Appelants Brief — Lascaris v. Shirley

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JUL 25 1974

MICHAEL ROUAK, JR..CLERE

Supreme Court of the United States

October Term. 1973

No. 73-1095

ABE LAVINE, individually and as Commissioner of the Department of

Social Services of the State of New York,

Appellant,

SYLVIA SHIRLEY. individually and on behalf of her

children, TAMMY LYNN and LISA MARIE, and on behalf of

all others similarly situated;

minor dependent

ELIZABETH ANDERSON, individually ang on behalf of her minor

dependent child. JOANNE, and on behelf of all

others similarly situated ;

JANE DOF, individually end on behalf of her minor dependent

child, KIRSTEN WYNN, and on behalf of all

others similarly situated,

and

JOHN LASCARIS. individually and as Commissioner of the

Department of Social Services of

the County of Onondaga,

Ox Aprear FroM THE Unitep States Distriet Court ror THE

NorTHERN Distkict of New York.

BRIEF FOR APPELLANT LAVINE

LOUIS J. LEFKOWITZ

Attorney General of the State

of New York

Attorney for Aptellant Lavine

The Capitol

Albany, New York 12224

Telephone. (518) 474-7178

Retn Kessrer Tocu ;

Solicitor General of the State ot New York

ALAN W. RUBENSTEIN i

Principal Attorney, State of New York

of Counsel

eee:

ee ae

INDEX.

So ge eer ere Teer rr ee Tre ee ce

UNNI SRLS oc DS at kor a ne ae wig a elke ea

Statute Involved of the State of New York ..........

Regulation Involved of the Secretary of Health, Edu-

qmtien Gad Weltare ...5 cc ices ccc cece eewcees

Statutes of the United States ..................0005-

ON ag ee eee rer er Tree errs.

Petal OF Ge TOME ngs ox cs bie sce eat ceeds

Summary of Argument ... 2... ccs cece ies

Point I. It is the responsibility of parents, not the

State, to support their children. The decision he-

low erroneously reverses this basic concept by

attributing to Congress an unexpressed intent to

PS SURE ered vets Sanrey tein ate Ga Rey ae ee tear

The Notice to Law Enforeement Officers

(NOLEO) Amendment of 1950 (42 U.S.C.

§ 602(a)(11)) did not shift parental support

responsibilities from parents to the State... .

The 1967 Amendments to the Social Security

Act (42 U.S.C. § 602(a) (17) (18) (21) (22)) did

not shift parental support responsibilities

from parents to the State ..................

42 U.S.C. § 602(a) (7) requires that the States

in determining need take into consideration

the income and resources of a child or rela-

tive claiming AFDC. In fulfilling such re

quirement, the State must take into account

“any” income and resources. The provisions

of section 602(a)(7) did not shift parental

support responsibilities from parents to the

State. On the contrary, such provisions are

recognition of such responsibilities and place

them upon the parents where they belong. ...

—- PW

PAGE

Point Il. New York Sociai Services Law § 101-a(2)

(3) operates within the legitimate sphere of State

AFDC administration and serves legitimate State

purposes, The State statute is valid even if it

is held to create a condition for assistance. ...... 38

NNN og aloe sia heb ap a a ele Cetechs b es Soe le ay 45

Appendix A—Statutes of the United States ......... 46

Appendix B—Brief in the District Court Concerning

EPR 55 ETE Cobar ears ee 49

CITATIONS.

CASES:

Charleston ve Woklgemuth, 382 F. Supp. 1175 (D.C.

Penn., 1971) affd. 405 U.S. 970 (1972) ............. 41

Doe vy. Gillman, 347 F. Supp. 482. (NLD. Towa, 1972)

modified 479 F. 2d 646 (Sth Cir., 1973), petition for

certiorari pending sub nom. Burns v. Doe, No. 73-

UN eid a ees w Pe TERRE DS ST EES ee ECR N SESS +0)

Doe vy. Harder, 310 F. Supp. 302 (D.C. Conn., 1970),

app. dis. for want of jurisdiction, 899 U.S. 902 (1970) 40

Doe v. hav ine, 8347 F. Supp. 357 (S.D.N.Y., 1972) ..... 40

Dov v. Norton, 365 F. Supp. 65 (D.C. Conn., 1973) .... 36

Doe v. Shapiro, 302 F. Supp. 761 (D.C. Conn. [1969],

app. dism. 896 U.S. 488 [1970]), rehearing den, 397

ea Ee CA, a oats awe ees VELA eae », 36, 40, 42

Doe vy. Swank, 332 F. Supp. 61 CN.D. HL, 1971) affd.

sub nom, Wearer v. Doe, 404 U.S. 987 (1971) 2.0... 39

Dunbar v. Dunbar, WO US, 340 (1908) 00.2... eee 14

Fite vy. Miller, 280 App. Div. 12 (4th Dept.. 1952) 2.0... l4

Ginberg vv New York, 390 U.S, 629 (1968) 2.0.0... 6. 15

Glonav. American Guarantee & Liability Insurance Co,,

391 U.S. 73 (1968) RSS ERE GE ee PAP ay aD ge D

Gomez v. Perez, 409 U.S, 535 (1978) ... 2... ee eee 1d

James v. Goldberg, 802 F. Supp. i 8”) 37

Jefferson \. Hackney, 400 US, 585 (1972) 2... 39, 1H

King v. Smith, 392 US. 309 (1968) «2.2.6... », 26, 38, 30

Landes vy. Landes, VN Y 2.358, app. dism. 33010 JS. 948

PRN he oe OU Nd ne ees CS CRE RK bE og 14

Lavine v. Shirley, 365 F. Supp. S16 ................. 2

Lavine v. Siirley, 409 UWS. 1052 [No. 72-582] 22.22... 5

PAGI

Levy v. Louisiana, 391 U.S. 68 (1968)... 5

Lewis v. Lavine (Dkt. No. 72-CV-4249 [S.D.N.Y.]).... 11

Lewis v. Martin, 397 U.S. 552 (1970) 20. ee eee 38

Veyers v. Juras, 327 F. Supp. 759 (D. Or., 1971) affd.

404 U.S. 803 (1971), reh. den. 404 U.S. 961 ........ 39

New York State Department of Social Services v. Dub-

lino, 413 U.S. 405 (1973) ........- 15, 26, 30, 41, 42, 43, 44

Prince v. Massachusetts, 321 U.S. 158 (1943) .....-.-- 15

Saiz v. Hernandez, 340 F. Supp. 165 (D. New Mexico

Ls 1) eee are eet Or rere eas rene eed 36

Shapiro v. Thompson, 394 U.S. G18 (1969)... eee 26

Stanley v. Illinois, 405 U.S. 645 4: 3 5 ee ee 15

Strecker ¥. Strecker, 10 A D 2d 312 (1st Dept. [1960]). 14

Taylor Vv. Martin, 330 F. Supp. 85 (U.8.D.G, N.D. Calif.

1971), affd. sub nom., Carleson v. Taylor, 404 U.S.

