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FORT PECK TRIBAL COURT OF APPEALS
FORT PECK INDIAN RESERVATION
ASSINIBOINE AND SIOUX TRIBES
POPLAR, MONTANA
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    This matter comes on as a result of Appellee’s Petition for Reconsideration of our November 25, 1996, Opinion. Arnie A. Hove, Esq. of Circle, MT, appearing on behalf of KEITH WYMAN BABBY, a minor, (KEITH) Petitioner/Appellant, by and through his natural mother, RAMONA O’CONNOR, (RAMONA) and David L. Irving, Esq. of Glasgow, MT, appearing on behalf of WYMAN DENNIS BABBY, Respondent/Appellee (WYMAN). Acting Chief Justice Sullivan writes the following opinion for the majority, in which Justice Pro Tem Furuseth does not join in PART A, however, concurs in PART B and the holding; Justice Pro Tem Winkjer dissenting..

    This Opinion will be our fourth in this matter. Our first Opinion issued November 25, 1996 ("FPCOA 217" referred to herein as "1996 Opinion") held that an 1979 Oregon "ORDER APPROVING AGREEMENT ESTABLISHING PATERNITY" ("1979 ORDER") based upon a stipulation between parents of a child born out of wedlock, which established paternity and then discharged the father "from any other liability, now or in the future, for support of the child…" was not a bar to the child in seeking a modification of that order under Oregon law.

    While the 1979 Order did not specifically reference any of the Oregon filiation statutes under which the action had been filed, two such statutes were prominently cited in the parties’ stipulation, ORS 109.220 and ORS 109.230. In our 1996 Opinion we noted that one of the statutes, 109.220, had been repealed three months prior to the parties’ stipulation and therefore was not available to the parties or the Court.

    On April 11, 1997, WYMAN moved for reconsideration citing the fact that ORS 109.220, had, in fact, been repealed in April, 1979, however, under the Oregon State constitution, all Acts of "repeal" and "enactment" are not effective until ninety days after the close of the legislative session in which they were passed, and that the 1979 legislature was not closed until July 3, 1979. Therefore ORS 109.220 was still available to the Court and the parties when the stipulation was made on July 12, 1979 and when the Order was issued on July 18, 1979. Shortly after the reconsideration Motion was filed, this Court lost the services of Justice Pro Tem Margy Bonner, one of the Justices that took part in the 1996 Opinion. Justice Pro Tem Peter H. Furuseth was assigned in her stead. On September 24, 1997, after consultations between members of the newly composed Court, we granted Appellee’s petition for a Motion to Reconsider our 1996 Opinion. On October 17, 1997, this Court denied RAMONA’s Motion to Dismiss our September 24, 1997 Order granting reconsideration.

    Our Order of September 24, 1997, accepting appellee’s Motion for Reconsideration, was limited to a single issue and we ordered each of the parties to brief that issue and address each of the subsidiary issues.

"Whether, under Oregon law, the 1979 ‘ORDER APPROVING AGREEMENT ESTABLISHING PATERNITY’ issued pursuant to Oregon’s filiation statutes, is modifiable?

PART A

    It must be conceded that the parties’ agreement contained references to ORS 109.220 and ORS 109.230, and that WYMAN relied heavily upon them throughout the Oregon litigation. Further, it must be noted that the Oregon Court "approved and confirmed" the agreement "in all respects". However, It is not clear what the Oregon Court intended by this language. The Court, as pointed out earlier, did not make any statutory reference whatsoever on the face of the Order. Neither did the Court expressly "incorporate" the agreement into its’ Order. Did the Court intend for us to look at the parties’ agreement to determine the authority by which the Court curtails a precious right of one of our children? We note that the Order does use the word "annexed" and it could be argued that the Court was "incorporating" the agreement into its’ Order. If then, we were to look to the parties’ agreement for authority, which statute should we choose? ORS 109.220 or ORS 109.230? Or should we accept both? There are grave problems in interpreting this Order regardless of which alternative we use.

    As this Court pointed out in our 1996 Opinion, these two statutes were addressed by the Oregon Court of Appeals five years before the 1979 Order:

"On appeal plaintiff contends that the release she executed was not a bar because ORS 109.220 makes such an agreement subject to court approval. Defendant contends that the release is binding under ORS 109.230." … (verbatim citation of both statutes follows) …Neither brief attempts to reconcile the two statutes. Fox v. Hohenshelt, (1974)19 Ore. App. 617, 620; 528 P.2d 1376, 1378. (our emphasis)

    The Fox Court did not attempt to interpret 109.220, most likely because it was not the primary issue; it’s invocation came into play by the mother stating that her 109.230 agreement had not passed the muster of "judicial scrutiny" required under 109.220. Fox did, however, interpret and impose drastic limits on 109.230.

    A careful reading of each statute juxtaposed with the facts of this case reveals that the Oregon Court could not possibly have, with legal bona fides, relied on either statute as its’ authority to discharge WYMAN from future child support payments. An analysis of each of these statutes follows.

