Jurisdictional Statement — Shapiro v. Solman

a3 * aIQwreow SOD AAB INE bn niall Se Lacan AT eth IO NY tS pea, dsho OW ry a

hats eel ; FILED

PHEME TOURE 1%. & a 2] EG tena

: N. 9 1969

i he ’ 2 JOHN F.-DW%, CLERK

‘Supreme Court of the ‘Muited States

- OCPOBER TERM we 96 g

ho

BerNaRD SHapPiro, Welfare Commissioner of

State of atari

| Appellant, —

Vv.

Epna SoLMAN, Et Al

( Apellees

¥ ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF CONNECTICUT

JURISDICTIONAL STATEMENT

RoBerT K. KILLIAN

Attorney General

30 Trinity Street

Hartford, Connecticut |

Francis J. MacGRrecor

Assistant Attorney General

76 Meadow Street

East Hartford, Connecticut

’

.

«

~

.

.

”

|

SUBJECT INDEX

pa Appealed From o...cccccccceccenn AGS AERA ee

Opinion ee oe lssicaaail

Jurisdiction ........ Nic eacame ee a ae

Statutes Involved ................ $e Fea SUC aries 3 gun

Questions Presented oo... : ieleacans eamekiae Luisieaeaiahieadtenle

Statement of Facts .................... siledesbihiaiaantip act dedmetiiacatata lee

The-Questions are Substantial LEP WR ENDED ORAS CON esas iy

‘ik

II.

III.

IV.

Whether iy Tartaglio v. Department of I & A,

Division of Public Welfare, 246 A 2d 483; cer-

tiorari denied U.S. Supreme Court, April 28,

1969, the issues of this case have already been

. decided favorably for the present appellant. .....

Whether Section 17-87 (a) of the Connecticut

General Statutes is unconstitutional because it

allegedly violates the 14th Amendment to the

United States Constitution o.com sain

A. The alleged equal protection violation ........

B. The alleged due process violation. ...................

Whether Section 17-87 (a) conflicts with the

Social Security Acts ........... Eek O lit ters PL cede!

Whether Section 17-87 (a) conflicts with the

United States Supreme Court decision in _—

65 8 Cif Peeenneeen een ceeoee

VI.

by not allowing téstimony in the Lower Court

as to the willingness) before rnfarriage of the

stepfathers to care for and support the step-

children to be; and Second, by not allowing

appellant to show that these stepfathers were

the persons financing the divorces and ins fact

- breaking up the marriages of the appellees ....... 11

Could the Court grant damages to the appellees: _

when it found no unconstitutional action on the

a = ae... a, @&

III © seecistanciaenedbeisoamtocbes OME Ae: NANT aC eI 13

,

Appendix

A.

Opinion of the United States District Court,

District of Connecticut ............ ninth sicsiabsias | 14

‘ Connecticut General Statutes, Section 17-87 (a) 25

I oiscasceccticelllnsteccctaenmcacciinn aa a

re)

LP

’ TABLE OF CITATIONS :

CasEs Crren; em er i Ti

Pe Federation of Labor v. Watson, 327 U.S. 582 - 2

Anderson National a v. Luckett, 321 da ae 8

Breithaupt v. Abram, 352 U.S. 482 (00000000 8

Douglas v. City of Jeannette, Pa., 130 F ad 653; iis

319 U.S. 157 ............ RE CGE OE AN AER UTI ed 8

Ferguson v. Skruge, 312 U.S. 726 & Crane : te insniccmmnaddebine 7

King v. Smith, 392 U.S. 309 0... eevee 3, 5, 9, 11.

Laine 9: Miadk . Wae en Kua eran AE |

Monaco Vv. Mississippi, 292 U.S. 490 ......... Fone nOn oe 12

‘Mire V. Dowd, 354 U.S. 457 ................ 7 eshte Scelidkeedasatehassien “6

New York, ex parte State of, 256 U.S. 490 ...... vn 12

Percy v. Montgomery - ae : . Sooas aes 9

Rockin v. California, 342 U.S. 165 occu Je. 9

Tartaglio v. Department of I & A, Division of Public Wel-

fare, 246 A 2d 483 ............ ERRORS ete ' 3, 5, 8, 12

United States v. Georgia Public Service Commission, 371 |

RRR RRR Rrra teers NNR Re falar ik Rane 2

A ~

STATUTES: CITED

28 USC. 1343 "es cake NT ihn sates me 2

iv

fe ae a NO EE }

eels we. aiecanaii

nus im eters ee A

88 cis caesctieesteit crescent . Poesia igevasinicalle

Section 17-87 (a) Connnnthadd General Statutes sae is 2,

REGULATIONS: Crrep

45 C.F.R. 203.1; 33 Fed. Reg. 11290 eee ae |

baa

=

v

e ;

In the a +

4

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1968

No.

BERNARD SHAPIRO, Welfare Commissioner of

State of Connecticut |

| Appellant, \..

v.

. Epna Soiman, Et Al

Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF CONNECTICUT |

© EF

JURISDICTIONAL’ STATEMENT

Judgment Appealed From |

Appellant, Bernard Shapiro, Commissioner of Welfare,

State of Connecticut, appeals from the final judgment of the

specially-constituted United States District Court for the Dis- .

trict of Connecticut. Appellant submits this statement to show

that the Supreme Court of the United States has jurisdiction

of the appeal and that substantial questions are presented.