OD TT ares races condone) Veneee vans 39

Woods v. Miller, 318 F. Supp. 510 (W.D. Pa., 1970)... 40

Wyman v. James, 400 US. 309 (1971)... -. 5, 23, 36, 41, 42

STATUTES OF THE UNtrep STATES:

Social Security Act § 402(a) CIT) 20. eee 1)

CSE RL Ee ame anary ere teyy Y

eMC CM ng op Sys Fay pee tke ek 6,7, 10

PB UBC. § UBS 2c cece rer eee e cess ecans ree Ye

42 U.S.C. § G02(a)(7) 2.6... 4, 12, 16, 82, 33, 84, 35, 36. 35

2 U.S.C. §G02(a)(11L) .....0....-66e- 4,16, 17, 21, 39, 42

42 U.S.C. § GO2(a)(15) oo. eee eee eee enn ee 22

42 U.S.C. §602(a)(17) ......---66- 4, 12, 13, 16, 22, 23, 31

42 U.S.C. § G02(a)(18) «2.6... eee eee 4, 16, 22, 28, 31. 44

42 UG.C. § 602(a)(20) 2... cee cee te ees 3

42 U.S.C. § G02(a)(21) ......-- eee eee 4,16, 22, 23, 31, 44

42 U.S.C. § 602(a)(22) ......-..-00ee 4,16, 22, 23, 31, 44

42 U.S.C. §G0B(d) ...... cece eee eee eee eee e eens 26

SOR ee UES eterna Dp reer es. 1

nee gO” a RS ae eee ene eer IN 2

poe oY See 8 eel Cone ore meyer one 6.7

ee a eee Fea ea tae ye tee Ee TERE Sei 33

NT a OR arr er ee re Tere ee ete ee 16

Ee ee erp ra er er ree re eee ee ee et 20

TS ere eee eke Cee 2 26

Publin (0 RIES cack ccc ev ds eb ec ceca tewe ews rene lt

lV.

PAGE

Srarures oF THE State oF New York.

New York Family Court Act $413 .......... 0.40545. 13

New York Family Court Act § 414 ..............005. 14

New York Family Court Act $518 .............0.005 14

New York Social Services Law $101 ...........2.45. 14

New York Social Services Law § LOl-a(1) ...... 7, 11,14

New York Social Services Law § 101-a(2)(38) .. 2,4,5,8,

10, 12, 13, 15, 21, 32, 38, 39, 45

REGULATIONS OF THE Secretary OF LEALTH,

Epucation axnp WELFARE.

45 C.F.R. § 233.90(b)(4)(i) (ii) oo... eee eee 3.11, 20, 21

a ee a aks ea vind oS 20

VISCELLANEOUS:

1967 Congressional Reeord, House, p. 283048 et seq... 27

1967 Congressional Record, House, p. 25055 ........ 26

1967 Congressional Record, Tlouse, pp. 36366, 36367,

PO cari tench vac RPE CEE REM EE LS OO ee 26

1967 Congressional Record, Senate, p. 32592 2.0.2... 2s

1967 Congressional Record, Senate, p. 82598 00.0.0... 28

1NGT Congressional Record, Senate, p. 82851 ........ 29

1967 Congressional Record, Senate, p. 38540 ........ 31

1967 Congressional Record, Senate, p. 863800 0.2... 3

1967 Congressional Record, Senate, p. 36819 0.0.0.0... 29

1967 Congressional Reeord, Senate, p. 86925 ........ 30)

1962 United States Code, Congressional Administra-

tive News, p. 1943 at p. 1959.0... cee eee eee 22, 34

Senate Report No. (34 of 1939 .............cc cues 33, 34

lfouse Report No. (23 of IBS)... ieee eee 33

Senate Report No. 1669 of 1950 .................. V7

Hotee Report No. 1900 of 1960 ................004. 17,42

House Report No. 544 of 1967, 0... ee cc eee 23

Senate Report No. (44 of 1967 .. 2... eee cess ee 2h

Senate Report No. 91-223 of 1969 ...............06.. 26

Regulation of the New York State Department of Soetal

Services IS NYCRR § 869.2(19 (38) Gi) (ee)... ee. eee 6

Handbook of Publie Assistance Administration, De-

partment of Health, Education and Welfare, Part

er IN DU Sts EN a ard Oy aie 4 api Woh Wom 21

Handbook of Public Assistance Administration, [e-

partment of Health, Mducation and Welfare, Part

er TN PURI ik arse Sale eta na eae a A 20, 21

¥,

PAGE

McKeany, Maurine, “The Absent Father and Public

Policy in the Program of Aid to Dependent

Children”, University of California Press, 1960, pp.

41, 42 and pp. 45-46

“Characteristics of ADC Families in New York State,

January 1971" 2.0... cece eee eee cnet eee enc nnee

a ie ae a) ae a Oe a De

IN THE

Supreme Court of the United States

October Term, 1973

No. 73-1095

ABE LAVINE, individually and as Commissioner of the

Department of Social Services of the

State of New York,

Appellant,

SYLVIA SHIRLEY, individually and on behalf of her

minor dependent children, TAMMY LYNN and LISA

MARIE, and on behalf of all others similarly situated;

ELIZABETH ANDERSON, individually and on behalf of

her minor dependent child, JOANNE, and on behalf of

all others similarly situated;

JANE DOF, individually and on behalf of her minor

dependent child, KIRSTEN WYNN, and on behalf of

all others similarly situated,

Appellees,

and

JOUN LASCARIS, individually and as Commissioner of

the Department of Social Services of the County of

Onondaga,

A ppellee.

Ox Apprar rrow THE Uxrrep Srares Districr Court ror

vue Norruers Disrricr or New York.

BRIEF FOR APPELLANT LAVINE

Opinion Below

The “Memorandum-Decision and Order™ of the three-

judge District Court filed September 26. 1973 as amended

by order of October 4, 1973 is set out as Appendix “A”

to the “Statement as to Jurisdiction on behalf of Appellant

Lavine’. It is reported at 365 F. Supp. SIs.

Jurisdiction

of the three-

judge District Court was entered on September 26, 1973.

The Notice of Appeal of Appellant Lavine was filed in the

office of the clerk of the United States Distriet Court for

the Nerthern District of New York on November 14, 1973.

The ease was docketed January 12, 1974, and on June 10,

The “Memorandum-Deeision and Order

i974 the Court noted probable jurisdiction, The jurisdic-

tion of this Court rests upon 28 UL S.C. § 1258,

Statute Involved of the State of New York

Vew York Social Services Law, § 101-a(2) (3)'

(S24 MeKinney’s Social Services Law,

Page 25, pocket part)

“< 101-a Proceedings to compel support by persons

in need thereof

* * *

“An applicant or recipient of public assistance

who is the parent of a child or minor shall assist and

cooperate with the social services official and appropri-

ate authorities to obtain support or contributions to

support for such child or spouse from the other parent

or spouse by:

“(a) Furnishing the social services official with ap-

propriate information including the location of the

other porent or spouse,

TAs added by Chapter 687 of the Laws of New York of 1972. See-

tion 4 of C hapte r 687 provides as follows :

“34. The provisions of this act shall be ineffective to the ex-

tent that they are determined to be not in compliance with federal

law reguations pertaining to public assistance and care.”

“(b) Filing a petition and furnishing evidence in

a proceeding for the establishment of the child’s

paternity and support under article five of the family

court act.

“(¢) Filing a petition and furnishing evidence in a

proceeding to secure support for her child and her-

self under article four of the family court act.

“3 In the event an applicant or recipient of public

assistance fails to institute a proceeding in accordance

with the provisions of this section or other similar pro-

visions of law, the social services official shall institute

such proceeding under the appropriate provisions of

the family court act and if such applicant or recipient

willfully fails or refuses to furnish evidence necessary

to support such petition, or furnish information rela-

tive to the location of the other parent, the social

services official shall not provide or continue to pro-

vide assistance or care for the maintenance of such ap-

plicant or recipient so long as such applicant or re-

cipent fails to assist or cooperate as required by the

provisions of this section or other provisions of law.”

