Tennessee Department of Human Services v. Vaughn

595 S.W.2d 62, 1980 Tenn. LEXIS 417

• Court: Tennessee Supreme Court
• Decided: February 11, 1980
• Status: Published

Opinions

OPINION

HENRY, Justice.

We granted certiorari in this case to examine the constitutionality of so much of Section 36-227(1), T.C.A., as provides that in a bastardy case an “alleged father shall not be compelled to give evidence.” We hold it to be unconstitutional.

I.

Tennessee Department of Human Services, as assignee of Donna Rogers, filed its petition in the Juvenile Court at Memphis seeking a determination that respondent was the father of a child born out of wedlock, with the usual and appropriate award for support and maintenance. Pursuant to Section 36-227(1), T.C.A., the case was transferred to the Circuit Court for jury trial “on the issue of paternity.”¹

After the transfer counsel for the petitioner propounded a series of interrogatories to defendant who refused to respond, taking the position that under Section 36-227(1), T.C.A., he was privileged against being required to “give evidence,” by interrogatories or otherwise. The trial judge held against the exemption but granted an interlocutory appeal pursuant to Section 27-305, T.C.A., and certified to the Court of Appeals the following question:

Does “evidence” as used in Tennessee Code Annotated, Section 36-227(1) afford the Defendant in a bastardy proceeding a privilege to refuse to answer interrogatories propounded by the Plaintiff?

While not stated with admirable articulation, the constitutional issue fairly inheres in the certified question. One need not play fast and loose with the English language to respond to a question as to whether a given Code section affords a privilege, by saying that it cannot do so because such would be unconstitutional. Indeed, this is a basic, primary and direct response.

Moreover, Section 27-305, T.C.A.,² should not be construed in such a way as to defeat substantial justice, result in a duplication of appeals, nor to evade a response to an issue of critical public importance which continues to recur but evades review.

The New Rules of Appellate Procedure speak to these considerations. Rule 13(b), which applies to all appeals to this Court, provides that “[rjeview generally will extend only to those issues presented for review.” (Emphasis supplied). But, the rule goes farther and makes it mandatory for the Court to consider the question of subject matter jurisdiction, “whether or not presented for review,” and authorizes the Court, in its discretion, to consider other issues in order “(1) to prevent needless litigation, (2) to prevent injury to the interests of the public, and (3) to prevent prejudice to the judicial process.”

These three reasons cry out for an adjudication on the constitutional issue in this case. Both pragmatism and principle are involved. We meet and decide the issue.

II.

The Court of Appeals reversed, holding that the defendant in a bastardy case had, and could rely on, the statutory privilege.

We respectfully differ with the Court of Appeals, and, while an extended discussion of the matter is not appropriate, we reject out of hand its conclusion that the “Tennessee Rules of Civil Procedure are not laws.” These rules, along with the Rules of Criminal Procedure and the Rules of Appellate Procedure, are “laws” of this state, in full force and effect, until such time as they are superseded by legislative enactment or inconsistent rules promulgated by this Court and adopted by the General Assembly. Any other construction would thwart, frustrate and emasculate these modern and progressive rules designed “to secure the just, speedy and inexpensive determination” of civil actions (Rule 1, Tenn.R.Civ.P.), the “just determination of every criminal proceeding” (Rule 2, Tenn.R.Crim.P.) and the “just, speedy and inexpensive determination of every proceeding on its merits” (Rule 1, Tenn.R.App.P.).

It ill behooves any court — particularly an appellate court — to denigrate this trilogy of Rules galvanized into law by joint judicial and legislative action and marking the methodology of trial and appellate practice under modern and enlightened Tennessee jurisprudence. The Legislature rejected the argument that rules governing trial and appellate procedure could not be adopted pursuant to the statutorily prescribed procedure and so do we. We would suggest that it is a foremost mission of the Bench and Bar of this state to unite in an effort to keep our rules current, to continually seek their improvement and to accord to them the respect that two branches of the government intended that they have.

III.