    ORS 109.230 provides: "Any contract between the mother and father of a child born out of wedlock is a legal contract, and the admission by the father of his fatherhood of the child is sufficient consideration to support the contract." This language, standing alone is rather innocuous and, without further interpretation, such language would appear to say nothing more than the nature of the contract between WYMAN and RAMONA was "legal and binding". However, the main thrust of the holding in Fox was to limit the effect of 109.230 drastically:

"An argument can be made that because she signed a contract limiting her recourse to the courts the mother should be precluded from further action, especially in view of ORS 109.230. Such an interpretation if applied to a proceeding by her on behalf of her child would, however, be contrary to ORS 109.125 through 109.220. These statutes are for the benefit of the child and not the mother. Only child support and expenses of prenatal and postnatal care which are of direct benefit to the child may be ordered as a result of a filiation proceeding. In order not to construe ORS 109.230 in such a manner as to effectively negate the clear legislative intent contained in the remainder of the filiation law, we construe ORS 109.230 as binding the mother only as to damages she might be conceivably entitled to recover which are purely personal to her, and not as preventing her from proceeding under ORS 109.125 for the benefit of the child." (id @ p. 627; p. 1381)

    Thus, according to the clear language of the Fox Court, the agreement between WYMAN and RAMONA, cannot possibly give the Court authority to discharge WYMAN from "any other liability, now or in the future, for support of the child…" Under 109.230, any monies paid to RAMONA would necessarily be limited in accord with the Fox holding. Further, if one suggests that some or all of the $13,000 was paid under the authority of 109.230 (as the agreement would have us believe), the Court, notwithstanding any language to the contrary, would retain jurisdiction of the matter under Fox:

In view of (1) a legislative policy recognizing and protecting all interests as expressed in the entire filiation proceedings statute, (2) the nonspecific nature of the language in ORS 109.230, and (3) a basic policy that two parties should not by their action be able to prejudice the rights of a third, we hold that a contract between the mother and putative father of an illegitimate child cannot without judicial scrutiny and approval preclude future filiation proceedings for purposes of child support. We hold that this is the rule irrespective of who institutes the proceedings. Filiation proceedings are suits in equity, ORS 109.135. [*629] In such a proceeding the court has the power to weigh all of the factors, including the needs of the child, the interests of the state, the amount of money already paid by the putative father under a contract or otherwise, and the mother's financial position. If the court finds that the child's and the state's interests are adequately protected, it may choose merely to incorporate an agreement previously reached between mother and father into its decree, as provided by ORS 109.155, subject to future modification under ORS 109.165. (id. @ pp. 628, 629; 1381)

    In summary, if 109.230 was the basis for some, or all, of the $13,000, the parties’ agreement to discharge WYMAN’s future child support obligation fails because the Fox Court specifically prohibited it without judicial approval. If the Court approved WYMAN’s discharge under 109.230 then the Court, after finding that the child’s and the state’s interests were adequately protected, was obliged to incorporate the agreement into the decree as provided by ORS 109.155, subject to future modification under ORS 109.165. On the other hand, if none of the $13,000 was attributable to 109.230, then why was it referenced in the agreement in the first instance?

    We note that WYMAN in his most recent brief, in which he was ordered to cite all relevant Oregon law involving the issue herein discussed, remained totally silent on 109.230. Perhaps this silence is a concession that 109.230 would be fatal to his cause and therefore indefensible. If that is the case, we agree with WYMAN.

    ORS 109.220 provided:

"The judge of the juvenile court of the county in which the female referred to in ORS 109.125 resides may make such compromise or arrangement with the putative father of any child born out of wedlock relative to the support of the child as the judge deems equitable and just, and thereupon may discharge the putative father from all liability for the support of the child".

    The primary subject of this statute is the "putative father". According to The American Heritage® Dictionary of the English Language, Third Edition, "putative" is defined as "Generally regarded as such; supposed." "Supposed" is defined by the same lexicon as "Presumed to be true or real without conclusive evidence". The same dictionary provides synonyms for these two words as follows: supposed, conjectural, hypothetical, putative, reputed. The central meaning shared by these adjectives is "put forth or accepted as being true on inconclusive grounds".

    Thus, when we substitute the synonyms for "putative" and place each of them in front of "father" we get: "supposed father", "conjectural father", "hypothetical father", "reputed father". No one should have difficulty agreeing with these phrases as representing the meaning of the phrase "putative father" as used in the statute. Now, we interpret the statute while applying our facts in this case.

    The legislature uses the phrase "putative father" twice. They do not refer to simply the "father" at any time. We take this, using the plain words as our guide, to mean that, the juvenile judge may make an arrangement with the "supposed father", the "conjectural father", the "reputed father" and so on. Not once does the Oregon legislature say the juvenile judge can make an arrangement with the "father", yet when the Order issued from the Oregon Court, WYMAN was, in fact, no longer the "putative father", but was the "father" of RAMONA’s child by his own admission.

    At the time of the filing of her petition on August 10, 1978, RAMONA could only allege that WYMAN was the father of her child. In her petition, entitled simply "Petition (Filiation Proceeding)", RAMONA asked that a determination be made establishing paternity in WYMAN, reimbursement of medical and dental expenses incurred as a result of her pregnancy, $500 per month child support, attorney fees, and reasonable visitation for WYMAN. For all legal and practical purposes, WYMAN was at the time of the filing of RAMONA’s petition, the "putative father" of RAMONA’s child.

    On July 12, 1979, six days before the Court signed its’ ORDER APPROVING AGREEMENT ESTABLISHING PATERNITY, WYMAN "freely admitted" that he was the father of RAMONA’s child. This admission is in writing and can be found in paragraph C, RECITALS contained in the AGREEMENT COMPROMISING CLAIM FOR SUPPORT OF CHILD BORN OUT OF WEDLOCK.