Regulation Involved of the Secretary of Health,

Education and Welfare

45 CBLR, §288.900b) (4) 0000)

*< 933.90 Faetors specific to AFDC.

* = 2

“(h) Condition for plan approval.—

* 7 *

“(4) A child may not be denied AFDC either ini-

tially or subsequently because a parent or caretaker

relative fails to assist;

“(i) In the establishment of paternity of a child

born out of wedlock; or

“(ii) In seeking support from a person having a

legal duty to support the child; But neither this nor

any other provision of these regulations should be

construed to require that provision be made by a State

in its AFDC program for the maintenance of a parent

or caretaker who fails to provide such assistance and

AFDC may be denied with respect to such parent or

caretaker.

* * =

(38 Federal Register 10940, May 3, 1973, to be etfee-

tive July 2, 1973.)

Statutes of the United States

42 US.C. § 602(a) (7), (IL), IT), (IS), (21) and (22

are set out as Appendix A to this brief.

Questions Presented

Do the provisions of New York Social Services Law,

. 10l-a (2)(3) that a secial services oflicial shall not pro-

vide assistance or care for the maintenance of a parent,

who is an applieant for or recipient of public assistance,

who willfully fails or refuses to furnish evidence to sup-

port a petition by a social services official, brought in the

Family Court of the State of New York under appropriate

provisions of the Family Court Act, to establish a child's

paternity and support or to secure support for sueh ap.

plicant’s or recipient’s child and herself? or to furnish

appropriate information including the location of the other

parent, so long as such parent fails to assist er cooperate

as required by such section or other provisions of Taw, con-

fliet with the provisions of the Soeial Seeurity Act.

Does a regulation of the Seeretary of Tiealth, Pduea-

tion and Welfare authorizing denial of maintenance to a

quires a parent to cooperate in obtaining support for “herself the

Order below dealt only with obtaining support for children from an

absent parent. Any requirement that the parent cooperate in obtaining

support for “herself” is not involved in the case.

parent who fails to provide such assistance conflict with the

provisions of the Social Security Act *

Statement of the Case

Preliminarily we note that the case at bar has been be-

fore this Court previously (Lavine v. Shirley, 409 UL S.

1052 [No. 72-582)). This Court remanded, Xs will appear

infra the three-judge Court below after remand permitted

intervention, by Anna Stuck and amendment of the Com-

plaint. The Court below found that the original named

plaintiffs no longer felt aggrieved due to intervening events,

The Court below. however, in its *Memorandum-Decision

and Order” (J. 8. 19) did not change the tithe of the action

nor have we. We here set out the history of the action

since its inception. It must be noted, however, that the

Order herein was in faver of Anna Stuck. The original

named plaintiffs were not named in the Court's Order.

31n the Court below we moved to dismiss the amended complaint

for lack of subject matter jurisdiction in that it was argued that the

complaint failed to present a substantial constitutional question, there-

by depriving the Court below of jurisdiction in this Civil Richts

Action. We do not pursue the question of “substantiality™ Glurts-

dictional Statement p. 12) because the Court has not postponed jurts-

diction or requested the partics to address themselves to that ques-

tion. While it is arguable whether the “Questions Presented” “fairly

comprise” the question of the constitutionality of New York Social

Services Law © 101-a(2)) (3). we submit that in any event ‘The

choice fas to cooperation | is entirely hers [the mothers} and nothing

of constitutional magnitude is invelved.” Waman vx. James, 100

VS, 309, 324 (1971). We have set out as Appendix “B” to this

brief, our briefing in the District Court on this point.

Anna Stuck has not been barred from the welfare roles because

of the illegitimacy of her child, but rather, because she has failed to

cooperate in locating the father of her child. Any attempt to analo-

give this case to either Levy v. Louisiana, 391 U.S. 68 (1968) or (rlona

\. American Guarantee & Liability Insurance Co., 391 U.S. 73 (1968)

must. therefore, fail. Cf. following: Doe v. Shapire, 302 FP. Supp.

761 et 762 (D.C. Conn, [1969], app. dismissed 396 U.S. 488 [1970],

rehearing den, 397 U.S. 970 [19T0]). See also Aing v. Smith, 392

U.S. 309 (1968) (Mr. Justice DoveLas concurring, p. 335, footnote 4).

The plaintiffs in the original complaint (appellees on

the first appeal in this Court prior to remand) were per-

sons against whom-it was claimed that New York Social

Services Regulation IS N.Y. CG. Re Re. § 869.2(1) (3) (ii) (e)

had been applied to require them to institute and prose-

cute non-support proceedings against deserting or aban-

doning fathers (A. 7). Sylvia Shirley allegedly declined

to file a petition for non-support agaisst her husband (A.

10): Elizabeth Anderson allegedly was required to file a

petition for non-support against her husband from whom

she was separated and who she claimed was already sup-

porting her to the full extent of his ability. She wished

to withdraw the petition for non-support which had been

filed (A. 12). As to “Jane Doe” what was involved was

an alleged effort to require her to file a non-support pro-

ceeding against the father of one of her children (A. 12).

The original complaint alleged that the departmental regu-

lation on its faee and as applied was invalid as establish-

ing an additional eligibility requirement not provided for

by the Social Security Act (A. 15). The original eom-

plaint alleged jurisdiction under “42 UL S.C. § 1348(3)

(4), 42 UL S.C. $1983 and 28 U.S. C. § 1331 (A. 7).

The suit was filed on behalf of the original named plain-

tifis on Mareh 23. 1972 and was heard by a Distriet Court

of three judges. After answer by both the State and

County defendants (A. 22. 30). the plaintiffs on May 26,

172 fled a motion for summary judement (A. 34) which

was eranted by the Court below in its oral opinion of June

7. 172 CAL 49) and implemented by its order dated July

1 1972. filed July 21, 1972 (A, 68).

An appeal to this Court from that order was filed by

the State Commissioner of Soeial Services on Augusc 10,

* Apparently 28 U.S.C. was meant.

1972 (A. 65) and the case was subsequently doeketed in

this Court as number 72-582.

On December 11, 1972, this Court vaeated the judgement

below and remanded the case “for further consideration

in light of chapter GS7 of the 1972 Laws of New York (New

York Social Services Law § 101-a as amended)” (A. 69)

(409 USS. 1052). The effective date of the amended statute

was September 1, 1972.

After this Court’s remand, plaintiffs’ attorney brought

on by order to shew exuse filed Mareh 20, 1973 (A. 71) a

motion to (1) reconvene the three-judge Court. (2) permit

amendment of the complaint, and (3) permit intervention

by Anna Stuck. That motion was returnable April 9,

1973. Both the State and County defendants moved to

dismiss the action for lack of subject matter jurisdiction

on the ground that the case had become moot CR. 200,

213). The motions were ordered held for the three-judge

Court by Distriet Judge Porr.

By its order dated April 9 1973. filed April TS, 1975

(A. 76), this Court granted plaintiffs’ motion to amend the

complaint and te intervene Anna Stuek.

The Amended Complaint (A. ....)

The amended complaint (permitted by the Order of the

Court below of April 9, 1973), also alleged jurisdiction

under “42"" U.S. C. § 1343 (3) (4), 42 U.S.C. § 1983 and

PS ULS. C. 81331 CA. 80). No statement of claim on be-

half of the plaintiffs in the original action was made. The

Court below in its Memorandum-Decision of September 23,

1973 noted that:

* Apparently 28 U.S.C. was meant.