OPINION BELOW

The Opinion of the United States District Court for the

District of Connecticut which is the subject of this appeal is

not yet reported. A copy of the Opinion is attached hereto as |

Appendix A.

2

_, Jarisdiction =~

This action was brought by the appellee (plaintiff) in

the U. S. District Court for the District of Connecticut under —

42 U.S.C. Sections 1983 and 1988 and 28 U.S.C. 1343 (3) to .

declare Chapter 299, Section 17-87 (a) of the .Connecticut ~

General Statutes unlawful and unenforceable as it contra-

venes the United States Constitution, and it ,enjoins the

appellant (defendant) from enforcing said’ statute against

the appellees (plaintiffs), and it gives the appellees (plain-

tiffs) money damages because the enforcement of said statute

has impaired her rights under Article IV,, Section 2 (1) and

Article XIV, Section 1.of the United States Constitution.

A special inte judge court .was snvsiiale to determine

the cause pursuant to 28 U.S.C. Section 2281 et seq. In due

course the matter was heard and an opinion was rendered on

_ «. April 10, 1969 in favor of the appellees (plaintiffs) and a

judgment pursuant to the opinion was entered on April 11,

1969 in her favor. From this pegmant the appellant (defend-

ant) has appealed.

te

The jurisdiction of the Supreme Court to review by direct

appeal is conferred by 28 U.S.C. 1253. The following decisions

sustain the jurisdiction of this Court to review a judgment on

digect appeal from a three judge court:

United States v. Georgia Publie Service Commission, 371

U.S. 285, 287. '

“American Federation of Labor v. Watson, 327 U.S. 582,

591. *- ; é ,

- Statutes Involved |

Section 17-87 (a) of the Connecticut General Statutes is

the statute involved and this statute is set forth in Appendix ~

B which is attached nasete. \

3.

« Questions Presented _ '

The following questions are presented by this appeal.

A. Whether in Tartaglio v. Department of I & A, Divi-

sion of Public Welfare, 246 A 2d 483; Certiorari denied U.S.

Supreme Court, April 28, 1969, the issues of this case have

_ already been decided favorable for the present appellant.

_. B. Whether Section 17-87 (a) is unconstitutional be-.

cause it allegedly violates the 14th Aniendinent Section I of

the United States Constitution.

C.. Whether Section 17-87, (a) conflicts with the Social

Security Act particularly the Sections in 42 U.S.C. 601-609.

D. Whether. Section 17-87 (a). conflicts with the

— Court decision i in King v. Smith, $920. S. 309.

E. Whether the three judge court e (4) -by not

allowing testimony ‘in the ‘lower court as to the willingness

before marriage of the stepfathers to assume the support and -

care of the stepchildren to be. (2) by not allowing the appel-

- lant to show that the stepfathers were the persons who fin-

anced the divorces and in fact broke up the marriages of the

appellees.

me Could the Court grant damages to the appellees in

the present case. — tly

*

Statement of Facts

1. The appellees were the supervising relatives and the

beneficiaries of Connecticut’s aid to dependent children pro-

gram until the remarriage of hia adult female appellees to .

their present husbands.

Since the marriage'to the present stepfathers, the appel-

lant has either taken the children of these women off the aid

4

_ -to dependent children program or reduced the welfare grant

. for these children below the amount that the child would have

received if its mother had not remarried and was still on the

—

aid to dependent children program.

3. The present stepfathers have now expressed the opin- ..

ion that they are not willing to support the stepchildren of

_ their respective marriages. _

4. The appellant, pursuant to Section 17-87 (a) of the

Connecticut General Statutes will give no financial assistance

to the appellees if their income in the home is above the wel-

fare standards for that area plus additional allowances as .

‘setup.in Manual’ Volume I, Chapter 3, Section 345.3 of the

Social Services Policies of Public Assistance.

5. If the income in the appellees’ home is below welfare

standards, the defendant welfare commissioner will give suffi-

cient aid to bring it up to the standards _ additional

allowances. _ . : .

6. Under Section 17-87 (a) a stepfather with a family

consisting of himself a wife and four stepchildren would be

entitled to get welfare benefits for the children if he brought

home a pay of less than $422.55 a month. This would be a

minimum figure in Connecficut. ,

7. Under Section 17-87 (a) the same stepfather with a

' wife and four stepchildren could be making in excess of $800

a month and still get welfare benefits for the stepchildren.

8. In Connecticut 75% of the women on welfare with

their children get remarried shortly after their divorce.

5)

The Questions are Substantial

I,

_ WHETHER IN TARTAGLIO v. DEPARTMENT OF

I & A, DIVISION OF PUBLIC WELFARE, 246 A -2d 483;

' CERTIORARI DENIED U. S. SUPREME COURT, APRIL 28,

1969, THE ISSUES OF THIS CASE HAVE ALREADY BEEN

DECIDED FAVORABLY FOR THE PRESENT APPELLANT.

On April 28, 1969, this Supreme Court denied certiorari

_in an appeal from the State of. New Jersey in Tartaglio Vv.

Department of I & A, Division of Public Welfare, 246 A 2d

483. The stepfather statute in New Jersey allows the welfare

commissioner to consider the stepfather’s earnings as avail-

able for the support of his stepchildren even though the state

law does not obligate him to furnish such support. This sta-

tute is very similar in language to Section 17-87 (a), the

statute in question in the present case. .

One of the grounds upon which reversal was sought in

the Tartaglio case was the decision in King v. Smith, 392 U.S.

