But it can be corrected by a will.
Miles N. Beermann: The situation can be changed by a will. I do not accept the fact that there is anything to correct. That is my point.
John Paul Stevens: Mr. Beermann, the claim, as I understand it, is that you have thousands and thousands and thousands of people who die intestate. All of them could have made a will but you have a large portion of the population that die intestate. And that the children of those intestate decedents are of two kinds: some are legitimate and some are illegitimate. Of course all men could have made a will and left his property as he wanted to. But looking at it solely from the point of view of the surviving child, what is the justification in terms of the child for treating the illegitimate differently from the illegitimate?
Miles N. Beermann: Well --
Potter Stewart: First, one justification you gave was that you want to prevent spurious claims, but does that apply when there is a judicial determination that there is a relationship here? That is one. Look at it from the point of view of the child. How does your idea about making a will have any merit?
Miles N. Beermann: Well, for one thing, the fact that the child might be left something, from the child’s standpoint it certainly will not legitimate the child. I think that from the child’s standpoint, it probably does not help, except it does not legitimate him by becoming an heir of his father, and by the same token, I think that you were then getting into the realm of where do you stop. I mean do you then pass a law that says that the illegitimate child has to recover because --
John Paul Stevens: The claim is that they should be treated the same as a legitimate child is treated. There is no claim here that they would take a preference to a widow or anything like that.
Miles N. Beermann: Society does not treat them that way in almost every respect. Unfortunately that is the case and I think that the Illinois Legislature has recognized that and I think that the Illinois Legislature has announced the public policy of the State, that they will not be treated the same because --
John Paul Stevens: Because over the years society has treated illegitimates as a less desirable class of people, the legislature can continue to do so. That is your argument as I see it.
Miles N. Beermann: I do not think it is exactly that, Mr. Justice Stevens. I think it is because --
John Paul Stevens: A less worthy group of people.
Miles N. Beermann: No, I do not think they look at it from the standpoint of the illegitimates. I think they look at it from the standpoint of the parents, and that the parents -- the legislature in the State of Illinois, acting through its General Assembly, wants the parents to not be involved in illicit relationships, and so that they do everything that they can.
John Paul Stevens: What they say to the father is that if you are involved in an illicit relationship, you do not have to worry about your property going to the child of that illicit relationship.
Miles N. Beermann: Because that child might not be, or the legislature presumes that the people of the State do not intend that their child is the natural object of the intestate or the intestate man’s bounty.
John Paul Stevens: In other words, you say to the father you can do this and you do not have to worry about the consequences.
Miles N. Beermann: Well, I do not think that is exactly right because there are (voice overlap). Exactly, and which he was in this case, and he was --
John Paul Stevens: You do not have to worry about this particular consequence at least.
Miles N. Beermann: This particular consequence, correct. It is our contention --
Potter Stewart: The common laws, I remember having learned it many years ago, was that an illegitimate child was nobody’s child. He did not inherit from the mother or father, nullius filius. And so to the extent that Illinois does allow intestate inheritance from the mother has ameliorated the harshness of the common law rule.
Miles N. Beermann: That has been on the books for many years in Illinois, this particular rule. That is correct Your Honor. The other point we want to make on this issue is that it is our contention that this Court’s decision in Labine v. Vincent controls, and it especially controls because in this case and under the facts of this situation, the father here could have done more for this child than could the father in Labine. For example in Labine, the child must be acknowledged in order to take under the father’s will. That is one thing that we have not heard yet. You just could not make a will in Labine and leave your estate to the child under Louisiana law, which is just as Justice Marshall points out is entirely different from the other 49 states. Then even if the child is acknowledged and you make a will leaving him part of your estate, you can only leave him either one-fourth or one-third of the estate, and that is if there are no surviving legitimate children or their heirs. While in Illinois, Illinois has ameliorated the rule as you point out, Justice Stewart, a filius nullius, because if we made the rule he could leave the child everything. Also, apparently in Louisiana, acknowledgement is a condition precedent to the child’s right to claim support from the father. That is not true on Illinois, as is evident in this case because when a paternity suit is brought, the defendant does not have to plead guilty. He can put up a defense and if the court finds that he is guilty, then he never has to acknowledge the fact that he is the father. He is adjudicated the father and he is made to support the child. Also in Louisiana, an acknowledged child can inherit from the father intestate if the father has no heirs or collateral or linear, to the exclusion only of the State. Of course in Illinois, an illegitimate can never inherit intestate from the father. That is the main difference. The other striking point is that in Louisiana, legitimate children have a right of forced heirship in their father’s estate, whereas in Illinois, as I pointed out, legitimate children do not have that right. So that it is our contention that Labine would control even more in this case than it did on the facts of its own case. I would like to allude to the sex discrimination issue although counsel has not talked about it. We have serious doubt that it is even properly before the Court. I think we briefed all that. I just would like to point out one other thing that when the notice of appeal was originally filed in this case -- and I am sorry that this is not in my brief, but I hope that Your Honors will indulge me. When the notice of appeal was originally filed in this case, from the order of the Probate Court of county declaring the heirship, only the mother was named as an appellant in only a representative capacity. She was named as Jessie Trimble as the mother and next friend of the child, Deta Mona Trimble. So that we do not believe she is a proper appellant. Now the record got pretty muddied up because what happened after that was, when they made their motion under Illinois Supreme Court Rule 302(b) for a direct appeal to the Illinois Supreme Court, thus bypassing the Appellate Court, you do that in matters of importance that require proper termination. All of a sudden, she became an appellant and there is nothing in the record, nobody objected to it I have to admit that, but she suddenly became an appellant. Then she also became an appellant in a notice of appeal to this Court and in her brief amicus curiae in the Karas case, she as named as a party. But the fact is that under Illinois Supreme Court Rule 301, the notice of appeal is a jurisdictional stock and I do not think that anybody can waive it by not arguing it and I do not think anybody can cure it. So I do not really believe that she is a proper party in this Court.