“The amended complaint does not reallege the facts

concerning the original named plaintiffs. This omis-

sion was by design since they no longer feel themselves

aggrieved due to intervening events. In its present

posture, then, this is an action by Anna Stuck on be-

half of herself, her minor children, and all others sim-

ilarly situated * * *.” (Jurisdictional Statement, page

23)8

The amended complaint contained the following “State-

ment of Claim” on behalf of the intervening plaintiff, An-

na Stuck:

“Intervening Plaintiff Anna Stuck has been receiv-

ing publie assistance for herself and her four infant

children since 1970. She was required by the Onon-

daga County Department of Social Services to appear

at their offices for the biannual recertification of her

eligibility for public assistance. She did so on Feb-

ruary 2, 1973. She was told that she must bring a

paternity action against the father of her youngest

child herself, or authorize the Department to do so,

and that she must cooperate fully with the Depart-

ment in such action. She refused to cooperate in the

bringing of such an action; her refusal was based on

the fact that the father of her youngest child is dis-

abled and is not able to support the child. Further-

more, she had been required by the Department of

Social Services to file a paternity suit against the

father of her first three children. That filing had lead

to constant strife between her and the respondent.

She does not wish to duplicate that situation with the

father of her voungest child.” (A. 83)

The amended complaint alleged two causes of action.

The first cause of action alleged that New York Social

Services Law § 101-a(2) (3) establishes “an additional elig-

ibility requirement not provided for by the Social Secur-

ity Act.” (A. 85) Constitutional allegations are set forth

in the second cause of action as follows:

® Hereinafter referred to as “J.S.~

“Defendants’ action in erecting an additional re-

quirement of eligibility constitutes a denial of equal

protection guaranteed by the Fourteenth Amendment

to the Constitution of the United States, in that it

creates an invidious and unjustifiable distinction. New

York’s action in this case requires that impoverished

mothers institute and cooperate in proceedings against

their children’s fathers; no such requirement is_ im-

posed on the well-to-do. Marriages of the well-to-do

are not driven asunder by forcing one spouse to prose-

cute another. Classifications based on wealth have

lone been recognized as peculiarly obnoxious to the

principles of equality enshrimed in the Fourteenth

Amendment.” (A. 85)

Answer of Appellant Lavine (A. 105)

As appears from appellant’s answer, appellee Anna

Stuck had a departmental fair hearing on March 1, 1973.

Returned with the answer was the fair hearing decision

of March 7. 1973 (A. 117). That fair hearing decision

stated in part:

“Appellant refused to disclose the location of the

putative father of her youngest child. Appellant con-

ceded at the fair hearing that she knew the mailing

address of the putative father and had declined and

still refused to disclose it. She had told the agency

his name and the community where he presumably re-

sided.

“The record establishes that appellant had declared

that she would not initiate paternity proceedings and

desired that the agency not do so. Based upon the

degree of cooperation received from appellant as to

other information about the putative father, the agen-

cy properly found appellant’s lack of cooperation to

be a basis for termination of her assistance.”

The answer, inter alia, denied the allegations set forth

in plaintiffs’ first and second causes of action.

Separate affirmative defenses of failure to state a claim

upon which relief could be granted were alleged as to the

original plaintiffs and as to plaintiff Stuck. As has been

noted, appellant Lavine’s motion to dismiss the action on

the grounds that the ease had become moot was held by

Judge Porr for the three-judge Court. The answer sets

out such grounds as an affirmative defense, and addition-

ally, sets out the affirmative defense of lack of subject mat-

ter jurisdiction under 28 U.S.C. § 1343 and under 28 U.S.C.

§ 1331. (These additional grounds were also contained in

a motion to dismiss served coincidentally with appellant’s

answer and returnable before the three-judge Court on

the argument on May 11, 1973 (R. 249.) Further af-

firmative defenses were lack of jurisdiction to award dam-

ages as prayed for in the amended complaint against de-

fendant Lavine (appellant here); lack of standing and

lack of capacity to sue: lack of an actual ease of contro-

versy, lack of a justiciable controversy; that plaintiffs

Shirley, Anderson and Doe had failed to exhaust admin-

istrative remedies and that all plaintiffs had failed to

exhaust State judicial remedies; and finally, that New York

Social Services Law 6 101-a (2) (3) is valid and econstitu-

tional.

The Court below considered the motions to dismiss as

motions for summary judgment (J.S. 22) and granted

summary judgment in favor of the plaintiff Anna Stuek

only (J.S. 34).

The three-judge District Court on September 23, 19738

rendered its “Memorandum-Decision and Order” which

was filed September 26, 1973. The “Memorandum-Deci-

sion” was amended by order of October 4, 1973.

The three-judge Court held that the “Tp]laintiffs

have raised a substantial question with respect to the con-

stitutionality of New York Social Services Law § 101-a as

amended” but the Court disposed of the ease on the “stat-

utory claim rather than indulge in a constitutional ruling.”

(J.S. 24.)

The Court stated that “While we are not outraged by

nor unsympathetic to New York’s effort to compel Anna

Stuck to cooperate in a proceeding to compel support for

her voungest child to the extent required by § 101-a, we

find no authority for engrafting such a condition on to the

_Congressionally prescribed initial AFDC eligibility require-

ments or on to the grounds for discontinuance of benefits.”

(J.S. 25.)

The Court discussed 45 C.F.R. § 233.90 (b) (4) (i) (ii),

a regulation of the Seeretary of Health, Education and

Welfare (which had bheeome effective July 2. 1973) and

which supports anpellant’s position, "The Court indicated

that it had withheld decision until after the effective date

of that regulation in order “to authoritatively consider its

effect.” GIS. 20.) The Court found that the “ageney's

new interpretation is im error and not a guidepost to be

followed judicially.” GT. S. 32.)

Class action status was denied because of the pendeney

of Lewis v. Lavine (Dkt. No. TI_CV-4249 [S.D.N.Y.1) a

‘ase also involving Social Services Law §101-a in whieh

a class action order had heen made. (J.S. 32.)

The Conrt below denied nlaintifts’ demand for retro

active payment. GIS. 34.)

The Court granted summary judgment in favor of Anna

Stuek “ot * * declaring § 101-a, as amended, of the New

York Social Services Law void, unenforeeable and with-

ont effect insofar as it makes recipient cooperation in a

paternity or support action against an absent parent a

condition of eligibility for AFDC” (J.S. 34), and it per-

manently enjoined defendants from denying or terminat-

ing AFDC assistance to appellee Anna Stuck or her minor

children “for failure to cooperate in obtaining support

from an absent parent of her children.” (J.S. 34.)

No appeal was taken by appellant from that part of the

order which permanently enjoined defendants from deny-

ing or terminating AFDC assistance to the minor children

of Anna Stuck (A. 140, J.S. 36). New York Social Ser-

vices Law §101-a (2) (3) operates only upon the parent,

not the children. The children’s grant of AFDC continues.

Summary of Argument

The provisions of the Social Security Act are recognition

of the primary responsibility of parents to support their

children. The decision below erroneously shifts that bur-

den of support from the parents to the State.