    From July 12, 1979 forward, WYMAN was the "freely" acknowledged father of RAMONA’s child. He was no longer, nor could anyone classify him as, the "putative father". His admission was as sound as a Court’s pronouncement on the issue of his paternity. WYMAN argues that "…You cannot make th(e) finding of paternity on the record without substantive evidence." (See Appellee’s brief on Reconsideration, page 7, lines 16 - 18, quoting from the Oregon legislative history.) The statement WYMAN quotes is from a REP. Smith. Unfortunately, WYMAN did not quote from the response given to REP. Smith by Mr. Young, the Oregon Assistant Attorney General. Quoting from the legislative history directly following REP. Smith’s quote above, we found the following: "MR. YOUNG responded that they can make a finding of paternity right now (before repeal of 109.220) if they can get the mother and father to agree that there is paternity." It is without question that RAMONA and WYMAN agreed to WYMAN’s paternity in writing, in their agreement, which was the sole basis for the 1979 Oregon Judgment.

    Thus, WYMAN was the "father", not a "putative father", of KEITH when, on July 18, 1979, the attorneys for WYMAN and RAMONA appeared before the Court on a Motion for Order Approving Agreement Establishing Paternity and the Court signed its’ Order, decreeing WYMAN’s parentage the very same day.

    Yet WYMAN would argue otherwise. WYMAN would argue that he only admitted paternity to "buy his peace". According to WYMAN, he gave up all of his rights as a " father". He implies that the relationship between father and son is gone forever: "The child is permanently deprived of a legal father and all the benefits that attach to that status, including rights to inheritance and rights to Social Security benefits should something happen to the father…" (See WYMAN’s brief, p. 7, lines 13 - 16).

    In fact, nothing could be further from the truth as shown on the face of the Court’s Order. First, the title on the Order rebuts any notion that the relationship between father and child was "gone forever", indeed, the "legal" relationship between WYMAN and his child was just beginning: "ORDER APPROVING AGREEMENT ESTABLISHING PATERNITY". Contrary to WYMAN’s argument, the Order which purported to discharge WYMAN’s obligation to pay future child support, did not terminate his parental rights., but instead, established those rights. Secondly, the Court unequivocally preserved WYMAN’s rights to visitation if we are to believe that everything contained in the parties’ agreement was "in all respects confirmed and approved". Paragraph VI, line 25 on page 3 of the agreement reads:

"CUSTODY AND VISITATION"

Subject to the Order of any Court of competent jurisdiction, Petitioner shall have custody of the minor child and Respondent shall have no rights of visitation." (emphasis added)

    This provision sounds very much like the Court was retaining jurisdiction rather than giving it up. Why would such a provision be placed in an Order which purportedly "terminates" the rights of the parent?

    Thirdly, reading from the same agreement, at Paragraph VII, line 4, page 4:

"NAME OF CHILD"

    Petitioner and Respondent agree that the child shall bear the given name of Keith, the middle name of Wyman, and the last name of Babby. Petitioner agrees to take all steps legally necessary to change the name of the child as provided by law and that Respondent shall execute all documents and consents necessary to effect said change of name…"

    If WYMAN’s parental rights had been cut-off by the Order, as suggested by WYMAN, then why would such a provision as requiring WYMAN’s execution of documents, or potential consent to change the child’s name, be necessary? If this were an Order terminating those rights, it alone would suffice for the aforementioned purposes.

    Finally, if WYMAN were to pass away intestate, would KEITH be able to file the 1979 ORDER with the probate Court and claim heirship? If the Administrator of WYMAN’s estate had nothing more than the documents before this Court, the answer would most certainly be in the child’s favor.

    Now take these factual anomalies and compare them with a typical 109.220 case as related by the Oregon Assistant Attorney General before the legislative committee considering the repeal of 109.220:

    Senate Judiciary, SB 219 Exhibit E, 1-24-79, 1 page Lawrence Young

TESTIMONY ON SENATE BILL 219 RELATING TO THE ESTABLISHMENT OF PATERNITY

    ORS 109.220, a copy of which is attached to this testimony, allows courts to compromise a paternity suit after making provisions for the child’s support. Typically, a case which involves this statute starts with a paternity suit filed by the mother. The putative father does not want paternity established, and generally offers a lump-sum payment in exchange for the dismissal of the suit. If the judge agrees, then the lump sum is paid to the mother and the suit is dismissed without establishing paternity. As the statute is presently written, the mother does not even have to be consulted about the compromise arrangement.

    I have seen one case that was compromised for $500, but generally the amounts range from $7,000 to $15,000. Incidentally, the $500 compromise was performed prior to any involvement by the Support Enforcement Division.

    If the money is spent, and the child goes on welfare, the father cannot be made to pay child support since paternity is not, and cannot be, established.

    The child involved in this kind of proceeding usually does not have any say in the matter. In exchange for a lump sum of money paid to the mother, the child is permanently deprived of a legal father and all the benefits that attach to that status, including rights to inheritance and rights to Social Security benefits should something happen to the father.

    For further information, contact:
    Lawrence R. Young
    Assistant Attorney General
    378-4879

    As shown by the testimony given to the Oregon legislature, the case that WYMAN argues for is the "typical" case under 109.220; that is, where the putative father does not want paternity established, thus he offers a lump sum payment for the dismissal of the action and, if the judge agrees, the lump sum is paid and the case is dismissed without establishing paternity. When that happens you have permanently deprived the child of a legal father and all of the benefits attached to the relationship of father and son.

    It should be crystal clear that WYMAN’s case is a marked departure from the "typical" case testified to by the Assistant Attorney General. It should also be noted that at no time does the Assistant Attorney General speak of a case under 109.220 where paternity was established first and then the Court discharges the "father" from future child support obligation.