Speaker: Is this a suggestion that we do not have jurisdiction over the appeal?
Miles N. Beermann: Oh no, it is of this issue, Your Honor. The sex discrimination issue, because our argument is that in the sex discrimination issue, it cannot really apply, not into the merits of it, it cannot really apply to the illegitimate because there is no discrimination based on the sex of the illegitimate. Male illegitimates and female illegitimates are treated the same way. But their argument is that the mother, a female person, is being discriminated against on the basis of her sex and treated differently than a male person, because the female person have to -- she does have the -- their theory is this: That she does not have the assistance of the fact that the illegitimate could inherit from the father and easing her burden of supporting the illegitimate. We do not agree with this contention. I think it is really getting far-fetched. But our point is we are not quite sure based on this record, although we did brief it on the merits that, that issue really is before the Court because of the jurisdiction.
Thurgood Marshall: How can we pass on the rules of the Supreme Court of Illinois? Is that not the best court to pass on there?
Miles N. Beermann: I would say you are correct Your Honor.
Thurgood Marshall: And you deliberately bypassed them.
Miles N. Beermann: No, I did not bypass, they bypassed.
Thurgood Marshall: But you did not raise it.
Miles N. Beermann: I was not in the case then Your Honor. I hate to give you that answer but let me tell you what happened.
Warren E. Burger: If it is jurisdictional, it does not make any difference whether you were in the case or not.
Miles N. Beermann: Well, that is my point. I want you to understand something because you just talked about it earlier. Because of the size of the estate, nobody was defending this case in the Illinois courts. It never was defended in the Illinois Supreme Court. There was oral argument in the Illinois Supreme Court. It was a unilateral argument. Only the appellants in this case argued in the Illinois Supreme Court. They had a very short argument and it is in the record that the Chief Justice cut short their argument on the basis that the case was controlled by the Karas opinion. I did not get into the case until it came to this Court. It is easy for me to say now, if I was in the case, I would have raised these points. The point is --
John Paul Stevens: But Mr. Beermann isn’t your point -- let me see if I state it, but I want to be sure I understand it correctly, that to the extent that you opponent claims a gender-based discrimination, the fact that she cannot inherit from her father but she might have been able to inherit from her mother. She may not make the argument that her mother could make. That is what you are saying?
Miles N. Beermann: That is correct.
John Paul Stevens: It may be that she has standing to make the argument anyway, but you are just saying she cannot make what ever argument her mother could make. So she had a standing question, really.
Miles N. Beermann: The way they are making the argument --
John Paul Stevens: She cannot argue the impact of the statute on her mother. That is what you are saying.
Miles N. Beermann: They are making the argument through the mouth of the mother and not her father.
John Paul Stevens: Yeah, I see. You are saying the mother is not a party in her own right, but it would not make any difference if we thought the child had a standing to assert this claim anyway.
Miles N. Beermann: That is right. Well, if the child has the standing to assert the claim, then of course it could be asserted because I make no claim that the child is an improper party.
Speaker: As the parties here, Deta is the illegitimate child.
Miles N. Beermann: That is correct Your Honor.
Speaker: Jessie is the mother, and Joseph Roosevelt Gordon is the mother’s father, is that it?
Miles N. Beermann: No, he is the father of the decedent.
Speaker: Father of the decedent.
Miles N. Beermann: The natural father of the decedent. I represent that the decedent’s mother, Ethel May King, the other people, the father and the brothers and sisters, have seen fit not to take part in these proceedings.
Speaker: But Joseph Gordon is one, a member of the class, another member of which you represent.
Miles N. Beermann: Right, that is correct. So that without belaboring the point, we still do not believe that the sex discrimination is properly before the Court and we also state that there is a necessary distinction here that was alluded to before in the other argument that there is a biological difference between the mothers and the fathers. And as counsel stated, maternity is almost never an issue, I cannot conceive of when it would ever be an issue unless you had a kidnapping of a child out of the hospital nursery. The mother is always present when the child is born. So our contention is that the mother is not being discriminated against and the child, of course, is not being discriminated against because of her sex, because male and female legitimates are treated the same. Thank you very much.
Warren E. Burger: Very well. Do you have anything further, Mr. Weill?
James D. Weill: Just one point, Your Honor. I believe the standing issues are fully treated in the briefs and I just would like to point out that most of the arguments that opposing counsel has made have been implicitly or explicitly rejected by this Court’s unanimous decision in Reed v. Reed. In Reed, a case involving the estate of less than $1000 by the way, this Court, where there was sex discrimination in the appointment of administrators in intestate estates, this Court rejected the constitutionality of that statute. Even though it recognized that it eased the Probate Court’s administrative burden or judicial burden, and even though most of those sexually discriminatory appointments could have been altered by a will of the decedent. The Reed case is structured very much the way this case is, and this Court unanimously rejected the same structure in a similar context. Sex, like illegitimacy, has not been treated as a suspect class by a majority of the Court, but also there is many of the same traditional indicia and we just call that to the Court’s attention. Thank you.