309. A reading of the Three Judge Court’s opinion in the pres-

ent case would also indicate that their decision was based on

‘the King case. However in the Tartaglio case it is obvious that %

the present Supreme Court did not think that King v. Smith

was applicable in the stepfather cases.

II.

WHETHER SECTION 17-87 (a) OF THE CONNECT-

ICUT GENERAL STATUTES IS UNCONSTITUTIONAL

BECAUSE IT ALLEGEDLY VIOLATES THE 14th AMEND-

MENT TO THE UNITED STATES CONSTITUTION.

A. THE ALLEGED EQUAL PROTECTION

VIOLATION:

6 ’

Unless this Court is prepared to say that Section 17-87 (a)

is constitutionally suspect legislation on its face, it would

appear that the statute meets the four rules for testing dis-

crimination in social legislation set forth in Morey v. Dowd,

_ 354 U.S. 457, 463-464. First, the equal protection clause doés

‘not deprive the state of a wide scope of discretion and a stat-

ute having a reasonable basis will be upheld. Second, a failure

of mathematical nicety or creation of some inequality is not

offensive to the equal protection clause. Third, a classification

will be sustained, if any state of facts can be. reasonably con-

ceived that would sustain it. Fourth, the burden is on the at-

tacker to show no reasonable basis.

“The Connecticut statute has done only what stepfathers

traditionally have done before the days of state public assist-

ance. If support was not forthcoming from the natural father,

the stepfather supported, cared for, and disciplined the step-

children. In many cases the stepfather adopted the step-

children. If the Lower Court decision is upheld, the. step-

fathers would now have a monetary incentive not to adopt

these stepchildren, a result certainly not consistent with ‘ub- ‘

ie polityr

Connecticut. like most states has been faced with an in-

creasing burden of AFDC payments. It would seem because

of this that Connecticut should limit their aid to the really

needy and exclude children where there is a person who can

in fact- support and who has traditionally taken. up this

burden.

_ The Court should note from the Statement of Facts sup-

ported by the testimony in this case that the Connecticut law

was not aimed at poor stepfathers, who are aided under the

public assistance ‘program, something that a natural. father

- living with the family would not be entitled to.

Finally no evidence was presented by the appellees to

4 64

overcome the presumption of constitutionality which is re-

quired when social legislation, not racially aimed and not .

constitutionally suspect, is attacked. _

B. THE ALLEGED DUE PROCESS VIOLATION. >

The appellant assumes from the briefs filed by appellees

that this is a claimed violation of substantive due process. If

this is so, it would appear that the courts should not substitute

their own social and economic beliefs for the judgment of the

legislative body.

“Legislative bodies have broad scope to experiment

about the economic problems, and this Court does not sit to

subject the state to an intolerable supervision, hostile to the

basic principles of our government, and wholly beyond the

protection which the general clause of the 14th Amendment

was intended to secure.” Ferguson v. Skrupa, 372 U.S. 726,

730.

' The question does arise what protection did the due

process clause intend to secure? The appellant in the present

case claims that the due process clause means exactly what

the Court in Rockin v. People of California, 342 US. 165, 169

‘said it meant.

“Due process is a summarized constitutional guarantee of

respect for those personal immunities which are so rooted in

the traditions and conscience of our people as to be ranked

as fundamental or are explicit in the onenrt of ordered

liberty.”

: Certainly a stepfather, who knowingly enters a marriage

where there are children and takes care of these children,

upsets no traditional concept or no concept of ordered liberty.

Also there is no violation of the sense of fairness and decency

in requesting a stepfather who is financially able to support

8

his stepchildren. Actually the fundamental test in due process

is fairness as judged by the average member of the com-

munity not a Three Judge Federal Court. “Due process is not

measured by the yardstick of personal reaction or the sphyg-

mogram of the most sensitive person, but by the whole com-

munity sense of decency and fairness that has been woven

by common pene into the fabric of acceptable conduct.”

Breithaupt v. Abram, 352 U.S. 432, 436. See also Douglas v.

City of Jeannette, Pa., 130 F 2d 652, 657 & 658; affirmed 319

U.S. 157. ie

Finally the fact ‘that stepfathers have fulfilled this job of

‘supporting stepchildren for so many years should cause this

‘Court to be very reluctant in interfering with legislation that

merely codifies the status quo. . ie

“The fact that a procedure is so old as to have become"

customary and well established in a community is of great( es

weight in determining whether it conforms to due process

for ‘not lightly vacated is the verdict. of quiescent years’ ”.

Anderson National Bank v. Luckett, 321 U.S. 233, 244.

Tee hee : III. .

-. ‘WHETHER SECTION 17-87 (a) CONFLICTS WITH |

- THE SOCIAL SECURITY ACTS.. :

One of tie reasons the Three Judge Court reached its de-

cision was bécause of the HEW regulation which states that a

stepfather’s: income can only be considered if he is legally

obligated to support the children under a state law of general

_ applicability. 45 CFR 203.1, 33 Fed. Reg. 11290. By doing this

the Lower Court has evidently rejected this Court’s interpre-

tation when it denied certiorari in Tartaglio, Supra. Also there

is no language in the Social Security Law that remotely sup-

ports the HEW regulation. |

,

9

Finally the appellant would. urge the Court to

follow the rejection of this HEW regulation by fol-

lowing the same rationale that motivated the Three

Judge Federal Court for the Northern District of California.