    Finally, there are two additional reasons that raise doubt that the Oregon Court discharged WYMAN’s child support obligation under 109.220. First, the statute requires that any such discharge be made by the Judge of the Juvenile Court. This is a "black letter law" requirement. Ostensibly the rationale for this requirement is that no one knows the needs and best interests of children than a Judge of the Juvenile Court. It should be noted that the ORDER APROVING AGREEMENT ESTABLISHING PATERNITY bears the following heading:

"IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH

(emphasis added)

    We know nothing of the composition of the Oregon Court system. It may very well be that a Domestic Relations Judge can sit in Juvenile Court and vice versa. If such were the case however, it would seem basic to proper judicial procedure to state such "substitution" in any Orders flowing from the temporary "appointee". We know nothing regarding the Judge who signed the 1979 Order other than what is on the face of the Order itself and once again, that information, does not comport with the requirements of 109.220.

    Another requirement of 109.220, perhaps one of the most important, is that the Judge of the Juvenile Court must make a determination that the lump sum payment is "equitable and just" relative to the child support issue. Although there is no specific statutory guidelines, it would appear that the Oregon Court had nothing but the parties’ agreement from which to make such determination. This is supported by the Order itself which starts:

"Based upon Petitioner’s Motion having been duly filed for the approval of an Agreement Compromising Claim for Support of Child Born Out of Wedlock (Agreement) made between said Petitioner and the above-named Respondent, dated the 12^th day of July, 1979, with respect to a child born out of wedlock to the Petitioner; and the Motion having come on regularly for hearing on the 18^th day of July, 1979, before this Court; and the Petitioner appearing by and through Kurt Engelstad, of her attorneys, and the Respondent appearing by and through Stoddard D. Jones, of his attorneys; having consented to the entry of the Order Approving said Agreement…"

    According to the plain language on the face of the Order, the parties were not even present in Court, but rather, they appeared by and through their Counsel. No where in the Order is there a recital that the Court reviewed any documents, testimony, or any other type of evidence, other than the parties’ agreement. If then the only information available to the Court on July 18^th was the parties’ written agreement and given the fact that the Fox Court had previously ruled that: "the court has the power to weigh all of the factors, including the needs of the child, the interests of the state, the amount of money already paid by the putative father under a contract or otherwise, and the mother's financial position and if the court finds that the child's and the state's interests are adequately protected, it may choose merely to incorporate an agreement previously reached between mother and father into its decree, as provided by ORS 109.155, subject to future modification under ORS 109.165. It is clear that "but for the parties’ agreement" there was no basis to make the requisite finding required under 109.220. It was the agreement and only the agreement that could have formed the basis for the Judge’s discharge of WYMAN and according to Fox the parties’ agreement could only be used as a basis for future child support if such agreement was incorporated into the decree (109.155) subject to future modification under ORS 109.165. Therein lies the conflict between 109.220 and 109.230 that the Fox Court noted. Further, the historical application of 109.220 shows that the Oregon Courts used 109.220 narrowly, if not sparingly, when a lump sum payment was tendered by a putative father without establishing paternity.

    The conclusion is inescapable: the facts of this case do not allow an interpretation that the Court’s Order discharging WYMAN from future child support payments was pursuant to ORS 109.230 unless the order was subject to modification. Neither will the facts in this case allow for the discharge of future child support obligation pursuant to ORS 109.220 in that 1) WYMAN was not a "putative father" and therefore did not "qualify" under the statute; 2) The Order discharging WYMAN was issued from the "Domestic Relations Department rather than the "Juvenile Court" as required by the statute; 3) The agreement between the mother and "putative father" cannot be a basis for the discharge of future child support payments even when judicially approved because the Fox Court required all such agreements to be subject to the provisions of ORS 109.155 (incorporation of agreement into the judicial decree) and then subject to future modification under ORS 109.165.

    There is little doubt that any attempt to suggest that the 1979 Oregon Order discharged WYMAN on the basis of ORS 109.220 must fail regardless of how desirous, or intentional, the parties might have been at that time to have it so. What resulted, regardless of their intentions and efforts to the contrary, was an Order that is clearly modifiable under the plain language of ORS 109.165.

    However, if one is totally blind to all of the reasoning set forth above, and if one were to insist that the 1979 Order discharging WYMAN was "legally binding" under ORS 109.220, the 1979 Order would still be modifiable for the reasons discussed below.

    In our 1996 Opinion, we were not required to address the constitutionality of ORS 109.220 because we were under the belief that the statute had been repealed three months prior to the July, 1979 Order. If the statute had been repealed as we thought and if the statute was not available to the Oregon Court in July, 1979, we felt it unnecessary to make the foregoing analysis. Nor did we feel it necessary to address the constitutionality issue. However, given the information furnished by WYMAN that ORS 109.220 was viable through October 3, 1979 and therefore available to the Oregon Court in issuing the July, 1979 Order, and assuming that the reasoning discussed above concerning 109.220 is set aside for the purpose of further argument, we are compelled to address the issue of "Whether ORS 109.220, as WYMAN would have us apply it, is violative of KEITH’s equal protection under the law". Although neither of the parties have cited this important constitutional issue, we feel compelled to raise it sua sponte. Llewellyn Eagle v. Fort Peck Tribes FPCOA #210 @page 7; Fort Peck Tribes v. Morales #283 @page 6.

    The U.S. Supreme Court initially recognized an illegitimate child’s constitutional right to equal protection under the law in Levy v. Louisiana, (1968) 391 U.S. 68. In Levy a Louisiana trial court dismissed a suit brought by the illegitimate children seeking damages for the wrongful death of their mother. The Court of Appeal affirmed, holding that a surviving "child" under Louisiana’s wrongful death statute did not include an illegitimate child, denial of whose right of recovery was "based on morals and general welfare because it discourages bringing children into the world out of wedlock." The State Supreme Court denied certiorari. The U.S. Supreme Court held the statute, as construed, to deny a right of recovery under the Louisiana Wrongful Death Statute by illegitimate children concluding:

"…that it is invidious to discriminate against (illegitimate children) when no action, conduct, or demeanor of theirs is possibly relevant to the harm that was (inflicted upon the mother). (id. @ pp. 70-72).

