‘In general, a state Attorney General may institute such suits as he deems necessary for ... the protection of public rights.’
How later courts described this case
- ‘In general, a state Attorney General may institute such suits as he deems necessary for ... the protection of public rights.’
- “proper method of enforcing spousal responsibility is through the state spousal support statute[s]” at 1232
Written by the judges who cited it.
The opinion
PELL, Circuit Judge,
dissenting in part, concurring in part.
A result of the majority opinion reduced to a simple statement appears to me to be as follows. A is in a nursing home. Part of the attendant expense are paid by the state. A’s spouse is legally obligated to pay for A’s support which in this case would be the amount above that paid by the state. A’s spouse has income sufficient over and above his or her own needs to pay the amount of the nursing home bill the state has not paid. A’s spouse does not wish to do so. A’s spouse does not have to do so, and the state has to pay the whole cost.
*1234 I do not consider it an answer to say that the state can take action against the spouse to recover that which the spouse was legally obligated to pay. I think it unrealistic to think that the state will engage in a multiplicity of continuing individual lawsuits to recover the money that it should not have had to pay out in the first place. Under the majority opinion, there is an open invitation for the spouse to decide that he or she does not wish to make the excess payment. In this era of inflation, and giving consideration to the human inclination not to pay out money when one doesn’t have to, I think it reasonable to conclude that few would decline the invitation.
Unfortunately, and with the greatest respect for the reasoning expressed in the majority opinion, it appears to me that once more a roadblock has been placed in the way of a reasonable and legal endeavor of state authorities to curtail unnecessary expenditures of public funds in social programs. I think the district court correctly struck down the “deeming” test, but provided a reasoned alternative to the state whereby the costs would be borne as they should be, I would adopt the opinion of the district court on this aspect of the matter as the opinion of this court, and therefore respectfully dissent from the majority opinion which overrules that part of the district court opinion.
I also agree with the district court’s denial of attorney fees. The majority opinion in remanding on this issue indicates that fees are allowable under 42 U.S.C. § 1988 . That section, however, provides for fees where actions are brought to enforce a provision of section 1983 of the Civil Rights Act. Elsewhere the majority opinion in finding jurisdiction relies only on 28 U.S.C. § 1331 , which would not seem to encompass claims under section 1983, which claims are covered only under 28 U.S.C. § 1343 .
I otherwise concur in the majority opinion.