In companion cases No. 50238, Lewis v. Stark, and No. 50285

Percy, et al v. Montgomery that Federal Court said that the

Social SecurityMAct, does not instruct states to consider only

resources guaranteed by the legal consequences of a marital aX

or biological relationship. Nor does the Act instruct the states

to consider only resources “whose receipt by the ‘child has

been proved.

IV.

WHETHER. SECTI 17-87 -(a) CONFLICTS WITH

THE UNITED STATES SUPREME COURT DECISION IN

KING V. SMITH, 392 U.S. 309. a.

In attempting to equate Section 17-87 (a) with the Ala-

bama regulation involving King v. Smith, Supra the plaintiffs

have ignored the historical and social realities of this country.

No community in | ames ever expected that the casual para-

, mour ofa a re would be expected to support her children

unless he were the father. In fact it would have been unusual |

and wholly unexpected for him to do so. But because of so-

ciety’s dislike for the type of conduct exhibited in the King

case the legislatures have passed various criminal statutes to

punish and discourage this flaunting of promiscuity in the

community. Alabama, with all these criminal stajites at her

disposal, attempted to impose a wholly artificial type of dis- ©

- couragement to this conduct, one without any historical pre-

cedence, and one that was aimed at the wrong people. Here

the victims were the children.

(

In contrast with this the community has always expected

that when a man‘entered into a marriage contract with a

n Aj

}0

woman who had prior children he was knowingly and will-

ingly undertaking the burden of supporting the whole family

to the hest of his financial ability if it were necessary for him

to do so. This Supreme Court from its own experience in life

must certainly be~aware that stepfathers in the ‘community

in which the individual judges grew up, brought up stepchil-

dren without any complaint because it was the accepted, —

proper, social standard...

ttn

In the same context a woman marrying a widower with

children clearly expected that she would handle all those

duties of the natural, mother. It would have been unusual for

a stepmother to say to her new husband that he get an outside

housekeeper to perform the tasks of taking care of her step-

children. Just as the hatural mother marries the stepfather

for the very purpose of support and help with the children so

does the widower with children get married. Thus if one fol-

lows the argument of the appellees to its logical conclusion,

it would seem that the state should furnish and pay for a

substitute housekeeper if the new stepmother were disinclined a

to take on her expected chores.

_ Another insurmountable problem that was created by

the Alabama regulation was the expectation that the para-

mour should furnish support regardless of his financial abil-

ity, thus ignoring the economic realities of life. The Connect-

icut statute explicitly takes this problem into consideration

and merely says that the stepfather’s income shall be taken

into consideration if the children apply for aid. It clearly

follows, if the standard set down by the welfare commissioner

shows that the stepfather has insufficient income to furnish

a decent way of life, then the State.of Connecticut will con-

tribute the difference or if necessary take up the entire bur-

den. If, however the natural mother marries a millionaire,

there is a reasonable expectation that he will be able to take

care of the children.

11

The Connecticut Statute was not passed to punish or dis-

courage anyone. The statute merely codified what was already

an accepted social fact, and actually the State of Connecticut

went even further by offering to ease any burden if it were

too heavy.

If the Lower Court decision in the present case is allowed

to stand the unfortunate result .will be that it is the Federal

Courts who will be actually determining who is needy for

purposes of AFDC, and it will be the Courts who will be im-

posing the eligibility requirements as to means. This certainly

runs counter_,to this Court’s statement in King, Supra, foot-

note 14, wheke the Court said “. . . and legislative history of

the act also makes it clear that the states should have the

power to determine who is needy for purposes of AFDC.” And

further along “thus the reports of the House Ways and Means

Committee and Senate Finance Committee make clear that

the _ are free to impose eligibility ne as to

means.’

mA }

WHETHER THE THREE JUDGE COURT ERRED:

FIRST, BY NOT ALLOWING TESTIMONY IN THE LOWER

.COURT AS TO THE WILLINGNESS BEFORE MARRIAGE

OF THE STEPFATHERS TO CARE FOR AND SUPPORT

THE STEPCHILDREN TO BE; AND SECOND, BY NOT

ALLOWING APPELLANT TO SHOW THAT THESE STEP-

FATHERS WERE THE PERSONS FINANCING THE

DIVORCES AND IN FACT BREAKING. UP THE MAR-

RIAGES OF THE APPELLEES.

_ During the trial the appellant called one John Hayes to

testify. The appellees conceded his qualifications and there

was no question that the records from which he was testifying

were admissible as business records. Appellees’ objection was —

based on confidentiality. However Section 17-83 (a) the con-

12

fidentiality statute waives confidentiality if the disclosure is

to carry out the purpose of the AFDC chapter. The purpose

of the testimony to be elicited was that the stepfathers could

support the stepchildren, and just prior to the marriage said

that they were willing to care for these children. This willing-

ness would have put the case within the facts of Tartaglio,

Supra. Another purpose of the offer was to show that in these

cases the stepfathers were financing the divorces and were

breaking up the marriage. Thus, if the appellees’ contentions

were upheld, the person breaking up the marriage will end.

up with a monetary gift from the ae 8 situation not par-

ticularly consistent with good public policy. It is the appel-

lant’s feeling that he should have been allowed to pursue the

testimony as to these facts.

VI.

COULD THE COURT GRANT DAMAGES TO. THE

APPELLEES.WHEN IT FOUND NO UNCONSTITUTIONAL

ACTION ON THE PART OF THE APPELLANT.