Section 36-227(1), T.C.A., governs the conduct of the trial both in the juvenile and circuit courts. It provides,' in part, that

[b]oth the mother and the alleged father shall be competent to testify but the alleged father shall not be compelled to give evidence. (Emphasis supplied).

We declined in Patrick v. Dickson, 526 S.W.2d 449 (Tenn.1975), to extend the Rules of Civil Procedure “to paternity cases in the juvenile courts,” and noted that such cases are “quasi-criminal in character.” 526 S.W.2d at 450-51. Subsequently, we held in Wilkerson v. Benson, 542 S.W.2d 811 (Tenn.1976):

It is not made a criminal offense in Tennessee for one to father an illegitimate child. Our bastardy statutes (§§ 36-222, et seq., T.C.A.) are civil in nature and are intended to provide for the support, maintenance, education and funeral expenses of the child, and for the expenses of the mother’s confinement and recovery, along with those incurred in connection with her pregnancy. 542 S.W.2d at 813.

The conflict, if any, between these two cases is more apparent than real.

“Quasi-criminal” actions are governed by the rules of pleading relating to civil actions. O'Dell v. City of Knoxville, 214 Tenn. 237, 379 S.W.2d 756 (1964). In Frazier v. McFerren, 55 Tenn.App. 431, 402 S.W.2d 467 (1964), the Court, on an appeal from a juvenile court, held that a bastardy hearing was a civil suit and the preponderance of „the evidence standard prevailed.

Under Section 36-227, T.C.A., paternity actions are certified to the circuit court whenever a jury trial is demanded. It may not be transferred to the criminal court. Circuit courts are governed by the Rules of Civil Procedure. These rules apply to bastardy cases transferred from the juvenile court.

We are not asked to determine the scope of the rules relating to interrogatories. Our consideration is limited to the constitutionality of the privilege statutorily afforded to the putative father against being required to “give evidence.” This phrase includes testimony in open court, and by deposition or interrogatories.

The practical result of the privilege afforded to the putative father is that, in circuit court, he may depose the mother and demand that she respond, but when she attempts to pursue a similar practice she runs squarely into the stone wall of a statutory exemption. The parties do not deal at arm’s length. The one enjoys an advantage, the other suffers a detriment. This different treatment of litigants does not comport with “the law of the land.”

Justice and the judicial process both suffer if an unwed mother is frustrated in her effort to obtain a full and fair hearing, with the putative father being exempted from the very rules she must abide. Public interest is heavily involved. This is far more than just a suit between these particular parties involving private rights only. The public policy of the State is involved in any bastardy hearing. Sometimes issues of such overriding importance arise that the courts are under a duty to speak. This is such a case.

We would abide the “grace and discretion” referred to by this Court in Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 658, 315 S.W.2d 245, 249 (1958), for here, as there, “an injustice would be done by enforcing the Rule.”

What is the injustice?

It shocks and affronts justice to say, in effect, that in a. bastardy hearing an unwed mother may be required to respond to interrogatories or to give a deposition covering her whole conduct but that the other party to the “tango” may seal his lips and silently lurk in the protective shadow of the law.

Article XI, Section 8 of the Constitution of Tennessee withholds from the Legislature the power “to suspend any general law for the benefit of any particular individual” or “to pass any law for the benefit of individuals inconsistent with the general laws of the land” or “to pass any law granting to any individual or individuals, rights, privileges, imm unitie, [immunities] or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.”

This section is closely akin to the “law of the land” proviso. It demands that all persons — in this case litigants — who are similarly situated or circumstanced, be governed by the same rule of law. The law must embrace and affect alike all persons similarly situated and must make no arbitrary or capricious classification.

We regard the exemption provided in favor of men in Section 36-227(1), T.C.A., as being a blatant declaration of male supremacy, male chauvinism at its very worst, and a throwback to the days when laws were made by men and for men. Such laws must perish. We live in a new day.