    On the same day that Levy was announced, the U.S. Supreme Court also held that the Louisiana wrongful death statute, as construed to bar recovery for damages to the parent of an illegitimate child while allowing such recovery to the parent of a legitimate child, violates the Equal Protection Clause of the Fourteenth Amendment, there being no rational basis for the distinction. GLONA v. AMERICAN GUARANTEE & LIABILITY INSURANCE CO. ET AL. (1968) 391 U.S. 73; 74-76).

    Thus, Levy and Glona were seminal decisions that have spawned several progeny, in which the U.S. Supreme Court has held unconstitutional a number of other State and Federal statutory discriminations against illegitimate children. (New Jersey Welfare Rights Organization v. Cahill, (1973) 411 U.S. 619 {holding a state "Welfare" statute as violative of equal protection in that it discriminated against illegitimate children}; Jimenez v. Weinberger, (1974) 417 U.S. 628 {holding that portions of Social Security Act as applied to illegitimate children was violative of due process and equal protection}; Weber v. Aetna Cas. & Sur. Co., (1972) 406 U.S. 164 {holding that a Louisiana State Worker’s Compensation statute’s denial of equal recovery rights to the dependent "unacknowledged illegitimate children" violates the Equal Protection Clause of the Fourteenth Amendment}

    The Weber Court made this compelling observation:

"The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual -- as well as an unjust -- way of deterring the parent." Weber ,@ p. 175.

    Prior to 1973, the State of Texas had an elaborate scheme for the dutiful support by a parent for their legitimate children. However, no such statutory scheme existed for illegitimate children. In Gomez v. Perez, (1973) 409 U.S. 535, the U.S. Supreme Court held that the Texas law denying the right of paternal support to illegitimate children while granting it to legitimate children violates the Equal Protection Clause of the Fourteenth Amendment.

    In response to Gomez, the State of Texas enacted legislation wherein illegitimate children could establish paternity for the purpose of collecting child support, albeit they must do so within the first year of their life. In other words, a one-year statute of limitations period which would automatically trigger at birth. In Mills v. Habluetzel, (1982) 456 U.S. 91, the U.S. Supreme Court held that the State of Texas could not constitutionally provide a one-year statute of limitations in which illegitimate children could establish paternity when such a short period of limitations was not applicable to legitimate offspring.

    The Mills Court stated that when a State grants an opportunity for legitimate children to obtain parental support, it must also grant the same opportunity to illegitimate children and it is significant that the Court stated that this latter opportunity must be more than illusory, although it need not be coterminous with the procedures accorded legitimate children. (id. @ pp. 97-98.)

    In Pickett v. Brown, (1983) 462 U.S. 1, the U.S. Supreme Court spoke again on the issue of illegitimate children and a statute of limitation. This time they struck down a Tennessee law that allowed for a two year period in which to establish paternity.

    Likewise in Clark v. Jeter, (1988) 486 U.S. 456, the Court held a Pennsylvania statute of limitations unconstitutional (violative of equal protection) because it required illegitimate children to bring their paternity suits within a six year period while at the same time no similar restriction was imposed upon legitimate children.

    The Clark case has proven pivotal for illegitimate children in their quest for equal protection under the law. Although a statute of limitations case, when the U.S. Supreme Court issued its’ decision in Clark, it also reversed and remanded Gerhardt v. Moore, (1988) 486 U.S. 1050, a lump sum child support case, to the Wisconsin Supreme Court for consideration in light of Clark. The facts in Gerhardt are very similar, perhaps even more compelling, than the facts herein.

    In Gerhardt Heather Jo Krueger (Krueger) was born out of wedlock to Betty Lou Krueger on September 7, 1969. Sometime thereafter, the State of Wisconsin, by Betty Lou Krueger, filed an action against Arlen L. Moore under Chapter 52, Stats. 1967, seeking to have Moore adjudicated the father of Krueger and seeking contribution for the child's support. An agreement was entered on October 27, 1970, pursuant to sec. 52.28, Stats. 1967, whereby Moore admitted paternity and agreed to a lump-sum payment for support. The agreement was drafted by an assistant district attorney and signed by Moore, Betty Lou Krueger, and their respective attorneys. In addition, the agreement was approved by the corporation counsel and the circuit court judge. Findings and a judgment, based on the agreement, were also signed by the judge.

    Under the settlement, Moore agreed to pay a total of $4,600.00 over a period of time as a lump-sum settlement for child support, and medical expenses paid by Sauk county as a result of Krueger's birth. The agreement contained a clause stating:

That this agreement and full and complete performance thereof shall constitute full and final settlement of this action, pursuant to the provisions of Chapter 52, Wisconsin Statutes 1967.

    Moore complied with the terms of the agreement and made all payments in a timely manner, his obligation under the agreement ended with his last payment in late 1974.

    On November 20, 1984, Krueger, by her guardian ad litem (Gerhardt), commenced an action against Moore, who was now deceased, seeking an order requiring Moore to pay 17 percent of his gross income from November 1, 1974, for past, present, and future support. Krueger also sought to be named as the irrevocable primary beneficiary of a life insurance policy, as well as receive certain other insurance benefits. Moore moved to dismiss the action on the grounds that it raised issues previously adjudicated in the settlement proceedings. The circuit court dismissed the action.