,

The Lower Court Three Judge decision was not based on

any unconstitutional action of the appellant but merely his

claimed failure to follow HEW regulations. The Social Secu-

rity Acts clearly ‘define what the punishment is if a state

does not follow the statutes. That state is deprived of its pro

rata share of federal aid. There is nothing else in the statute

about allowing welfare recipients to sue the state. It would

seem further that an award of money damages to the appellees

would be improper unless Connecticut had consented to be

sued for money damages in this type of action. Monaco v.

Mississippi, 292 U.S. 313, 324; Ex parte State of New For.

No. 1, 256 U.S. 490, 497.

13

Conclusion

‘The questions involved here are substantial and ought

to be resolved by this Court. This Court would have appeared,

to have Teached the opposite conclusion by failing to grant

- certiorari in Tartaglio, Supra. Also a similar issue has been.

decided in opposite to the pré$ent Three Judge Court by a

similar Three Judge Court in California. .

Respectfully submitted,

RoserT K. KILLIAN

Attorney General

% . 30 ‘Ttinity Street

— Hartford, ‘Connecticut

By

FRANCIS J. Martenion

Assistant Attorney General .

76 Meadow Street

East Hartford, Connecticut

14

APPENDIX A

United States District Court

District of Connecticut

DNA SOLMAN, on her own behalf and as

next friend of VANCE GOSMAN and JAMES

SOLMAN, on behalf of themselves and: all

others similarly situated ©

? —_— Vi

BERNARD SHAPIRO, Commissioner of : *

* Welfare, State of Connecticut

eabiites Smith, C. J. and Blumenfeld and Clarie, D. JJ.

-MEMORANDUM OF DECISION .

Blumenfeld, District Judge:

_ Plaintiffs bring this class action’ to challenge the validity

of a statute relating to the administration of that part of

Connecticut’s comprehensive scheme of public assistance re-

lating to Aid to Families With Dependent Children (AFDC).

See Conn. Gen. Stats. §§ 17-84 to 17-107.? They are all recip-

'Prior to the trial of this action several plaintiffs intervened in

rt temporary restraining orders a inst termination

refused to

ble to the class, thereby making a te final

injunctive relief or correspond relief with to class as

ttee "

‘OSC Rule 23, at 1605 (Supp. III 1968): “Illustrative (of subsec-

tion (b)(2)} are vassone ons in the civil- ts field where a

py unla y against a

one By one Ww po are incapable of. c cmeniaen

Because this action falls under su on (b) (2), the notice require-

_ments specified in subsection (c)(2) are not applicable.

t along with ev other sta cipates in the federai

Pons ernment’s Aid ¢ to Families yp a spendent Children ogram,

under ev the state gs —— ‘ peymenss Se for federally

sporoven plans ~_s pte ate th children. See

U.S.C. $9601, 602

15

ients of AFDC benefits which the defendant has threatened

to curtail in whole or part in each case because the needy

children have a stepfather living in the house. Specifically,

they challenge § 17-87(a) insofar as it provides that in deter- -

mining the need of an AFDC recipient who has a stepparent,

the income of the stepparent shall be considered as available

for the support of the recipient. Plaintiffs contend that-since

a stepparent in Connecticut is not legally obligated to support

the stepchild, see Conn. Gen. Stats. § 17-320, § 17-87(a) is

inconsistent with Part A of Subchapter IV of the Social Se-

curity Act, 42 U.S.C. §§ 601-610, with federal regulations

-promulgated thereunder, 45 C.F.R. § 203.1, and with the

due process and equal protection clauses of the fourteenth —

amendment. _ +

_ ‘The cause of action is based on 42 U.S.C. § 1983 and jur-

isdiction is founded on 28 U.S.C. § 1343.3 Since plaintiffs seek

an injunction restraining enforcement of a state statute on

constitutional grounds that are not insubstantial, cf. Utica

Mut, Ins. Co. v. Vincent, 375 F. 2d 129, 130 (2d Cir.), cert.

denied, 389 U.S. 839 (1967), a three-judge district court has

been convened pursuant to 28 U.S.C. §§ 2281, 2284.4 |

3See a v. Smith, 392 U.S. 309. (1968). In that case, almost iden-

tical with the present one, jurisdiction was founded on §§ 1343(3) .

—o pe? ), ~ Te an equal protection claim was presented. The Court

po out:

“We intimate no views as to whether and under what circum-

stances suits challenging state AFDC provisions only on the

— that they are inconsistent with the federal statute may

brought in federal courts.” Id. at 312 n.3.

Thus, even though the case was decided on statutory grounds alone,

the presence of a constitutional-claim was sufficient to resolve the |

jurisdictional question. - : : ;

4In King. v. Smith, 392 U.S. 309 (1968), the Supreme Court held

that a. three-judge district court was Srapeey convened. Where

both substantial constitutional claims and claims based on a-conflict

between state and federal laws are asserted, as here, a three-judge

district court is required even if the constitutional issues are not

reached and the injunction is issued on supremacy grounds alone.

Brotherhood of Locomotive Eng’rs. v. Chicago, R. I. & Pac. R. R.,

382 U.S. 423 (1966); see Florida Lime & Avocado’Growers, Inc, v.

Jacobsen, 362 U.S. 73 (1960).

16

The portion of the statute challenged, Conn. Gen. Stats.

§ 17-87(a), provides in part: :

“In the determination of such need [of the dependent .

children], the ability and income of a stepparent shall be

_ considered as available for the support of the family, in-

- cluding himself, his wife, and his minor stepchild or

stepchildren residing with him...” ~~ _—_.