Speaker: Mr. Weill, are you familiar with the expression “Illegitimi non carborundum”?
James D. Weill: Yes.
Speaker: Do you think it has nay application to this case?
James D. Weill: No, I do not.
Speaker: I was going to ask you, your opponent argued rather forcefully that Labine is not as strong a case as in fact as this. Do you want to respond to that at all? I think it’s really critical.
James D. Weill: Well, I believe that this case is clearly stronger than Labine on the facts. First, there was an adjudication here of the father’s paternity for all purposes and Illinois has said that this is this father’s child or was this father’s child. Now the Illinois Supreme Court turns around and says, but there are proof problems. There just are no proof problems in this case at all. It is stronger than Labine in that sense. Secondly, the Labine scheme, as I mentioned, was inclusive of illegitimate children. This Court has consistently struck down total exclusions of illegitimate children from any statutory scheme in the last eight years. The two partial exceptions have been Labine and Lucas. In both of those cases, there were substantial benefits to the class of illegitimate children. Labine may not have been as carefully tuned as Lucas was, but it was significantly inclusive. Those are just the two major points I make.
Potter Stewart: I thought the point that your brother made was that in Louisiana, the father was not free to make a will to designate the illegitimate as a beneficiary without doing something further, and in Illinois by contrast, the father was solely free simply by naming him as a legatee in the will to make her one?
James D. Weill: On the facts of the case, the father in Labine and the sub-class of fathers in Labine were free to make wills because there were acknowledgements there.
Potter Stewart: They had to acknowledge and then make a will. They could not make a will and name the illegitimate children legatee unless they acknowledged.
James D. Weill: Right, but then --
Potter Stewart: In Illinois, by contrast, they are free to do so with or without acknowledgement. I think that is the point he made and you would agree with that?
James D. Weill: They are free to do in Illinois as a matter of fact, yes. Thank You.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Warren E. Burger: Mr. Burr, I think you may proceed whenever you're ready.
Richard H. Burr, III: Mr. Chief Justice and may it please the Court: The case of Alvin Ford is before you today on a record which raises grave questions about Mr. Ford's competence to be executed, notwithstanding the Governor's determination in Florida that Mr. Ford is competent. The record shows a gradual, unrelenting deterioration of Mr. Ford's mental health from late December 1981 to the present. The record shows that by 1982 Mr. Ford was diagnosed as suffering from paranoid schizophrenia by a psychiatrist familiar with his medical history. Yet, this psychiatrist's recommendation for therapy and medication was ignored by prison staff. The record further shows that by late 1983, when Mr. Ford's deterioration began to compromise his competence to be executed, he was examined by three psychiatrists appointed by the Governor of Florida and by a fourth psychiatrist at the request of defense counsel. Three of these psychiatrists agreed that Mr. Ford suffered from psychosis or paranoid schizophrenia. The record shows that, despite this substantial agreement on medical diagnosis, the Governor's psychiatrists disagreed with the defense psychiatrist concerning the legal consequences as to Mr. Ford's competency of his medical condition. Finally, the record shows that in determining Mr. Ford's competence to be executed, the Florida Governor held no hearing of any kind to sort out which of the conflicting psychiatric opinions was more reliable. Indeed, the record shows that the Governor may not have even considered the opinion and reasoning of the defense psychiatrist who found that Mr. Ford was incompetent to be executed. These deficiencies in the Governor's competency determination process created, we submit, a grave risk that the decision that Mr. Ford was competent was erroneous.
Warren E. Burger: What you're going at is to tell us that the Florida statute which prescribes the method for dealing with this problem is invalid, is that it? Or is it the way in which they applied the statute? Which is it?
Richard H. Burr, III: The statutory procedure, we submit, does not provide a sufficiently reliable process for the determination of competence.
Warren E. Burger: You think it must be an adversary process?
Richard H. Burr, III: Yes, Your Honor, I do.
Byron R. White: Well, what if all the psychiatrists had agreed?
Richard H. Burr, III: If all the psychiatrists had agreed that Mr. Ford was competent, I think there would be no issue. We would certainly agree--
Byron R. White: Well, I thought you were saying that this procedure, this provision, is invalid on its face.
Richard H. Burr, III: --Well, I think, Your Honor, there would have to be some threshold showing of incompetency, similar to a threshold showing of incompetency before trial, for example.
Byron R. White: Well, let's assume there is a threshold showing, but then all the psychiatrists agree.
Richard H. Burr, III: Well, if there is a threshold showing of incompetency, then whatever procedure follows that results in all expert opinion being unanimous, then the procedure would likely be at an end, because there'd be no issue to litigate.
Byron R. White: So it's just a question of the application of this procedure in any particular case that you're--
Richard H. Burr, III: Well, I think--
Byron R. White: --That triggers any kind of constitutional problem?
Richard H. Burr, III: --In a case where competency is seriously in question, this procedure we submit is inadequate.
William H. Rehnquist: Mr. Burr, this Court has never held that it's required that a defendant be found competent before he can be executed, has it?
Richard H. Burr, III: No, Your Honor.
William H. Rehnquist: You contend that it isn't just the Florida statute, though; that there's a requirement of the United States Constitution that says that one must be competent to be executed?
Richard H. Burr, III: That's right, we submit that there are two legs upon which this issue stands. One is certainly the state-created interest in being spared from execution when incompetent. The other is that as a matter of Eighth Amendment substantive law it is cruel and unusual to execute those who are incompetent at the time of execution.