We adopt the language of the concurring opinion in Robinson v. Trousdale County, 516 S.W.2d 626 (Tenn.1974):

My research indicates that the first decision of the Supreme Court of the United States to invalidate a sex discriminatory law was Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). In that case the Court held that a mandatory provision of the Idaho Probate Code giving preference to men over women in the appointment of the administrators of decedent estates is violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

Subsequently in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) the Court held that denial to unwed fathers of a hearing on fitness accorded to other parents whose custody of their children is challenged by the State constitutes a denial of the equal protection of the law.

In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), the Court held that a statutory distinction in benefits payable to male and female members of the Air Force for their respective spouses, constitutes an unconstitutional discrimination against servicewomen and therefore violates the Due Process Clause of the Fifth Amendment of the Constitution of the United States. In Wiesenfeld v. Secretary of Health, Education and Welfare, 367 F.Supp. 981 (D.C.N.J.1973), the Court held that a provision of the Social Security Act [402(g)] authorizing payment of insured benefits to widows and divorced mothers but not widowers is unconstitutional as violating equal protection under the Fifth Amendment.

A footnote to an article entitled “Are Sex-based Classifications Constitutionally Suspect?”, appearing in Northwestern University Law Review, Vol. 66, No. 4 (1971-1972) contains a “mini” brief on sex as a classification. It reads as follows:

“See, e. g., Cohen v. Chesterfield County School Bd., 326 F.Supp. 1159 (E.D.Va.1971) (mandatory maternity leave at five months pregnancy denied equal protection); Kirstein v. Rector & Visitors of the Univ. of Virginia, 309 F.Supp. 184 (E.D.Va.1970) (state university must admit women); United States ex rel. Robinson v. York, 281 F.Supp. 8 (D.Conn.1968) (statute providing for longer sentences for women than for men convicted of the same offense held a denial of equal protection); Karczewski v. Baltimore & O.R.R., 274 F.Supp. 169 (N.D.Ill.1967) (Indiana law allowing husband, but not wife, to sue for loss of consortium, denied wife equal protection); White v. Crook, 251 F.Supp. 401 (N.D.Ala.1966) (Statute barring women completely from jury service violated the equal protection clause); Sail’er Inn, Inc. v. Kirby, 5 Cal.3d 1, 485 P.2d 529, 95 Cal.Rptr. 329 (1971) (statute forbidding women to work as bartenders violated the 1964 Civil Rights Act, California constitution, and the fourteenth amendment); Commonwealth v. Daniel, 430 Pa. 642, 243 A.2d 400 (1968) (statute providing for longer sentences for women than for men convicted of the same offense held invalid); State v. Crow Wing County Welfare Bd., 3 EPD ¶5162 (Minn. Human Rights Comm’n 1971) (refusal to grant social worker two months maternity leave violated Minnesota law and the fourteenth amendment). See also Paterson Tavern & G.O.A. v. Borough of Hawthorne, 57 N.J. 180, 270 A.2d 628 (1970) (city ordinance prohibiting employment of female bartenders was an unreasonable exercise of the police power).”

Numerous cases from other jurisdictions support the proposition that where the husband has a right of action for consortium and that right is denied the wife, the classification violates the Equal Protection Clause of the Fourteenth Amendment. 516 S.W.2d at 633-34.

Since the decision in Robinson, the Supreme Court has handed down at least three (3) pertinent and persuasive opinions.

The first of these was Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975). There the Court was dealing with support obligations of a father following a divorce, in the context of a Utah law providing that males reached their majority at age 21, women at 18. The Court applied the rule of Reed, supra, that a classification based on sex was subject to scrutiny under the Equal Protection Clause. The Court held that a classification must be reasonable as opposed to arbitrary and must rest upon some ground of difference having a “fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” 421 U.S. at 14, 95 S.Ct. at 1377, 43 L.Ed.2d at 694.

This is the “rational basis” test that we have applied in Tennessee. See Harrison v. Schrader, 569 S.W.2d 822 (Tenn.1978), and cases cited therein. See also, City of Memphis v. International Brotherhood of Electrical Workers Union, Local 1288, 545 S.W.2d 98 (Tenn.1976).