The statute is implemented by a regulation which provides

. in part:

“When an employed stepparent is in the home, eligibility

in regard to the need requirements exists only if the step-

parent’s income together with other available income is

insufficiest to meet total family need ....”5 1 Conn.

State Welfare Manual § 345.3. :

Under the scheme of cooperative federalism for carrying

out the AFDC program, state plans for distribution of aid

must conform with federal laws and regulations, in order for

the state to receive federal funds. 42 U.S.C. §§ 602, 1302. One

such regulation is 45 C.F.R. § 203.1, which reads in part:

“(a) A State plan for aid and services to needy families

with children under part A of title IV of the Social Se-

curity Act, to be approved under section 402 of such Act

(42 U.S.C. 602), must provide that the determination

‘whether a child has been deprived of parental support

or care by reason of the death, continued absence from

the home, or physical or mental incapacity of a parent,

or (if the State plan includes such cases) the unemploy-

ment of his father, will be made only in relation to the

child’s natural or adoptive parent, or in relation to a

SThere is no provision in either the state statute or regulation that

allows the recipients to show that the step-parent’s income is in

actuality not being used for the children’s support.

17

child’s stepparent who is ceremonially married to the:

child’s natural or adoptive parent and is legally obligated

to support the child under State law of general appli-

cability, which requires stepparents to support step-

children to the same extent that natural or adoptive

parents are required to support their children.

“(b) The inclusion in the family, or the presence in the

home, of a ‘substitute parent’ or ‘man-in-the-house’ or

any individual other than one described in paragraph

(a) of this section is not an acceptable basis for a finding

of ineligibility or for assuming the availability of income ~

by the State. . . [Ijn the consideration of all income

and urces in establishing financial eligibility and

_ the is at of the assistance payment, only such income

as is actually available for current use on a regular basis

will be considered, and the income only of the parent de-

scribed in paragraph (a) of this section will be considered

available for children in the household in absence of |

proof of actual contributions.” 45 C.F.R. § 203.1, 33 Fed.

Reg. 11290 (emphasis added).

This federal regulation was issued in the wake of the

Supreme Court’s decision in King v. Smith, 392 U.S. 309

(1968). In that case the validity of Alabama’s “substitute

father” regulation was challenged. Under it, Alabama had

denied AFDC payments to the children of a mother’ who

-cohabited with any single or married able-bodied man. Ala-

bama’s regulation was based on an interpretation it gave to

the definition of “dependent child” in 42 U.S.C. § 606(a): “a

needy child (1) who has been deprived of parental support

or care by reason of the death, continued absence from the

home, or physical or mental incapacity of a parent, and who

is living with [any of several listed relatives] ....” (Empha-

sis added.) Alabama considered the “substitute father” not

to be an absent ‘ ‘parent” within the federal statute, and con-

18

sequently held that a child in such a home did not qualify as

“a dependent child.” }

The Supreme Court rejected this analysis. It noted that

under Alabama law a “substitute father” was not among

thoselegally obligated to support the child. The Court went

on: |

“The question for decision here is whether Congress |

could have intended that a man was to be regarded as

a child’s parent so as to deprive the child of AFDC elig-

ibility despite the circumstances: (1) that the man did

not in fact support the child; and (2) that he was not ©

“legally obligated to support the child. ... . We think the

answer is quite clear: Congress must have meant by the

term ‘parent’ an individual who owed to the child a state-

imposed legal duty of support.” 392 U.S. at 329.

It follows from this detailed analysis by the Supremé

Court that Connecticut’s statute providing that “the in-

come of a stepparent shall be considered as available for the

support of his minor’. . . stepchildren residing with him”

squarely contravenes the regulation which states that that “is

not an acceptable basis . . . for assuming the availability of

income by the State.” Connecticut does not have a state law

of general applicability imposing an. obligation on a step-

. father to support his minor stepchildren. Ladd v. Welfare

seg r, 3 Conn. Cir. 504, 507 n.5 (1965). See Conn. Gen.

tats. § 17-320.

In an attempt to avoid the full thrust of King v. Smith,

the state asks us to focus attention on a different provision of

the federal statutes where parental relationship is not a factor

' bearing upon a child’s qualification for benefit payments but |

is claimed to affect only the amount of such payments. The

section is 42 U.S.C. §602(a) (7), the relevant portion of

which provides that the’state welfare agency “shall, in deter-

“ae

19

mining need, take into consideration any other income and

resources of any child or relative claiming [AFDC], or of any

other individual (living in the same house as such child and

‘relative) whose needs the State determines should: be con-

sidered in determining the need of the child or relative claim-

ing such aid .. .” (Emphasis added.) Using this text, the state

argues that since the income of the stepfather living in the

home is taken into account only in determining the “total

family need,” it is not relying upon the stepfather’s income -

to find a stepchild ineligible for assistance under § 606(a),

and, therefore, King v. Smith is inapposite.

Since the state relies upon this emphasized portion of

§ 602(a) (7) to support the action it has taken against these

plaintiffs, the question of its applicability must be examined.

If the theory of the state rests on the conclusion that the needs

“ofxany other individual (living in the same house as such

child ... ) whose needs the State determines should be con-

sidered in determining the need of the child” permit it to take

into account the income of the stepparent to reduce poe

continue the payments for aid to stepchildren, it misreads“ffe

statute. The textually interlocked “other individual” has a

special meaning.