William H. Rehnquist: Is it cruel and unusual to imprison someone who is incompetent?
Richard H. Burr, III: I think the question would have to be resolved on the basis of the nature of the punishment.
William H. Rehnquist: So it could be in some circumstances cruel and unusual to imprison someone who is incompetent?
Richard H. Burr, III: It could be, depending on the nature of the incompetency and the nature of the sentence.
William H. Rehnquist: And he would then have a right to be released from prison, I take it, if he could show he were incompetent?
Richard H. Burr, III: Well, I think that the alternative would not be release from prison. The sentence would still be there to be served, but the person would probably be treated in some mental health facility. It could be a forensic mental health facility.
William H. Rehnquist: Why is it cruel and unusual to execute someone who is incompetent?
Richard H. Burr, III: Your Honor, I think the answer requires a blending both of historical analysis and of modern day analysis. Historically, from as far back as we've been able to trace it, at least to the thirteenth century, the common law has flatly prohibited the execution of the incompetent.
William H. Rehnquist: But it never provided for any sort of a judicial hearing. Granted, there are statements in the commentaries, but they never suggest there was any court proceeding for a determination of competence.
Richard H. Burr, III: Well, that's certainly true. But as this Court's jurisprudence has developed in the last two or three decades, the question of procedure and right are two separate questions.
William H. Rehnquist: Well, not inexorably. Certainly Solesbee against Balkcom didn't treat it that way.
Richard H. Burr, III: Solesbee in my view treated the issue from the perspective of procedure. The Court asked, what is the way that this interest has been protected. The Court likened the protection of this interest to clemency, which was a wholly discretionary process in which various reasons for mercy could be submitted by a condemned person, and the Governor or other clemency authority said yes or no, depending wholly on that party's discretion. So from that perspective, the Court did I believe begin with the question of how is this enforced and get to the question of it's not an enforceable right protected by the due process clause.
Warren E. Burger: Do you think it violates any constitutional provision for a state legislature to vest in the Governor authority to act on the sentence and to set it aside?
Richard H. Burr, III: No, not per se. Certainly Governors are deemed appropriate and highly appropriate decision makers as to clemency questions. As to this question, which we submit is a rights question and not a discretionary mercy sort of question, the Governor may be an appropriate decision maker, depending in part on the source of the right. Be would probably not be an appropriate decision maker ultimately for an Eighth Amendment right. But for the state-created right, the Governor, assuming he acts with impartiality and detachment, could be an appropriate decision maker. There could be practical problems from a prejudgment perspective, because the Governor may in a clemency proceeding have already passed on a question of mental status.
Warren E. Burger: You condition that on his acting impartially, as you just said. Who would review the Governor to decide whether he acted with impartiality?
Richard H. Burr, III: Well, if as a matter of due process law some minimal due process requirements were required, whether a particular competency determination was made in accord with those requirements would, I believe, be an appropriate matter for federal review in habeas corpus.
Warren E. Burger: But you said if it's required. In your view, are you telling us it is required?
Richard H. Burr, III: Your Honor, we submit that it is. Again, whether the source of the right is the Eighth Amendment or Florida's state-created right to be spared from execution when incompetent, we submit that the Constitution requires a reliable decision making process under either route.
Thurgood Marshall: What about a state law that said that the Governor shall appoint a commission of five reputable psychiatrists to decide as to whether he was sane enough to be executed?
Richard H. Burr, III: Again, I think if that were the only procedure, if those five psychiatrists were in the course of making that decision required to examine the person and then decide among themselves by whatever method they choose whether the person is competent or incompetent, I don't think that would stand up under constitutional scrutiny.
Thurgood Marshall: You mean you'd want to get in there and decide what kind of hearing that the five psychiatrists held?
Richard H. Burr, III: Your Honor, again it depends on the role assigned. If those psychiatrists are the decision makers, then--
Thurgood Marshall: The five psychiatrists are made the decision makers.
Richard H. Burr, III: --If they are the decision makers and there is a case where there is differing psychiatric opinion, not necessarily among those five--
Thurgood Marshall: Don't they have a right to a dissenting opinion, just the same as I have?
Richard H. Burr, III: --I'm sorry?
Thurgood Marshall: Wouldn't one of those psychiatrists have a right to a dissenting opinion, just the same as I have a right to file?
Richard H. Burr, III: Certainly, certainly. But this Court has long recognized where psychiatrists do differ as to forensic mental health issues, the only reliable way for resolving that difference is through an adversarial process, where the competing views of psychiatrists are laid before a fact finder and the more reliable of those competing views can be decided by a neutral fact finder.
Thurgood Marshall: Well, what more do you have to cite that says that five psychiatrists cannot be designated by the state as a "fact finding body"? Why can't a state say that that is a fact finding body for this purpose?
Richard H. Burr, III: Your Honor, I think the state could do that. But the risk of error, I submit, in a decision which has life or death consequences could not be satisfied by an ex parte process simply among those five psychiatrists. In a case where there is a serious dispute as to competency, I submit that's the threshold. Certainly in a case where there was agreement as to incompetency or incompetency... or competency--
Thurgood Marshall: You wouldn't need the commission. He'd plead guilty and plead that he was insane. I'm talking about where there is a dispute.
Richard H. Burr, III: --Where there is a dispute--
Thurgood Marshall: Yes.