The provisions of the Social Security Act recognize that

the right of a child to support is a valuable resource, the

development and realization of which cannot be blocked by

an intransigent parent. ;

New York Social Services Law $101 (a) (2) (3) as

added by Laws of 1972, Chapter 687 does not conflict with

any specific provisions of the Constitution or the Social

Seenrity Act. On the contrary, the State statute involved

implements at least two specifie provisions of the Social

Security Act. These are: 42 U.S.C. $602 fa] [7] and 42

U.S. § 602 fa] [17] FAT.

49 U.S.C. <602 (a) (7) requires that a State ageney

shall. in determining need, take into consideration the in-

come and resources of any child or relative claiming

AFDC.

42 U.S.C. § G02 (a) (17) (A) requires that a State plan

must provide for the development and implementation of

a program under which the State agency will undertake

to establish the paternity of children born out of wedlock

and secure support for them, and, as to legitimate children,

secure support from a responsible parent. Thus there is

no conflict between State Law and the Social Seeurity Act.

The Social Security Act allows for and requires State pro-

grams to establish paternity and obtain support.

Xew York as well as the Congress has a legitimate in-

terest in obtaining support for deserted or abandoned

children. New York Social Serviees Law ©101-a (2) (3)

is agreeable to and furthers the provisions of the Social

Security Act. The State statute is valid, however, even

if it is held to ereate a condition for assistance, heeause the

State statute does not conflict with any specifie provision

of the Constitution or the Social Security Act and op-

erates within the legitimate sphere of State AFDC admin-

istration.

POINT I

It is the responsibility of parents, not the State, to sup-

port their children. The decision below erroneously re-

verses this basic concept by attributing to Cengress an

unexpressed intent to do so.

The primary responsibility for the support of the child

is with its parents, not with the State. Under New York

Family Court Aet § 413, the father of a child is chargeable

with its support if possessed of sufficient means or able

to earn such means. Under the provisions of New York

Family Court Act § 414, if the father of a minor is dead

or incapable of supporting his child or cannot be found

within the State, the mother of such child is chargeable

with its support. And New York Family Court Act § 513,

provides, as to children born out of wedloek, mmfer alia

that “{e]ach parent of a child born out of wedlock is liable

for the necessary support and education of the child and

for the child's funeral expenses.” See also New York

Social Services Law 6° 101 and 101-a (1),

The New York Court of Appeals has held:

“Both at common law and by statute, New York has

always treated a husband as absolutely responsible in

keeping with his ability for the support of his depend.

ent minor child or children * * *”

Landes \. Landes, V NY 2d 358 at 365 (1956), app.

dism, 342 U.S, 848 (1956),

See also Strecker vo Strecker, 10 New York A Ded sre

(1st Dept. 1960) where the New York Court quoted Black.

stone for the proposition that (p. 313)

“The duty of parents to provide for the marnten-

ance of their children, is a principle of natural law:

an obligation * * * laid on them not only by nature

herself, but by their own proper act, in bringing them

into the world’. (1 Blackstone Commentaries on the

Laws of England [11th ed.. 1791], pp. 446-447.)

At common law the father of pn legitimate child) was

under no legal duty to support such child. Fite v. Willer,

280 App. Div. 12 (4th Dept. 1952). The legal lability of

such a father is statutory (Family Court Act, §5138, supra),

The support obligation of a father was long age enun-

elated by this Court in Dowhar v. Dimbar, 190 US. 340,

851 (1908) where the Court held that “At eommon law,

a father is bound to support his legitimate children, and

the obligation continues during their minority. We may

assume this obligation to exist in all the States”. And this

Court has recently held that a State which posits a judi-

cially enforceable right on behalf of children to needed

support, cannot deny such right to an illegitimate child

(Gomez v. Perez, 409 US. 585 (1973)), thus securing to

all children the right of filial support which New York, by

statute, his given to them.

In assessing State vetion restricting parental control of

their children, this Court has often held that "he is cardi

val with us that the custody, care and nurture of the ehild

reside first in the parents, Whose primary funetion and free

dom include preparation for obligations the State can

neither supply nor hinder’, Price v. Massachusetts, 321

US. 158. 166 (1948), Ginbera vo New York, 890, U.S. 629,

G39 (L968), Stanley vo Mlinois, 405 US. 645, GOT CINT2),

lriplieit: in such oa declaration of parental rights, is the

lowiea! corallary that among the “first” and “primary”

duties of parents is the duty of parents to support their

children,

The effect of the deeision below, in holding New York

Social Serviees Law, § 101-a (2) (3) to be in coniliet with

recuirements prescribed by Congress GIS. 33). is tore

rerse long-standing principles governing the responsibil

ties of parents to support their children and to mmply to

Congress an unexpressed intent te shrt/ such prooxisting

parental responsibilities from parents te the States. We

snbmit that. if Congress had intended such a result '* 7°

cach intentions would in all likelihood have been expressed

in direct and unambiguous language. No such xpression

exisis, however, either in the federal statute or in the com

mittee ceports” Vew York State Department of Soeral Ser

LICPS _# Duhine, 418 BR 405 nt 414 (W973).

The federal statute involved is 42 U.S.C. § 602(a) (11),

(17), (18), (21) and (22). As will be shown, these provi

sions were not intended to shift parental responsibility

from parents to the States,

On the contrary, the provisions of 42 U.S.C. § G62(a)(7)

require the States to consider the support obligation of the

father to be a resouree of the child in determining need in

the first instance.

A. The Notice to Law Enforcement Officers (NOLEO)

Amendment of 1950 (42 U. S. C. § 602 (a) (11)) did not

shift parental support responsibilities from parents to the

State,

Ht was in 1950 that Congress first inserted provisions

in the Social Security Act evineing its coneern with the

problem ereated by the parent who deserts or elandons

his children, The 1950 amendment (G0 Stat. 1095) in-

seria what is new 42 US.C. 9) 602 (a) (11) Cormerty

SGHO2}a} (10)) to provide that a State Plan must “effec

tive July 1, 1992. provide for prompt notice to appropriate

law-enforcement officials of the furnishing of aid) [te fami.

hes with]? dependent children ino respeet of a ehild who

has heen deserted or ahandoned by a parent >

* The phrase “Aid to Families with Dependent Children” was sub-

stituted for the phrase “Aid to Dependent Children” by Public Law

87-5453 of 1962,

‘Since the NOLEO amendments of 1951 were aimed at prosecuting

deserting or abandoning fathers, it is arguable that those amendments

were directed toward the situation where a married man deserted his

family, not cases involving paternity, Appellee Stuck, the intervenor

below, is the only viable appellee before the Court, and her case invelves

a failure te cooperate in the establishment of the paternity of one of

her children and obtaining support for that child. Thus, strictly

speaking, #2 TLS.C. 6e2 (a) (11) has no application whatsoever te

the case at bar, As noted in appellant Lavine’s Jurisdictional State-

ment, however, GIS. pp. 8 and 9), the Court below framed its order

in terms of requiring “recipient cooperation in a paternity or support

action”,

Section 602(a) (11) came to be known as the NOLEO

provision (Notice to Law Enforcement Officers).

Senate Report No. 1669 of 1950 (1950 United States Code

Congressional Service, p. 8287 at 8345) simply stated:

B. Notification to appropriate law-enforcenent offi-

cials

“Your committee believes that all instances of deser-

tion and abandonment of children by parents which

result in the payment of aid to dependent children

should be brought to the attention of the proper law-

enforcement. officials. The committee-approved bill.

therefore, would smend title IV of the Social Security

Act by adding the requirement that an approved State

plan must previde for prompt notice to appropriate

law-enforcement. ofiicials of the furnishing ef aid te

dependent children with respect te a child who has

heen deserted or abandoned by a parent.”