    The Wisconsin Supreme Court granted certification of the issues and affirmed the circuit court. Gerhardt v. Estate of Moore, 139 Wis. 2d 833, 407 N.W.2d 895 (1987). It then concluded that the cause of action had been previously litigated and the 1970 paternity agreement, having been complied with fully, barred Krueger from receiving any additional support. Id. @ 845. More importantly, it held that paternity proceedings under Chapter 52, Stats. 1967 (analogous to ORS 109.220), did not constitute a denial of equal protection. Id. @ 845-46.

    Krueger petitioned the United States Supreme Court for review. On June 6, 1988, the U.S. Supreme Court issued its decision in Clark and on June 13, 1988, granted certiorari in Gerhardt v. Estate of Moore, (1988) 486 US 1050. At the same time an order was issued which vacated the Wisconsin Supreme Court's decision and remanded the matter for further consideration in light of the decision in Clark.

    On remand, the Wisconsin Supreme Court narrowed the issue to:

Whether under Clark, the lump-sum child support provision pursuant to Chapter 52, Stats. 1967, denying non-marital children the right to seek additional child support from their fathers, imposes an unconstitutional deprivation that is not shared by marital children, in violation of the equal protection clause.

    After thoroughly analyzing what they characterized as "a substantial body of United States Supreme Court decisions (most of which have been briefly reviewed herein) applying equal protection analysis to state statutory schemes affecting the rights of non-marital children", the Court reached its’ decision:

We conclude that the lump-sum settlement provision is not substantially related to its asserted state interests and therefore denies non-marital children the equal protection of the laws. Gerhardt v. Estate of Moore, (1988) 150 Wis. 2d 563, 568; 441 N.W.2d 734, 736

    A more recent federal district court case presents facts that are even more compelling than Gerhardt. A son was born in 1988 to an unwed mother (Williams) after a brief liaison with the putative father (Lambert). In 1990, DNA test results indicated the high probability that Lambert fathered the child. In April, 1990, Williams filed a paternity action in New York State against Lambert. Prior to any judicial determination as to paternity, and pursuant to §516 of the New York Family Court Act, Williams enters into a voluntary support agreement with Lambert. The terms of the agreement required Lambert to pay Williams $250,000 for the support of the child. In exchange, Williams agreed to waive, release and discharge all claims in connection with the child’s birth, support, education and maintenance. The parties further agreed that, pursuant to §516 ( c ), the complete performance of the support agreement by Lambert would necessarily preclude all future remedies arising out of the child’s birth, support, education and maintenance. Apparently sometime thereafter, Williams attempts to exact more money from Lambert and in response, Lambert, in October, 1992, files an action in the Supreme Court of New York (highest state trial court) for breach of the agreement and a declaratory judgment that the support agreement was enforceable and that its enforcement did not deprive Williams of equal protection of the laws merely because such an agreement would bar modification claims by illegitimate offspring. In November, 1992, Williams filed a declaratory action in New York Supreme Court against Lambert, claiming that §516 violates the equal protection rights of illegitimate children by denying them the right, afforded legitimate children, to modify child support agreements. On November 23, 1992, Williams removed her action to federal district court. On June 15, 1993, Lambert filed another action in the NY Supreme Court, the nature of which is unclear. In February and March, 1993, both parties filed various motions in federal district court for dismissal and partial summary judgment. The Federal District Court Judge stayed all of the proceedings, invoking the abstention doctrine, by a memorandum opinion (Williams v. Lambert, 844 F.Supp. 963 (S.D.N.Y. 1994). The Court held that, in light of the U.S. Supreme Court ruling in Clark, the New York Court of Appeals should be afforded an opportunity to reconsider its decision upholding the constitutionality of §516 in Bacon v. Bacon, (1979) 46 N.Y.2d 477. Upon appeal to the Second Circuit, the stay was vacated and remanded back to the Federal District Court to decide the important constitutional questions raised therein. Williams v. Lambert, 46 F.3d 1275 (2d Cir 1995).

    On remand, the Federal District Court narrowed the issue to whether Williams could seek additional support from Lambert. The Federal Court held that, notwithstanding Bacon, Williams’ effort to modify the support agreement "is not and cannot be barred by §516 ( c ) of the Family Court Act." Williams v. Lambert, 902 F.Supp. 460, 462 (S.D.N.Y. 1995).

    The Williams Court went on to state:

"In view of these holdings, the Court has every basis to believe that the New York Court of Appeals would conclude that either §516 is unconstitutional or that it must be construed in such fashion as to permit an illegitimate child to seek modification of the Support Agreement at issue." (id. @ p. 463)

    It should be noted that the Bacon Court had dealt with the same constitutional issue, that is, did §516 violate illegitimate children’s right to equal protection. While recognizing that the plain language of §516 discriminated between legitimate and illegitimate children, the Bacon Court correctly selected the "intermediate level of scrutiny" which has long been recognized as being applied to discriminatory classifications based on sex or illegitimacy. (See, e. g., Mississippi University for Women v. Hogan, (1982) 458 U.S. 718, 723-724; Mills v. Habluetzel, (1982) 456 U.S. 91, 99; Craig v. Boren, (1976) 429 U.S. 190, 197; Mathews v. Lucas, (1976) 427 U.S. 495, 505-506). The Bacon Court further recognized that statutory classifications premised upon illegitimacy must be "substantially related to permissible state interests" (Lalli v. Lalli, (1978) 439 U.S. 259, 259). However, the Bacon Court reasoned that in view of the "complex and difficult problems of proof" involved in paternity proceedings, §516 furthered several important state interests and that the statute was related, in a substantial respect, to these permissible and salutary governmental interests and went on to uphold the constitutionality of §516, Obviously, since Bacon (1979), the progeny of Levy and Glona have been accumulating over nearly three decades and the "substantial body of United States Supreme Court decisions applying equal protection analysis to state statutory schemes affecting the rights of non-marital children", of which the Gerhart Court spoke, has become a legal bulldozer, leveling to rubble the State judicial decisions and statutory schemes that would deny equal protection to illegitimate children.