Richard H. Burr, III: --Your Honor, I don't see how five commissioners among themselves can resolve that dispute without some input from--
Thurgood Marshall: Can five judges do it?
Richard H. Burr, III: --Certainly, after having heard presentations from both sides of an issue.
Thurgood Marshall: The judges don't have to be lawyers.
Richard H. Burr, III: No, that's correct.
Thurgood Marshall: So they could be psychiatrists.
Richard H. Burr, III: Absolutely.
Thurgood Marshall: So what are you arguing about?
Richard H. Burr, III: Your Honor, what we are arguing about is, in a case where there is a dispute about competency, the only fair and reliable way to resolve that dispute is through an adversarial process, at the end of which psychiatrists may well be the deciders. But the only way to have a disputed question of mental health and competency resolved, only reliable way, is through an adversarial presentation, to whomever the decision maker may be. Simply entrusting those decision makers to themselves is not--
Thurgood Marshall: Did I say the procedure would not be adversarial? All I said the fact finders would be, that's all I said.
Richard H. Burr, III: --I'm sorry. The fact finders could be psychiatrists. I'm sorry, I misunderstood the thrust of your question.
Sandra Day O'Connor: Mr. Burr, are you arguing for a full fledged adversarial hearing at a minimum, or can that be on paper? Can the documentation that you would urge be considered be submitted on paper?
Richard H. Burr, III: Justice O'Connor, I think that a critical component would be an oral adversarial hearing, for this reason. Again, through a long line of decisions the Court has taken the opportunity to look at the way mental health issues are resolved, both in the criminal context and in the civil commitment type context. And in each of those decisions, where the state takes involuntary action against a person who may be mentally ill, if mental illness is either a factual predicate for the state's action or a defense against the state's action, the Court has said that there has to be the adversarial crucible in which to make a reliable decision. Now, that, as I understand the Court's decisions, requires a couple of critical components that can't be taken care of on paper: the right to present evidence and to have it understood through questioning by the fact finder; and the right to cross-examine adverse evidence, and again with the notion of assisting the fact finder to make the most reliable decision. So I think it would have to be an oral adversarial hearing.
John Paul Stevens: Mr. Burr, can I ask you what in your view the test of incompetence is for this purpose?
Richard H. Burr, III: Again, I think the test would depend upon the source of the right.
John Paul Stevens: Assume it's the Eighth Amendment.
Richard H. Burr, III: If the test is the Eighth Amendment, we have proposed a test that we believe follows the contours of the Eighth Amendment reasons for the right in the first place. Basically, there would be three components: The first would be similar to the Florida test, whether the person understands the nature and effect of the death sentence and why it's being imposed. Secondly, whether the person has the capacity to appreciate the termination of his or her life, which is different from the first test. And the third part of the standard would be based on an access to courts concern, and that is whether the person has sufficient capacity to know any facts which might cause his conviction or sentence to be reversed and the ability to communicate it to counsel. So we would submit that the Eighth Amendment interest would span... Eighth Amendment test would span all three of those interests. I'd like to talk briefly about four concerns which I think the need for a reliable procedure raises. The first I have already addressed briefly, and that is the need for a threshold showing of incompetency before any plenary procedure, however it be defined, can be invoked. We certainly concede that some threshold showing should be required. That kind of threshold has been required in other contexts, such as incompetency to stand trial, in which the threshold was articulated in Drope versus Missouri.
John Paul Stevens: Mr. Burr, would you agree that the threshold ought to be directed at one or more of those three components of the test?
Richard H. Burr, III: Of the Drope components?
John Paul Stevens: The three you gave me. It wouldn't be sufficient, for example, just to prove some form of mental illness which did not necessarily relate to one of these three components?
Richard H. Burr, III: I think that's true, but I think the showing as to the relationship with the component would certainly not have to be as strong as after a full proceeding. Taking trial competency as an example, in Drope the Court isolated three factors that were material to the threshold determination: Evidence of irrational behavior, which I suppose might or might not be related to the Dusky test of competency; the defendant's demeanor at trial or pretrial proceedings; and prior medical opinion as to competency to stand trial. Now, the Court, as I read Drope and its progeny, certainly left latitude for one of these factors to be a sufficient threshold if it was strong enough. And I suppose if the person, again in a trial competency context, were so irrational that it was quite clear that that person had no capacity to understand the nature of the charges against him and to assist counsel, even though there was no explicit logical relationship, that would be enough to satisfy the threshold. So I think if you had that kind of profound mental illness, that would be sufficient, just as it would in a trial competency context. But generally speaking, you would want to have that threshold relate to the test of competency. Otherwise, you may be going through a proceeding that at the end of which you find out was immaterial.
William H. Rehnquist: Why does the Eighth Amendment require the person appreciate the potential termination of his life?
Richard H. Burr, III: Justice Rehnquist, there's certainly no explicit requirement--
William H. Rehnquist: No, that's quite obvious.
Richard H. Burr, III: --in the Eighth Amendment. I think again this whole Eighth Amendment question has to be addressed with a real feel for the historic prohibition, as well as the modern day analysis.
William H. Rehnquist: Well, the historic prohibition really comes out to be making peace with your maker, doesn't it?
Richard H. Burr, III: Well, there were a number of rationales given.
William H. Rehnquist: Well, what other ones sufficed in your view?
Richard H. Burr, III: Historically, the thinking was that madness was punishment itself.
William H. Rehnquist: Well, do you think that's an adequate reason?