Essential Person

Of course, what standards of welfare assistance a state

may adopt which will qualify for its receipt of federal funds

depends on the Social Security Act. A state’s plan may pro-

vide for certain special-needs, not necessary for all individ-

uals. Section 602(a) (7) recognizes the validity of such a _

type of special need.° It takes into account cases where it is

6The portion of § 602(a)(7) emphasized above was introduced into

the Act by the amendment of 1968. Pub. L. 90-248, § 202(a). The

Report of the Committee on Ways and Means describes the new

. provision and states that it “makes no change in present law.’

.R. Rep. No. 544, 90th Cong., Ist Sess. at 174 (1967).

20. _

found desirable to provide a qualified recipient of assistance

with something more than what is necessary for mere physical

subsistence. An example would be a case of a child whose .

mother works and there is also another child in the family

above the age for eligibility for aid to dependent children.

However, the state may consider that the continued presence

in home of the older child is essential to the well-being of the

younger child (as distinguished from the necessaries to sup-

port life) and serves to strengthen family life, and thus may

include his needs in the family budget. Although the need of

the older child is met, it is not a “recipient” of benefits.

Thus; in such a case, under § 602(a) (7) an individual

living in the house whose needs and income “should be con-

sidered in determining the need of the child or relative claim-

ing such aid” is called by those in charge of administering

AFDC an “essential person.” The Department of Health, Edu- -

cation and Welfare’s (HEW) “essential person” rule per-

mits a state “to establish the need of the individual on a

basis that recognizes as essential to him the presence in the

home of other needy persons... .” IV Handbook of Public

Assistance Admin. § 3131(4). Accordingly in any case where

‘there is a decision that an “essential person” is necessary, al-

though ineligible in his own right for public assistance, his

needs could be “comprehended in the [eligible] individual’s

need.” Id. The effect of the rule, therefore, enlarges the elig-

ible: individual’s budget to comprehend the needs of the

“essential person” as well as his own. In other words, needs

and income of an “essential person” are taken into account

only to determine whether the recipient’s budget should be

enlarged. One who serves as an “essential person” may or

may not have needs of his own depending on his resources

_ or income, but he is not the relative or child claiming aid, and

is not, therefore, a “recipient” of aid. The answer to whether

.one who happens to be an “essential person” is obligated to

provide support for the recipient must be sought elsewhere.

me e

Furthermore a state’s plan which provides a basis for

recognizing that another person’s presence in the home is

essential to the well-being of a recipient is one thing. Who

decides whether that particular individual is essential is

another. HEW’s “essential person” rule provides:

“A State plan ..: must...

“[6] (ii) Provide that the decision as to whether any

individual will be recognized as essential to the recip

ient’s well-being shall rest with the recipient.” Regula-

tions on “Need-Requirements for State Public Assistance

Plans,” item 3.B.6, Interim Policy Statement No. 4 (33

Fed. Reg. 10230 (1968) ). —

In these cases, each of which involves a stepparent, only

the children and the mothers are recipients, i.e., “claiming

aid,” and in none of them has a recipierit chosen a stepfather

as an “essential person.” The defendant does not have the

right to designate or to assume that a stepfather is an essen-

tial person to invoke the operation of § 602(a) (7).

Resources of Child or Relative.

The alternative clause in the section furnishes no support

for the state’s theory. Stripped of any characterization of the

stepfather as an “essential person,” the state may not assume

that the stepparent’s “income’ and resources” are available for

the support of the child under §.602(a) (7). In adverting to

this same section of the Act in Kixg v. Smith, the Supreme

Court gave a narrow reading to “resources of any child or

relative.” It stated: .

“Regulation of HEW, which clearly comport with the

statute, restrict the resources which are to be taken into

22

account under § 602 to those ‘that are, in fact, available

to an applicant or recipient for current use on a regular

- A ws Caing iV Handbook of Public Assistance

' Admin. § 313 ]- This regulation properly excludes

' from consideration resources which are merly assumed

to be available to the needy individual.” 392 U.S. at

319 n. 16 (emphasis added). :

In light of this interpretation of § 602(a) (7) by the Supreme

Court, the state’s reliance on that clause of that section is mis-

placed.

With respect to children who are beneficiaries of AFDC

payments, the income of a stepparent cannot be assumed to

be available to his stepchildren living in the same home with

him. The stepfather is neither a “relative claiming aid” nor

an essential person. His income or his.resources may be taken

into consideration only if they are actually available for the

use of the children. To permit the Welfare Commissioner to

predict that every stepfather will support his minor step-

- children, and even more demandingly, to conclusively pre-

sume that he will do so would also be at odds with the federal

regulation. Where the support of a child is at stake, the only

relevant circumstance which may relieve the state of its

duty to provide AFDC support for a needy child is whether

its stepfather did in fact support the child.

There is no doubt that the state may properly take into

account amounts actually expended by the stepparent in

support of the stepchildren. See King v. Smith, 392 U.S. at

319. But the flat provision of the-Connecticut statute requires

that “the income of a stepparent shall be considered as

available for the support of the . . . stepchild” whether so

used or not. Since the stepparent is not under a legal duty —

to support the stepchild under Connecticut law (and be-

cause the stepparent may not be assumed to be an “es- .