Hlouse Report No. 1800 of T8d0 stated (p. 48):

I’. Notification to appropriate law entorcemont offi-

cials

“It has come to vour committee’s attention that the

number of children receiving aid because of the deser

tion of the father is increasing. ‘The legal responsi-

hility of a parert for the support of his minor elildren

is, of course, clearly established in the laws of every

State. Your committee believes that all instances of

desertion and abandonment of children by parents

which result in failure to fulfill this responsibility

should be brought to the attention of the preper law

enforcement officials.

“The bill, therefore, would amend title TV of the

Social Security Aet by adding a requirement that an

approved State plan must provide for prompt notice

to appropriate law enforcement officials of the fur-

nishing of aid to dependent children with respect. to

a child who has been deserted or abandoned by a

parent.”

“NOLEO” was a product of the times in which it was

spawned. Maurine MeKeany, in a publication entitled

“The Absent Father and Publie Poliey in the Program of

Aid to) Dependent Children”, University of California

Press, 1960, stated (feot notes omitted):

“Wy Coxcress Appep rHE NOLEO AmMeNpMENT”

“Public criticism of ADC.—Congress added the

Noleo requirement ina period during which ADC was

being subjected to much publie eriticism. In the years

following World War Il, a variety of attacks were

made upon this program. The expense of ADC at a

time when the nation was enjoying relative prosperity

was difficult for many persons to understand. [High

erants to large families (which were necessary be-

cause of increased living costs and whie': were some-

times higher than the low-paid worker could earn)

were the object of adverse criticism. Legislatures in

cortain states acted to limit the administrative disere-

tion of publie welfare agencies by placing ceilings on

the amount which any family could receive.

Recipients were aceused of ‘chiseling’ and misman-

ving their grants, and public welfare agencies were

’

blamed for inefficient administration of the ADC pro-

gram. The provision of the Social Security Act limit-

ing the disclosure of information concerning appli-

cants or recipients to purposes directly connected with

the administration of publie assistance was questioned.

Wilbur Cohen has pointed out that the events leading

to the passage of the Jenner amendment of 1951,

which modified this prevision, were touched off by

the denial of a request by a county prosecutor in Indi-

nna for a list of persons receiving ADC. The prose-

eutor asked for this list in order that he might deter-

pone whether fathers were obeying the court orders

for sypport of their children, Among the charges re-

peatedly leveled at ADC was that fathers-——both mar-

rid amd unmarried—were permitted by the existence

of this program to shift their obligations to the tax-

payer.” (pp. 41. 42)

“The Noleo amendment as a compromise measure —

Representative Tom Steed urged the House Ways and

Means Committee, which was holding hearings on the

social security amendments, to include his bill (11. R.

4057) as an amendment to the Social Security Act.

This bill contained two proposals: (1) to make the

deserting parent who crosses state lines subject. to

federa! prosecution, and (2) to make it mandatory for

welfare workers te edvise prosecuting attorneys when

a child whose parent has deserted him receives publie

aid,

Mr. Steed believed that his bill provided a way to

enforce the assumption of responsibility by the father

without depriving children of needed support. In urg-

ing the passing of this bill he said in part: ‘In intro-

ducing this bill, J do wot cutend that aid shall be with

held from any needy child, but rather this bill ts aimed

at parents, who, without justification, shitt the finan-

cial responsibility for thecr children to the federal,

state, and local governments. — Another aim of this

bill was to bring about cooperation of law-enforce-

ment officials and welfare agencies. Mr. Steed pointed

out that. under the existing law, welfare agencies were

prohibited (by the confidentiality provision of the

Social Security Act) from notifying prosecutors of

cases of desertion or abandonment, and that the wife

usually failed to do this.

“The Noleo amendment was the result of a compro-

mise which was presented by Fedele Fauri, then staff

adviser to the Committee on Ways and Means. By

this compromise, state governments continue to have

responsibility for dealing with the offenses of deser-

tion and abandonment, but a state receiving federal

funds for ADC is required to develop a plan for

prompt notice to tie appropriate law-enforcement ofii

cinls in all cases in whieh aid is furnished to a child

who has been deserted or abandoned by a parent, Wil

hur Cohen analyzed the reasons for ‘he adoption of

the compromise proposal as follows: ‘Congress, in

initiating and adopting the amendinent, was respond

ing to public opinion and at the same time attempting

co work out something constructive without infringing

on state rights or broadening the area cf Federal con-

trol over family matters or changing the basie prin-

ciples of the ADC program.’

Thus. the Noleo amendment was the result of the

desire to put into effect two public policies—support

of needy children and enforcement of the performance

of duty by fathers who fail to support. The propon-

ents of this amendment believed that it presented a

method by which both of these objectives could be

achieved.” (pp. 45-46 (Emphasis supplied)

Congressman Steed, in proposing NOLEO did noi intend

that aid should be withheld from any needy child. But he

recognized the inherent wrong involved in parents shifting

the burden of support of their children to federal, state

and local governments. And we submit that le was re-

ferring to both parents, not just to the father beeause prior

to 1950 only the child received a grant of nid to dependent

children. [It was not until 1950 (70 Stat. 890) that the

mother was included as a recipient.

On June 11, 1951, the Department of Health, Education

and Welfare promulgated, iter alia, section 8120 of Part

IV of the Mandbook of Public Assistance Administration?

Seetion 8120 provided, inter alia:

“S120, Interpretation

> * *

“Congressional action was clear with regard to the dif-

ference between public assistance administration and

law enforcement. and did not place upon the publie

assistance agencies responsibility for enforeing sup-

port. The public assistance job is seen 2s that ef pro-

viding eligible children with the assistance they need;

and it is not the intent of the legislation te deprive

® Since codified for the most part in 45 C.F.R. $235.70 (36 Federal

The new HEW regulation (45 C. F. R. § 233.90 (b) (4) (i) (ii))

specifically so provides.

needy children of assistance in order to punish their

parents for neglect of their duties. Althongh accept-

ing assistance involves notice to the law-enforcement

oflicials if a parent has deserted or abandoned his

child, the amendment does not impose an additional

eligibility requirement. This is clear in the wording

of the provision which requires notice that aid has been

furnished ‘in respect of a child who has been deserted

or abandoned by a parent.’ ~

And Section 8149 of Part [IV of the Handbook of Public

Assistance Administration, provided:

“8149, Legislative Recommendations.—In most in-

stenees, States should be able, without changes in State

laws, to carry out this requirement of the Federal act

hy issuing the necessary rules and regulations. The

Bureau advises against legislation that makes the

actual commencement of action on the part of a parent

to obtain support from the parent who has deserted

or abandoned his children a condition of eligibility.

Such provisions deprive needy children, who would

otherwise be eligible, of the right to receive aid to

dependent children pending the commencement of ac-

tion to obtain support from the absent parent.”

ILEW's interpretation of the NOLEO provision of 1950

is consistent with its recently promulgated regulation (40

CLF_LR. § 238.90(b) (4) 1) G1) acknowledging the right of

the States to refuse to provide maintenance for a parent

or caretaker who fails to provide assistance in establishing

paternity and in seeking support. This is so heeause as

te the NOLEO amendment [EW had grounded its post:

tion (section 8120. supra) upon the precise wording of 42

U.S.C. §602(a) (11).

New York Social Services $101 ‘a(2)(3) does not deny

AFDC to any child. It requires only that the parent per

form her natural duty to support and obtain support for

her child. That duty is hers, not the State's. The NOLEO

amendments of 1950 did not change that “basie concept’.