Richard H. Burr, III: Well, I think there's a common thread through all of the common law reasons which is certainly relevant today, and that is that the concern for a functioning human intellect in a person being punished was a great concern.
William H. Rehnquist: Well, but why doesn't that apply equally to anyone being sent to prison? The only thing that separates capital punishment from imprisonment is making peace with your God, really.
Richard H. Burr, III: To that extent, that's true.
William H. Rehnquist: And doesn't that involve entanglement under the First Amendment?
Richard H. Burr, III: I don't think so, because I think making peace with God is simply a form of expressing the capacity to appreciate the termination of life. Making peace with God was the language used back in the Middle Ages, and for some people that's certainly equally important today. The capacity that we're talking about, though, is not a capacity for religion, but rather the capacity that all human beings have when they know that their death is imminent to come to terms with dying, rather than to be completely terrorized by death, to ameliorate that terror by an understanding of the life that person has lived and the death that's about to come.
Thurgood Marshall: Have you just discarded all the atheists?
Richard H. Burr, III: I don't think so, Justice Marshall, because I did say that it's the capacity to come to terms with death, not the capacity to make peace with God per se. Certainly people who are religious may express it in that way, but those who are not religious nonetheless have to face up to the terror of death itself.
Warren E. Burger: This concept that you've been discussing really antedates the Middle Ages and the medieval period, doesn't it?
Richard H. Burr, III: As best we can determine, yes, sir.
Warren E. Burger: Have the psychiatrists come to terms with that, or do they accept the medieval concept?
Richard H. Burr, III: I don't quite understand your question.
Warren E. Burger: Well, you're making... you are urging that the psychiatrists make this decision. Do they have some psychiatric--
Richard H. Burr, III: Back in the Middle Ages?
Warren E. Burger: --No. Do they have a twentieth century latter part analysis and explanation for using this medieval concept that a man must really appreciate why he's being made to suffer?
Richard H. Burr, III: Well, I think, as I understand the medical literature and the research that has been done on death and dying, the medical profession understands now that there is an ameliorative psychiatrical process that seems to be common to being a human being, that people go through in different ways when their death is imminent. I think there was an intuitive grasp of that back in the Middle Ages, when people spoke about the need to make peace with God. But I think that has been secularly understood as a common and universal psychiatrical process in the twentieth century. I'd like to talk briefly about not only the threshold that we submit must be met, but how the determination itself, again whether the right is from the Eighth Amendment or the state-created right, why the Constitution requires that there be a more reliable determination of competency than was present here. There are two reasons for this. The first I submit is found in this Court's Eighth Amendment jurisprudence over the last decade and a half, since the Furman decision. Since Furman, the Court has clearly articulated on a number of occasions that, because the taking of a person's life by the state is qualitatively different in its severity and irrevocability than any other form of punishment, the decision to take life must be correspondingly more reliable. And the Court has assured that there is this kind of greater reliability by requiring that the decision maker take into account all of the reasons proffered for not taking someone's life. Now, obviously there are some clear differences between the decision to impose the death sentence at the outset and the decision to carry out a death sentence against a person who may be incompetent. But there's a very fundamental commonality between those decisions as well, because in both instances what's at issue is whether or not life will be taken. And the irrevocability of that decision certainly informs the need for reliability as to the competency determination, just as much as it informs the need for a reliable sentencing decision at the outset. Likewise, the procedural assurance of reliability, that the decision maker take into account all of the countervailing reasons for taking life, should be applicable to the competency decision. And it's quite clear that the Florida procedure does not allow that. The Florida procedure for determining competency does not require the decision maker to take into account the evidence indicating the person is incompetent if the source of that evidence falls outside of the three psychiatrists appointed by the Governor. It's that need for reliability that the taking of life in this context requires that we find in the Eighth Amendment. The second ground is simply from the due process clause itself. For more than 100 years, this Court has repeatedly held that any party adversely affected, to be adversely affected by state action, has a right to be heard on the question of the appropriateness of the state's action. That's not simply a matter of being fair, although it certainly is that. But it's also a matter of wanting state actions to be reliable, because we, for better than 100 years, for 200 years, have entrusted an adversarial process as getting us more reliable decisions. It's that reliability which the Court has drawn on time and time again in the mental health forensic cases.
Warren E. Burger: But the basic decision on the punishment has been dealt with in the sentencing hearing, has it not?
Richard H. Burr, III: Absolutely.
Warren E. Burger: And that's an adversary proceeding.
Richard H. Burr, III: We concede that the question of the appropriateness of death as a punishment is settled and is settled in Mr. Ford's case. But at this point there is still a question as to whether that sentence is appropriately carried out at this moment. And if there is a right from either source to be spared from execution when incompetent, then the question of whether life is to be taken now is a question that has to be reliable--
Warren E. Burger: Should that be a final decision in this third stage, or could it be conditioned, that he could not be executed until he had recovered his capacity to grasp all the meaning of it?
