Alexander v. Com. ex rel. Mills

• Decision Date: 18 April 1986
• Parties: Ben E. ALEXANDER, Appellant, v. COMMONWEALTH of Kentucky ex rel. Lawatta MILLS, and David L. Armstrong, Attorney General, Appellees.
• Court: Kentucky Court of Appeals

Page 102

708 S.W.2d 102

Ben E. ALEXANDER, Appellant, v. COMMONWEALTH of Kentucky ex rel. Lawatta MILLS, and David L.

Armstrong, Attorney General, Appellees.

Court of Appeals of Kentucky.

April 18, 1986.

As Modified May 2, 1986.

G. Patrick Thompson, Brandenburg, for appellant.

David L. Armstrong, Atty. Gen., Frankfort, Paula Bierley, Asst. County Atty., Louisville, William L. Davis, Asst. Deputy Atty. Gen., Frankfort, Ky. for appellees.

Before the Court sitting En Banc.

HAYES, Chief Judge.

This is a consolidation of multiple appeals ¹ from a judgment of the Jefferson Circuit Court, which held that KRS 406.031, which establishes a four-year statute of limitations in paternity actions pursuant to KRS 406.021(1), is unconstitutional as failing to afford equal protection to illegitimate children. We agree with the reasoning of the circuit court, and we affirm.

Accordingly, the opinion of the lower court, written by Chief Judge Laurence E. Higgins, is adopted as the opinion of this Court as follows:

"The Commonwealth of Kentucky, on behalf of the mother, has filed this appeal from a final judgment entered by the Jefferson District Court dismissing this paternity action as being barred by the statute of limitations (KRS 406.031), in that same was not commenced within four years from the child's birth.

"In the interest of judicial economy, there is attached hereto as Addendum No. 1 ², a numerical listing of 152 additional appeals by the Commonwealth on behalf of the respective mothers, of final judgments entered by the Jefferson District Court dismissing these 152 additional paternity actions for the same reason. By reference, each of these additional appeals is made a part of the above style of the case, the same as if each were set forth verbatim above; and this opinion shall apply to all 153 appeals.

"In 1982, the Supreme Court of the United States, in the case of Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982), held that a Texas statute of limitations providing for one year for the filing of a paternity action was unconstitutional in violation of the Equal Protection Clause, which requires that such a statute (1) must provide for a sufficient time to present a reasonable opportunity to assert the claims, and (2) any limitation must be substantially related to the State's interest in avoiding the litigation of state or fraudulent claims.

"In 1983, the Supreme Court of the United States, in the case of Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983), held that a Tennessee statute providing for a two-year limitations period was unconstitutional, in that it did not provide illegitimate children with an adequate opportunity to obtain support, and clearly did not substantially relate to the State's interest in avoiding litigation of stale or fraudulent claims. The Court added that a three-year statute of limitations would not be acceptable.

"In November, 1983, the Supreme Court of Kentucky, in the case of Commonwealth ex rel. Lepard v. Young, Ky., 666 S.W.2d 735 (1983), basing its opinion upon the premises set forth in the aforesaid decisions of the Supreme Court of the United States, held that Kentucky's statute of limitations (KRS 406.031) providing for a three-year limitations period failed to afford equal protection to illegitimate children and was therefore unconstitutional.

"In 1984, the Kentucky General Assembly, following the demise of Kentucky's three-year statute of limitations as aforesaid, enacted the present KRS 406.031 (which is the statute in question here) and which provides for a four-year statute of limitations.

"As long ago as 1979, the Florida Supreme Court, in the case of State, Dept. of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979), held Florida's four-year limitations statute in paternity actions unconstitutional under the Equal Protection Clause; and in 1983, the Supreme Court of Oregon, in the case of State ex rel. Adult and Family Services Division v. Bradley, 295 Or. 216, 666 P.2d 249 (1983), held Oregon's six-year limitations statute in paternity actions unconstitutional.

"The over-all issue presented in these appeals is whether a child born out of wedlock can be treated differently from a child born in wedlock. Up until 1968, children born out of wedlock were treated as though they had no rights at all, as though they did not exist. In 1968, the case of Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), for the first time, the Supreme Court of the United States held that children born out of wedlock were not "nonpersons," and were entitled to the protection of the Equal Protection Clause of the 14th Amendment to the United States Constitution. In a long line of cases thereafter, the Supreme Court has upheld the rights of children born out of wedlock in every field of law brought before it. Time and again, the Supreme Court had held that children born out of wedlock must be accorded the same rights as children born in wedlock. Following Levy, supra, the Kentucky General Assembly has enacted statute after statute conferring...