In the landmark case of Motlow v. State, 125 Tenn. 547, 145 S.W. 177 (1911), this Court, speaking through Justice M. M. Neil, stated the rule of rationality and reasonableness, as it existed then, and as it exists today, in the interpretation of Article I, Section 8, and Article XI, Section 8 of the Constitution of Tennessee:

These provisions forbid that any mere individual shall be singled out for legislative action, but do not deny the right to the lawmaking power to make proper classifications for purposes of legislation. Such classification, however, must rest upon some natural or reasonable basis, having some substantial relation to the public welfare, and the same provisions must approximately apply in the same way to all of the members of the class. (Emphasis supplied). 125 Tenn. at 590, 145 S.W. at 189.

It is not sufficient to say in the instant case that this classification applies to all alleged fathers of illegitimate children who face bastardy charges. This is the fallacy of our statute; it makes classes of men and women, or fathers and mothers, whereas in reality they are all members of a class of parents. The female members must testify, if called; the male members are exempted from the requirement.

The Supreme Court of the United States, in 1976, decided the case of Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Prior to that time, it had created a two-tier standard for the evaluation of classifications by state legislatures, see City of Memphis, supra, subjecting them to strict scrutiny only when there was an impermissible interference with fundamental rights and subjecting all others to the rational basis test. See Harrison v. Schrader, supra. Gender-based classifications had not been placed in either category.

In Craig v. Boren, supra, the Court dealt with a statute prohibiting the sale of beer to males under 21 and females under 18. Classifying the statute as an “invidious gender-based discrimination” against males 18 to 20 years of age, the Court established yet a third or intermediate level of scrutiny for gender-based classifications.³ In order to pass muster under the Equal Protection Clause of the Fourteenth Amendment, the Court said the “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” 429 U.S. at 197, 97 S.Ct. at 457, 50 L.Ed.2d at 407.

Finally, in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), the Court held invalid, on Equal Protection grounds, an Alabama statute requiring husbands but not wives to pay alimony. The Court held the statutory scheme was subject to scrutiny under the Equal Protection Clause and reemphasized that such “classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives.” 440 U.S. at 279, 99 S.Ct. at 1111, 59 L.Ed.2d at 319.

With this background of state and federal cases we look to the appellee’s argument. He says that “the consequences of determination of paternity are far reaching.” So they are. Being stigmatized by society with the scarlet letter of the fornicator and branded as the bearer of a bastard child is also quite far reaching. He says there is “the potential for false claims.” So there is, but there is also the potential, under the statute, for enabling a putative father to preclude a just claim.

No governmental interest is served by this exemption — only the interest of the man who impregnated a woman. The public policy of this State is reflected in our bastardy laws. They are designed to require that the father provide for the support and education of the child, its funeral expenses, the expenses of the mother’s confinement and recovery. Section 36-227(1) emasculates that policy. It is the policy of our law to provide for unwed mothers and absent the father’s contribution, this falls upon the State. This exemption defeats our stated governmental objections and flies in the face of our declared humane public policy.

We hold that Section 36-227(1), T.C.A., violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States; that it violates the Law of the Land provision of Article I, Section 8 of the Constitution of Tennessee and the privileges, immunities and exemptions section of Article XI, Section 8 of the Constitution of Tennessee.

Reversed and remanded.

FONES, J., concurs. BROCK, C. J., concurs by separate opinion. HARBISON and COOPER, JJ., dissent.

1 . Upon transfer, the Circuit Court is empowered not only to try the issue of paternity, but to “make an order of paternity and support” as set out in Section 36-229, T.C.A. This latter section governs the support and maintenance of children bom out of wedlock.

2 . Superseded by Rule 9(a), Tenn.R.App.P.

3 . See Wilkinson, “The Supreme Court, the Equal Protection Clause, and the Three Faces of Constitutional Equality,” 61 Va.L.Rev. 945 (1975).