    ORS 109.220, discriminates against illegitimate children by allowing the Court to discharge forever the "putative father" of an illegitimate child whereas the Oregon statutory scheme does not allow for such discharge in the case of legitimate children.

    Thus, the next question in our analysis is whether this discrimination bears a substantial relationship to the interests of the State of Oregon in enacting and maintaining such legislation. Unfortunately we do not have before us a party or a representative of the State that can present and advocate for those interests. In lieu thereof, we shall do our best by setting forth any and all such interests that have been advanced by other states and we shall add thereto insofar as we can reasonably conceive on our own.

    When considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment, U.S. Constitution, Amendment 14, § 1, varying levels of scrutiny to different types of classifications are applied. The threshold level requires that a statutory classification must be rationally related to a legitimate governmental purpose. San Antonio Independent School District. v. Rodriguez, (1973) 411 U.S. 1, 17. Classifications involving fundamental rights require a higher, more exacting scrutiny. Harper v. Virginia Bd. of Elections, (1966) 383 U.S. 663, 672. "Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy." Clark @ p. 461.

    To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective. Thus, we begin by examining the State of Oregon’s interest in the enactment of ORS 109.220.

    ORS 109.220 states:

"The judge of the juvenile court of the county in which the female referred to in ORS 109.125 resides may make such compromise or arrangement with the putative father of any child born out of wedlock relative to the support of the child as the judge deems equitable and just, and thereupon may discharge the putative father from all liability for the support of the child"

    This statute bears close resemblance to New York’s Family Court Act §516 discussed in Williams and Wisconsin’s Chapter 52, Stats. 1967 discussed in Gerhardt. We note, however, that 109.220 is not nearly as protective as §516. The key provisions of 109.220 provide that: 1) a lump sum settlement can be used to compromise future child support, provided that 2) a juvenile judge deems such compromise "equitable and just", and may then 3) discharge the putative father from "all liability" for child support.

    There are various "justifications" promulgated for this kind of treatment of illegitimate children: "to relieve the community's financial burden and to indemnify it from having to support an illegitimate child"; "provide illegitimate children with an additional option of support in the form of a lump-sum settlement provision"; "the state has an interest in promoting ‘legitimate family relationships’"; "condemnation of irresponsible liaisons beyond the bonds of marriage"; "protection of the family unit"; "difficulty of proving paternity"; and "allowing putative fathers to ‘buy their peace’ from future claims on behalf of illegitimate children."

    At common law the illegitimate child was deemed filius nullius, "the child of nobody". Hence, as filius populi, "child of the population", the obligation of support was not on the parents but on the community. To rectify this, many states enacted filiation statutes in order that paternity could be established. Prior to 1917, Oregon law imposed only the duty of support for an illegitimate child on the mother. In 1917, the Oregon legislature passed their "filiation statutes" (ORS 109.125 through ORS 109.230) wherein they enacted statutes similar to those that exist today, one of which imposed a legal duty of support on fathers of illegitimate children. Thus, since 1917, the State of Oregon has had no interest in discriminating against illegitimate children for the purpose of "relieving the community's financial burden", due in part to the enactment of the filiation statutes, and in part to the enactment of ORS 109.010 which states that "all" parents have a legal duty to support their children and further, ORS 109.060 which mandates that the legal relationships between parents and children are to be treated the same for all purposes regardless of whether the parents are married.

    ORS 109.220 does not provide illegitimate children with an "additional option" for support vis-à-vis a lump sum settlement. The Wisconsin Supreme Court thoroughly decimated this notion:

Although it is argued that Chapter 52, Stats. 1967, provided non-marital children an additional option in the form of a lump-sum settlement provision, it is an option that has in reality worked to the detriment of many non-marital children. It is, at best, an illusory benefit amounting to no benefit at all. It is, in reality, an additional burden. Similar to the procedural bars invalidated in the Clark line of cases, the lump-sum settlement provision deprives certain non-marital children the opportunity to obtain adequate support. Although Clark and the cases cited therein deal with statutory limitation bars to the filing of actions, the bar to seeking additional child support that results from a lump sum agreement works in precisely the same manner. Regardless of the label attached to the statutory bar, the result is the same. The non-marital child, unlike the marital child, is barred from seeking additional support, regardless of need. That is hardly fair to the non-marital child, much less constitutional. That is what the United States Supreme Court recognized in remanding this action, and that is what we recognize today. (Gerhardt @ pp. 571-572)

    Oregon clearly has an interest in promoting legitimate family relationships and in protecting the family unit and further, in condemning "irresponsible liaisons beyond the bonds of marriage." It is equally clear that the promotion of marriage also serves to promote long term and deliberate commitment, a benefit that undoubtedly would inure to children, even if divorce were to occur. Thus, the promotion of "legitimacy" in general, is without question, a valid, if not compelling interest. However, the question here is whether ORS 109.220 accomplishes that end. We contend that it does not.