B. The 1967 Amendments to the Social Security Act

(42 U.S. C. §$ 602 (a) (17) (18) (21) (22)) did not shift

parental support responsibilities from parents to the State.

The 1967 amendments to the Social Security Act for the

first time, in an effort to reduce the incidence of illegitimate

births, inserted the provisions of 42 U.S.C. § 602 (a)(15),

which provides, inter alia, for the development of a pro-

gram by the States to prevent or reduce the incidence of

births out of wedlock and to otherwise strenethen family

life (§ 602 fa] f5StPA]fii}) and for the implementation of

such programs hy the furnishing of family planning serv-

ices (7d. [B] fi).

But there was another side to the coin. The 1967 amend-

ments to the Social Security Aet (Section 602[a]) further

provided that a State plan must:

“(17) provide—

(A) for the development and implementation of a

program under which the State ageney will under-

take—

(i) in the case of a child born out of wedlock who

ix receiving aid to families with dependent children,

to establish the paternity of such child and secure

support for him, and

(ii) in the case of any child receiving such aid who

has been deserted or abandoned by his parent, to

secure support for such child from such parent (or

from any other person legally lable for such sup-

port), utilizing any reciprocal arrangements adopted

with other States to obtain or enforce court orders

for support, and * * *."

1 The 1962 amendments to the Social Security Act had placed a

new emphasis on family services, and in line with that change, the

name of the program was changed to “Aid and Services to Needy

Families with Children”, and the name of the assistance provided

under the program wes changed to “Aid to Families with Dependent

Children” (thus, AFDC, rather than ADC, as formerly). (Senate Re-

port No. 1589 relating to the public welfare amendments of 1962, 1962

United States Code Congressional and Administrative News, p. 1943

at 1956).

Section 602(a)(17)(B) requires that there be a special

administrative unit in each State to establish paternity and

obtain support. Section 602(a)(18) requires States to

enter into agreements with law enforcement and judicial

agencies. Section 602(a)(21) and (22) require States to

provide information useful in locating deserting parents

and to assist each other in obtaining and enforcing support

obligations of such parents. See also 42 U.S.C. § 610.

Senate Report No. 744, 1967 United States Code Con-

gressional and Administrative News, p. 2834 at 2997, stated,

in part:

“A substantial proportion of the persons receiving

aid under the AFDC program are eligible hecause of

the desertion by a parent of the child. Several pro-

visions are already in the law and more are proposed

under the bill to provide additional tools” to States

and to impose further obligations on them to assure

the determination of legal responsibility for support

and to make efforts to make these collections. The

committee believes it is essential to make certain that

all legally responsible parents of sufficient means make

their appropriate contribution to the support of their

children.”

House Report No. 544 of 1967 dealt with “parental deser-

tion” and “referral to courts”.

As to referral to the Courts, the Committee’s report

stated (p. 100):

“Referral to courts—Your committee's bill would

add a plan requirement on the relationship of the pub-

lic welfare agency to the courts and law enforcement

officials. Under present law, the States are required

to report to the appropriate law enforcement officials

11 Cf. Wyman v. James, 400 U.S. 309 where the challenged regula-

tion conditioning continuation of AFDC benefits on home visits by

case workers was deemed to be “a reasonable administrative tool”

(400 U.S. 309 at 326).

the granting of assistance to any child who is made

eligible by the desertion or abandonment by his par-

ent. This provision has not been broad enough to

accomplish objectives which the committee believes are

essential—securing \support from the deserting or

abandoning parent map ry possible case. There needs

to be a cooperative wrrangement between the courts

and law enforcement officials and the welfare agencies

in several program \areas. The agreement should

cover the manner in which referrals are made to the

court when the welfkre agency believes the child's

home is unsuitable because of neglect, abuse, or exploi-

tation of a child. The agreement should also provide

for calling the attention of the law enforcement agen-

cies to such instances and giving all necessary infor-

mation to the appropriate law enforcement. officials.

Thus. for example, if an AFDC mother is not caring

properly for her children, the matter would) quickly

come to the attention of the courts and appropriate

action taken, including the possibility of placing the

children in foster care.

“The agreement migh appropriately cover other

areas of joint interest between the welfare agencies

and the courts and the law enforcement agencies in-

cluding the manner of referral to the welfare agency

of instances of dependendy and the need for public

social services coming to he attention of the courts

aud law enforcement oflicials.” (imphasis supplied)

As to “parental desertion” the report stated) Cp. 102):

“Parental desertion. IM & Idition to illegitimacy as

a major cause of dependeney. absence of a parent

from the home by desertion is aomajor problem. ‘To

deal with this, your committee is preposing additional

requirements on the Ntaies to beng about a closer

relationship between the welfare agencies and the law

enforcement agencies and courts of the States so that

erery reasonabli effort will De made to locate and

obtain support from the absent parent,

“One of the major tactors which has prevented the

full utilization of the resources of the law enforee-

ment agencies is the lack of authority for the welfare

agencies to reimburse the law enforcement agencies,

with Federal sharing, for their expenses. Your com-

mittee is proposing that this weakness be corrected

by allowing Federal sharing in the reasonable expenses

of the law enforcement agencies with respect to wel-

fare recipients as a usual administrative expense of

the welfare program. The committee expects that

this expenditure of Federal funds will result in in-

creased effort to enforce the laws against desertion

and non-support. The committee also expects of the

Department of Health, Education, and Welfare ex-

treme diligence in working out the implementation of

this provision to protect the Federal funds and to

assure maximum benefit from the money expended.

Reimbursement should be limited to the basic expenses

for the personnel directly involved in the establish-

ment of paternity, location of deserting parents, and

for obtaining support from such individuals. Inas-

much as this is a normal function of Goverment and,

thus. should be available to welfare recipients as well

as all others in the community. your. committee be-

lieves that a relatively small Federal contribution to-

ward the cost of this operation should be suflicient.

“The above requirements on the States having to do

with establishment of paternity, location, and obtain-

ing support from absent parents will absorb the at-

tention of some full-time stat? members of the State

and loeal agencies im many areas. In order to make

certain that these funetions are exceuted with dili-

eence and are fully coordinated, the committee bill

provides that there shall be a unit established im the

State agency and in each political subdivision respon-

sible for these functions. Although in some instances

these funetions can be carried out by persous aiso car

rving other responsibilities, this requirement will, nor

mally, require staff working in this area full time. A

related provision, diseussed earlier ino this) report,

would allow courts to use social security earnings rec-

ords in order to locate a parent who ix hot supporting

his child.” (Emphasis supplied.)

Thus the L967 amendments were intended to help the

States and not hinder them in enaining support payments.

One of the proposals advanced by the House during the

course of the deliberations on the 1967 amendments to

the Social Security Act was to freeze (insofar as Federal

financial participation is concerned) the largest AFDC

category—where the parent is absent from the home-—at

then existing proportions of each State’s child population.

This was added as 42 U.S. C. § 603(d), since repealed (88

Stat. 45). Chairman Wilbur Mills of the House Ways

and Means Committee was of the opinion that the freeze

“* * * would give the States an additional incentive to

make effective use of the constructive programs which the

bill would establish” (Congressional Record, House. Au-

gust 17. 1967, p. 23055)."°

The freeze provided by §603[d] was ultimately re-

pealed because of unexpected effects arising from its ap-

plication in light of the Court’s decisions in Shapiro v.