Richard H. Burr, III: --Historically and in most of the states that have this rule, the rule is the latter, that the execution is postponed until and if the person regains competency. So it would not be a question that affected the sentence in a jurisdictional sense. The sentence would still be there, but not to be carried out until competency is regained. I'd like to take just one minute to address a final concern that I think this case raises, and that's the question of the need for finality. There's no question that in this Court's opinions and in the country now there is a great concern about finality in death cases. This Court has always been careful, however, to balance the need for finality against the need for a reliable decision making when death is at issue. In the context of this issue, if there is a constitutionally reliable decision making process at the outset finality will be possible to achieve. It can be done in this way. If there's a reliable determination process upon a raising of a claim of incompetency, there will be reliable fact finding concerning the person's mental state, concerning the person's history, medical history and clinical background, and there will be a forward-looking decision made as to whether the person is now competent or may be incompetent in the future. If future claims of incompetency were to be made, those claims would necessarily be new claims because they'd have to be made on the basis of changed circumstances. But the specter of endless litigation which the state has raised is really not a specter at all if there's a reliable process in the beginning, because--
Byron R. White: Could I ask you, do you believe that the decision, by whomever it is made, should be subject to judicial review? Must it be?
Richard H. Burr, III: --I sound like a broken record, but again I think it depends on the source of the right. If the source is the Eighth Amendment, then I think the habeas process would follow. But if it's a state-created right--
Byron R. White: Then what?
Richard H. Burr, III: --I think that's a tough question.
Byron R. White: Well, I know. But you're saying... you're asking us to say what's wrong with this--
Richard H. Burr, III: Certainly.
Byron R. White: --procedure, and so you should be able to say what you think the right procedure is.
Richard H. Burr, III: I will try to do that. But all I'm saying is that it's not easily answered.
Byron R. White: Well, do it the hard way, then.
Richard H. Burr, III: This Court in non-capital cases, criminal cases, has never required appellate review. If there is appellate review, then it has to be fairly done.
Byron R. White: Well, but we've at least required that there be a judge.
Richard H. Burr, III: Certainly. I thought the question was should there be appellate review.
Byron R. White: No, I said just judicial review.
Richard H. Burr, III: I'm sorry, I'm sorry. I apologize. If the procedure--
Byron R. White: What if the Governor went here had had an adversary hearing, you could call all the witnesses you wanted, make all the arguments you wanted, and then he decided the facts? Do you think the due process clause would require a judicial decision?
Richard H. Burr, III: --I think the due process clause would require a judicial review of that action. The reasons are this. In Pulley versus Harris, the Court held--
Byron R. White: So the state might as well just quit wasting its time and provide for this hearing before a judge in the first place?
Richard H. Burr, III: --Not necessarily, because I think any form of judicial review after a fair administrative proceeding can be limited. It can be limited to whether fact findings, for example, are fairly supported by the record, and need not be a plenary kind of review that there would be after a judicial proceeding. But I do believe the underlying Eighth Amendment concern for reliability would call for some form of review, just as in the death sentencing context in Pulley the Court indicated the Eighth Amendment required some form of meaningful appellate review. Thank you.
Warren E. Burger: Ms. Shearer.
Joy B. Shearer: Mr. Chief Justice and may it please the Court: The Governor of Florida has determined that Alvin Ford is competent to be executed. The fact that this occurred does not give rise to an Eighth Amendment right, and the requirements of procedural due process were satisfied. At this point the state should be entitled to carry out its lawfully imposed sentence. There is no question Alvin Ford was sane in 1974 when he committed the offense of first degree murder and when he was tried and convicted. In 1984, the Governor of Florida determined that he was sane to be executed. This was done through the procedure outlined in Florida Statute 92207. Upon being informed by Ford's attorneys that they believed Ford was insane, the Governor appointed a commission of three psychiatrists. The commissioners were directed to examine Ford and to determine if he understood the nature of the death penalty and why it was to be imposed upon him. The three commissioners personally examined Alvin Ford. They met with his attorneys and accepted materials prepared by the attorneys and submitted to them. They reviewed his prison records and they spoke to prison personnel having daily contact with Ford. All three commissioners independently concluded and reported to the Governor in writing that Ford did understand the penalty and why it was being imposed. By signing the death warrant, the Governor accepted their conclusions and made the determination of sanity. We submit this is akin--
Byron R. White: Wasn't there a contrary opinion?
Joy B. Shearer: --There was an opinion which was a psychiatrist that Ford's attorneys asked to go and see Ford. He was of the opinion that Ford--
Byron R. White: He was not one of the commissioners?
Joy B. Shearer: --No, that's correct.
Byron R. White: So they did have a... they were allowed to submit that evidence from their independent psychiatrist?
Joy B. Shearer: They gave this report to the commissioners and they sent it to the Governor's office, although there was no solicitation of this material by the Governor. This doctor, however, only disagreed on one prong. He agreed that Ford understood the nature of the death penalty, but he said Ford apparently did not understand why it was to be imposed upon him.
Thurgood Marshall: There was no hearing. The Governor did not hold a hearing.
Joy B. Shearer: That's correct. We submit the Florida statute carries through the common law humanitarian policy and that this does not give rise to an Eighth Amendment right. In the first place, the deferment of execution of the insane is only a temporary reprieve. It does not affect the fact that the sentence of death is lawful and it does not in any way cancel it or suggest that its imposition was wrong. For this reason, we submit that the claim raised by Ford does not fall within the traditional scope of the Eighth Amendment. There have been various justifications advanced, both at common law and now, as to why this prohibition should exist. But none of them are... there is no one single compelling rationale which has been generally accepted or which Ford suggests now. As to the argument that it would perhaps prematurely cut off access to the courts, Ford concedes that this is not true in his case because he had ten years of litigation and ample opportunities for judicial review prior to any claim of insanity being made. As to the insanity perhaps being punishment enough, of course, this isn't true either, because upon restoration to mental health the sentence would be imposed. As to the argument that there should be opportunity to prepare for death, I think we should put this is perspective and consider the very little opportunity the victim in this case had to prepare for death. He saw a shotgun pointed at his head and saw a shot go off, and that was the end of his opportunity. And Ford certainly had ten years to prepare himself. And the analysis to the Elizabeth Kubler-Ross writings--
John Paul Stevens: Let me interrupt you, if I may, with that one. Are you saying that even if there were no opportunity... I know you say in this case he had plenty of opportunity. But even if the particular convicted person had no opportunity to prepare for death, whatever might be appropriate in his case, that still should not matter because of what he did to the victim?