    Upon scrutiny, 109.220 may very well promote the opposite result: illegitimacy. A man can have sexual relations and if pregnancy results, under Oregon law that man is responsible on a continuing basis for the support on the child. ORS 109.010. However, if that man is not married to the child’s mother, he can be discharged from "any other liability, now or in the future, for support of the child", under 109.220. Such a provision does not promote marriage or legitimacy. If anything, it promotes irresponsible liaisons by giving an incentive to the man who happens to be a "putative" father while denying the incentive to the "marital" father. It should be obvious that to encourage a "non-marital" father to "buy his peace" and avoid future claims from, or on behalf of, his non-marital children, does not deter illegitimacy.

    Nor, for the same reasons shown above, does 109.220 "protect the family interest" as is shown by the legislative history of the repeal of 109.220:

In exchange for a lump sum of money paid to the mother, the child is permanently deprived of a legal father and all the benefits that attach to that status, including rights to inheritance and rights to Social Security benefits should something happen to the father. (see testimony of Assistant Attorney General Young, supra.)

    To give such license as a "lump sum buyout" to "non-marital" fathers provides disincentives to the family unit and militates against the furtherance of that unit by "discharging forever" any and all liability for the support of the child. To touch the truth of this, one need only to review the factual history of the case before us.

    As a practical matter, the only plausible justification for 109.220’s discriminatory effect is found in the "difficulty of proving paternity". The legislative history of the repeal of 109.220 also bears this out by characterizing the typical case as one where the lump sum payment is taken in exchange for a dismissal of the paternity action without establishing paternity. It may well be true that many men did not want paternity established for a variety of reasons, and it is also true that the state and/or the mother had an exceptionally difficult burden in proving paternity. During the first six or seven decades of the 20^th Century, and while the paternity or filiation statues were emerging, changing their character from quasi-criminal to civil actions, proof of paternity was most often resident only in the mother and father and, in some extreme cases, where the mother had practiced excessive promiscuity, in neither of the two. Too often the corroborating evidence simply did not exist. Statutes similar to 109.220 served a useful purpose in that the mother, the Court, and the child, could at least salvage something if the putative father would cooperate by making a lump sum payment. In exchange for that payment, the putative father would be released forever from all future claims. It is easy to sense the desperation shrouding this transaction. It is also somewhat easier to accept the harsh, indeed "invidious" discrimination that was "visit(ed) upon the heads" of the children because of the irresponsible conduct of their parents. Thus, the difficulty in proving paternity, has historically, provided some justification for the discriminatory effect of 109.220. (See Gomez @ p.538)

    However, this justification has been steadily eroding in light of scientific advances in blood testing. (See Clark @ p. 463). Indeed, the advance of DNA testing has substantially reduced the problem of proving paternity, taking the controversy out of the dramatic theater of "he said - she said" and placing it into the scientific laboratories in search of genetic markers. In light of Clark, we think any such justification heretofore given because of "difficulty of proving paternity" cannot be sustained.

    The Oregon statute under review is very similar to the Wisconsin and New York statutes. The New York statute is even more protective of the discriminatory class than 109.220 in that it requires that certain public officials be put on notice (§516 (b) ) and further, it requires that either the mother or authorized representative of the child be a party to the agreement or compromise. ORS 109.220 has no such protective requirements. Yet, both the New York and Wisconsin statutes were declared unconstitutional. In the case of the New York statute, it could be saved only if the bar to remedy contained in §516 ( c ) was stricken and the judgment or decree then declared modifiable.

    The Fox Court recognized the conflict between 109.220 and 109.230. Inasmuch as the agreement in that case had not been judicially approved, the Court could not address 109.220 in detail. It is our conviction that if the Fox Court had the opportunity to review this or a similar agreement purporting to fall within the purview of 109.220, they would make the same or similar analysis as we have made herein. We also note that, of the three statutes that we have examined, the Oregon legislature was the first to repeal (1979), followed by Wisconsin (1981) and then New York (viable until declared unconstitutional in 1995).

    Thus, we hold that the discrimination against illegitimate children created by ORS 109.220 is not substantially related to any of the State’s interest and therefore denies equal protection under the 14^th amendment insofar as it bars modification of the judgment herein.

    Since our November 25, 1996 Opinion was entirely consistent with the foregoing analysis, it remains in full force and effect (including the attorney fees issue to be determined by the Chief Judge) and the Tribal Court shall place this matter on its’ docket within 30 days of the date of this Order for a trial or hearing on the merits to take place within 90 days of this Order unless a mutual stipulation of the parties requesting more time is filed and approved by the Tribal Court.

    Finally, this Court reserves jurisdiction in this matter for the purpose of determining whether sanctions should be imposed directly upon Mr. Hove, RAMONA’s attorney. While neither attorney cited relevant law in briefing the issues in our 1996 Opinion, we note that Mr. Irving followed our Order "to the letter" in briefing the issue on his Petition for Reconsideration. Further, his submission of the legislative history of the repeal of ORS 109.220 was most helpful and enlightening. On the other hand, Mr. Hove submitted two pages of typing that can only, most charitably, be characterized as "two pages of typing". We refer this matter to our permanent panel of justices to determine whether further action against Mr. Hove is warranted.

    The Clerk is instructed to renumber our September 24, 1997 Order as "Appeal # 217a" and our October 17, 1997 Order as "Appeal # 217b".

    IT IS SO ORDERED.

    Dated:______________________________

FOR THE FORT PECK COURT OF APPEALS:

By:___________________________________
GARY P. SULLIVAN
Acting Chief Justice

CONCUR IN PART B AND HOLDING:

_________________________________
PETER H. FURUSETH
Associate Justice Pro Tem
I dissent.

________________________________
DEAN WINKJER
Associate Justice Pro Tem

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