&

“i 23

sential person”), Conn. Gen. Stats. § 17-87(a), on its face

and as applied, is in contravention of 42 U.S.C. § 602(a) (7)

as interpreted in King v. Smith and of the regulations issued

by HEW. See King v. Smith, 392 U.S. at 333 n. 34; Ivanhoe

Irrigation Dist. v. MeCracken, 357 U.S. 275, 295 (1958). This

conclusion makes it unnecessary to consider plaintiffs’ con-

stitutional claims. See King v. Smith, 392 U.S. at 333. Ac- .

cordingly, the court DECREES and ADJUDGES that judg-

_ ment enter permanently enjoining the defendant from with-

holding or reducing payments to the plaintiffs and other

members of the class on the ground that they are barred

from receiving such assistance under the stepparent pro-

visions of § 17-87(a) of the Connecticut General Statutes or

the regulations promulgated thereunder to the same extent

and on the same terms as now provided was the temporary

injunction heretofore issued.

- Retroactive Damages

In addition to injunctive relief, the plaintiffs seek retro-

active payments of amounts wrongfully withheld pursuant

to § 17-87(a). Connecticut welfare’ regulations applicable to

fair hearing procedures by the state welfare department

' provide that “a decision [at a fair hearing] in favor of ap-

‘. pellant applies retroactively to the date the incorrect action

was taken.” Conn. State -Welfare Manual § 6300(7). See IV

Handbook of Public Assistance Admin. § 6200(k). These pro-

- visions reflect the federal policy: as stated by HEW in a

letter to all state welfare agencies:

“Federal policy. provides that effective July 1, 1968,

. corrective payments are to be made retroactively to the

date incorrect action was taken when a hearing decision

is favorable to the claimant. . . .” State Letter No. 1048,

| from: the United States Sibiu of Health, Educa-

ae tion and. Welfare to State Agencies Administering Ap-

- proved Public Assistance Programs, Sept, 30, 1968.

’ 24

Since the state welfare agency has already established —

a procedure whereby retroactive damages for. payments

‘wrongfully withheld may be determined, the petitioner’s

_. prayér for damages is remanded to the Connecticut Depart-

ment of Welfare for its determination in light of this decision

and the applicable regulations of the United States Depart-

ment of Health, Education and Welfare and the Connecticut

Department of Welfare. See Robinson v. Washington, Civ. No.

‘ 3399-66 (D. D.C. Nov. 18, 1968)..

. Dated at Hartford, Connecticut, this day of

April, 1969.

J. JOSEPH Suir

United States Circuit Judge

M. JoseEPH BLUMENFELD

United States District Judge

_—

ya EMMET CLARIE

United States District Judge

25

APPENDIX B

Section 17-87 (a) General Statutes of Connecticut Revised

to 1968.

(a) Aid shall be granted on behalf of such dependent

child or children and for the needs of such supervising rela-

tive to any such relative eligible therefor under this part

to an extent adequate to enable the relative caring for such

child or children, together with all other available income

and support, to maintain a standard of. living in the home }

reasonably compatible with health and decency for such child

or children. In, the determination of such need, the ability

and income of a stepparent shall be considered as available

for the support of the family, including himself, his wife,

arfd his minor stepchild or stepchildren residing with him,

and a stepparent is defined ‘for the purposes of this section

as one who marries the parent of a minor child or children of

whom such stepparent is not the actual parent. The amount

of the aid shall be determined in accordance with standards

of assistance established by the commissioner.

———

~— =

26

APPENDIX C

United States District Court

District of Connecticut

' EDNA SOLMAN, on her own behalf and as

next friend of VANCE GOSMAN and JAMES

* SOLMAN, on behalf of ‘themselves and all Civil

—Vv.— 12,790

BERNARD SHAPIRO, Commissioner of

Welfare, State of Connecticut

JUDGMENT.

The Court eer filed its Memorandum of Decision on

April 10, 1969, directing that a permanent injunction enter

against defendant and that the prayer for retroactive damages

be remanded to the Connecticut Department of Welfare,

It is ORDERED, ADJUDGED AND DECREED

(1) That the defendant Bernard Shapiro, Commissioner °

of Welfare, State of Connecticut, his servants, employees,

attorneys and all persons in active concert and partic-

ipation with them-are hereby permanently enjoined

. from Withholding or reducing payments to the plaintiffs

and other members of the class similarly situated on the

ground that they are barred from receiving such assis-

tance under the stepparent provision of Section 17-87 (a)

of the Connecticut General Statutes or the regulations

a thereunder, :

(2) That minor members of the class, whose aid has

been terminated or reduced under said statute, be re-

stored to full assistance ufder Connecticut’s aid to ~

Families with Dependent Children Program and that

such assistance include full allotments for the following:

27

. Food, Clothing, Personal Incidentals, Household Supplies, .

Food Stamps, and Medical Assistance, and their pro-

portionate share of Cooking Fuel, Electricity, Hot Water,

Heat and Shelter,

(3) 7 That they be restored to any other assistance that

is available to recipients of Connecticut’s Aid to Families’

with Dependent Children Program, ~ .

(4) That plaintiffs’ prayer for retroactive damages for

payments wrongfully withheld is hereby remanded to

the Connecticut Department of Welfare for its determin-

ation in light of this decision and the applicable regula-

' tions of the United States Department of Health, Educa-

tion and Welfare and the Connecticut Department .of

Welfare. —~ : .

Dated at New Haven, Connecticut this 11th day of April,

1969, fA 3

y GiLpert C. EARL .

Clerk, United States Distriet Court ~~~

By Tuomas A. Grimes

Chief Deputy Clerk