Joy B. Shearer: --Well, I think the fact that he has heard the sentence pronounced upon him in court gives him the opportunity to prepare for death. And the fact that there is... we know in any capital case there is going to be several years of review, and this does not--
John Paul Stevens: Well, supposing at the time of imposing the sentence he fully understands, but then a month later he loses the capacity to prepare for death. Are you saying that that should not prevent the state from going forward with the execution?
Joy B. Shearer: --Yes.
John Paul Stevens: I see.
Joy B. Shearer: I am. I think that the Florida standard is appropriate and it should be the only criteria that is necessary to determine, and that is again if he understands the nature of the penalty and why it's to be imposed. That somewhat incorporates preparation for death also, because if he understands what's happening that should be sufficient. We submit the penalty is just and therefore this determination, like clemency, falls outside the judicial process. In Roberts versus the United States, to answer a couple of questions that came up, the D.C. Circuit held that the development of a mental disorder after incarceration is not cruel and unusual and unusual punishment because the sentence itself remains lawful, and the fact that a particular person has a problem adapting to prison does not cancel the punishment or give rise to an Eight Amendment claim.
Byron R. White: Well, could I ask, suppose Florida had no provision at all for determining whether a person were competent to be executed, and the law of Florida was that once you're convicted, the fact that you become incompetent and don't know what's going on doesn't make any difference, we'll still execute you. Would there be any constitutional barrier to that?
Joy B. Shearer: Unless there was going to be an argument that the common law prohibition should carry over and that there was some sort of fundamental--
Byron R. White: Well, I just asked you. Do you think the federal Constitution would require that Florida first determine whether he's competent?
Joy B. Shearer: --No. No, Your Honor.
Byron R. White: So Florida could just say, we intend to execute people who become incompetent after they are sentenced to death?
Joy B. Shearer: Well, of course we haven't.
Byron R. White: I know. But as far as the federal Constitution is concerned, that's your position?
Joy B. Shearer: That's correct, that there is no constitutional right, because it's like clemency and it falls outside any stage of the judicial process. This Court has long recognized that there is not an entitlement to litigate every federal claim in a federal court, and even if the Court finds an Eighth Amendment right we submit that our Governor acted as a neutral and detached decision maker and that, since the actual carrying out of the sentence is an executive function, it's appropriately entrusted to him to determine the competency of one who is to be executed; and that likewise, our standard is adequate and that it doesn't need to be further expanded. We submit that this Court's decision in Solesbee versus Balkcom, which the Court of Appeals applied in this case and held controlling, was correctly decided. In Solesbee, this Court held that a determination of competence for being executed is an executive function, like clemency, and that the Governor, with the aid of expert opinion, can make this decision and due process is satisfied. Nothing, no developments in the law that have occurred since Solesbee have in any way diluted the validity of the Court's reasoning in that opinion. The Gardner case, which came up in recent times, dealt with the initial selection of persons who were to be sentenced to death and did not deal with post-conviction insanity, like this case. We submit that, since all judicial remedies had been exhausted at the point when the claim was made and that due process can be flexible, that this procedure that we have in Florida adequately balances the competing interests identified by this Court is the Mathews versus Eldridge opinion. We submit that Ford's private interest at this point is minimal, because he has had many, many years in which the validity of the judgment and sentence have been litigated directly and collaterally. And on the other hand, the state does have a valid interest in bringing an end to litigation and carrying out this sentence. In this case, no claim of insanity was every presented to any court until ten days prior to the scheduled date of execution, although, the claim being that the Governor's procedure was inadequate, certainly a judicial determination could have been sought at an earlier time. The district court did find an abuse of the writ in this case, and the Eleventh Circuit didn't reach that issue, but I think it's appropriate to note that we do have a valid interest in finality and that this is one reason why our present procedure is appropriate. The Governor can make the determination in a reasonably expeditious manner, and that properly respects the individual's interest, but it also serves the state's interest. We submit that the risk of erroneous deprivation is negligible because the Governor is advised by a panel of experts. In the Gilmore versus Utah case, this Court was willing to accept expert determinations in the state system of competency to waive direct appellate rights. So certainly in this case, many years after the original conviction, the Governor's determination, which was based on expert opinions, can be accepted and it can bring this matter to a conclusion. Our statute strikes the proper balance between these interests. In Barefoot versus Estelle, this Court took note that federal habeas corpus is not a forum to relitigate state trials. And certainly, it's even less so a means by which a defendant can indefinitely delay execution. Therefore in this case, bearing that in mind, we submit that the state has properly respected Alvin Ford's concerns and that the judgment and sentence are lawful, his competency has been determined, and that the Eleventh Circuit properly ruled in this case to affirm the judgment denying the petition for habeas corpus. If there are no further questions, I'd ask that that decision be affirmed. Thank you.
Warren E. Burger: Thank you, counsel. The case is submitted.
Speaker: The honorable Court is now adjourned until tomorrow at 10:00.