Thompson, 394 U.S. 618 (1969) and King v. Smith, 392

U. S. 309 (1968) which would have led to the exclusion

from Federal matching of great numbers of persons whom

it was not the intent of Congress to exclude. See Senate

Report No. 91-223 of 1969 concerning “Chicory Roots—

Suspension of Duty—Social Security”. 1969 United States

Code Congressional and Administrative News, pp. 1051

through 1055, inclusive."

12 For the remarks of Representative Mills in presenting the con-

ference report, see 1967 Congressional Record, House, pp. 36366,

36367 and 36368.

13 That report which was presented to the Court in Commissioner

Lavine’s reply brief in the New York State Department of Social

Services v. Dublino, 413 U.S. 405 (1973) clearly indicated that during

the course of negotiations on the repeal of section 603(d) it was

anticipated that action by this Court in Shapiro v. Thompson and

King v. Smith would be on constitutional grounds and that the mem-

bers of Congress did not anticipate that Aing v. S.nith would: be

decided on statutory rather than constitutional groudns (id. p. 1054).

The House debate on the 1967 amendments appears at

1967 Congressional Reeord—lIlouse, p. 23048, ef seq. That

debate clearly shows that the House was seriously con-

cerned with the problem of the father who had abandoned

the home and was not supporting his dependents. This

was made clear from the remarks of Representative Byrnes

of Wisconsin which show that the “freeze” was aimed at

situations where the father has left the home. He stated

(1967 Congressional Reeord—House, p. 23059) :

“The only qualification or limitation applies to situa-

tions where in some instances the father has aban-

doned the home—left the home—and is not taking care

of his dependents. That is where we place the limita-

tion. because that is where the growth and the problem

hes,

“In my opinion the evidence which was presented

before the Committee on Ways and Means was per-

fectly clear to the effect that there has not been any

effort to find these parents in far too many cases, to

find these fathers in far too many cases, who have

abandoned the support of their children.

“In other words, Mr. Chairman, we have got to put

some teeth into this situation in order to force the

States to see that these fathers bear the burden of

supporting their own children. That is the only area

in which we have placed any limitation upon this par-

ticular part of this legislation.”

Thus it is apparent that the “freeze” was intended to ap-

ply the “erunch” to the States to force them to do something

about obtaining support, not to hinder them in seeking sup-

port from deserting or abandoning parents.

Mr. Byrnes’ remarks clearly constituted a eall to action

by the States to find the deserting or abandoning parent and

are consistent with and not a limitation upon the States’

power to require that a parent assist in proceedings against

an abandoning or deserting parent, especially so where, as

here, only the parents or caretaker relatives’ grant is in-

volved,

Senator Long, who was apparently the floor manager of

the 1967 Social Security Bill in the Senate, stated that the

amendments “would make more certain the fulfillment of

parental responsibilities.” [le further noted:

“* * * a requirement to assure that fathers who desert

or abandon their families will contribute te the sup-

port of their families by using available tax records

and the tax collecting and enforcement power of the

Internal Revenue Serviee [not adopted (sie) |. This

is a matter in whieh | have been particularly interested,

In addition, there would be a requirement that the

States establish separate units to enforce the child-

support laws, including financial help te the courts and

prosecuting agencies to entoree court orders for sup-

port:” (1967 Congressional Record, Senate, p. 32502).

Senator Lone further stated (1967 Congressional Record,

Senate, p. 82593) :

“Beeause of the constructive provisions of the bill,

particularly those relating to the work-incentive pro-

eram, family planning, and parental support, the com

mittee has strieken from the House bill the provision

which would impose a limitation, for Federal financial

participation purposes, on the number of children

whose eligibility is based npon the absence from the

home of a parent. The committee believes that these

other provisions will do what the House had in mind

without running the risk of depriving needy children

of the assistance they requires”!

Senator Curtis in his statement said “Also, the State can

doa better job if it enferees the law and requires deserting

fathers to support their children.” As toe the freeze, he

stated:

M4 'The “freeze” Was ph stored after conference with the van

the Tlouse

“T would point o1.i that if a State is adversely affected

by this freeze it ean readjust its eligibility requirements

so it can provide for the more needy cases.” (1967 Con-

vressional Record, Senate, p. 86319.)

Senator Ribicoff's statement was as follows:

“ReLarionsnip TO LAW EXrorckMENT AGENCIES

“There are several provisions in the bill on the rela-

tionships of publie welfare programs to the law-onforce.

ment agencies, These provisions are designed to secure

the lewal rights of children by establishing paternity,

in all instances of children born out of wedlock, and

making sure that the law-enforcement people are in

formed of all instances of expected exploitation or

nevleet of children, and to enlist the total support of

law-enforcement officials in the location of absent par-

ents and the collection of support orders, ‘To assist in

the effective implementation of these provisions, the

State welfare departments are directed to meet part of

the cost of the State law-enforcement function that re-

late to services to needy children, "The committee bill

contains a unique provision to aid in the location of

deserting parents and in the collection of the amounts

due their children. Welfare agencies are to have the

use of information in the files of the Internal Revenue

Service in the location of absent parents, in addition te

the resources they now have of the social security files,

There may be some persons who owe support toe their

children who have the ability to pay the required stm

and who have refused to do se. In those instances, the

Internal Revenue Service is directed to proceed against

the individual as though he had a tax obligation which

he has not paid and to collect the sums dre. (Not

adopted [sie].) We do not expect that very many

eases will reach this point. We expeet that the very

existence of this provision and the knowledge ef its

possible use will help to bring about support from per

sons who are obligated te pay and that the actual col-

lection machinery will be used only rarely.” (1967

Congressional Record, Senate, p. 32851.)

Senator Mansfield’s remarks, appearing at 1967 Congres-

sional Record, p. 36925, were as follows:

“SpRENGTHENING Faminy Lire

“Strengthening family life, the other major goal of

individual planning, is very much needed, The growing

incidence of illegitimacy, desertion, and divorce is of

ereat concern to all Americans, Among: the needy,

those with limited education and poor parental back-

eround, these problems are especially severe.

“The unfortunate children who happen to be illegiti-

mate must never be punished. Every effort should be

nade to obtain support from their parents, Only too

often these steps are not taken. If the children have

heen deserted, every effort must be taken, under this

hill, to use the existing legal machinery to locate the

absconding individual and hold him accountable for the

money he should pay for the support of his children,

* . ._

Also set out ix colloquy between Senator Kennedy of New

York and Senator Long as follows :

“Am | correct in my understanding that the intent of

the new section 402(a) (17) of the law is to indicate

Congress concern that, wherever possible, paternity

of children should be established and support obtained

from the father?

“Vir. Loxe of Louisiana. The Senator is correct.

“Ver. Kexxepy of New York. Am I correct that based

on my reading of the hill and the committee report, that

the committee does not intend by this new paragraph 17

that establishment of paternity is a prerequisite for

obtaining AFDC?

“Vr. Loxe of Louisiana. The Senator is correct. It

ix a purpose of the provision of our bill just as it was

the purpose of the provision in the House bill, that the

State agency should seek to obtain support from a

father who has abandoned his children and left them on

welfare.

“T have heen inelined to think perhaps the State

might require it, not as a condition of aid to the child,

hut as a condition of paternity and the mother identity

ing as the mother; but there is nothing in the bil to

say that. We are talking about the House language of

the bill. This is not the Senate language.

“Mr. Kexxepy of New York. We are establishing

that, during the period of time the effort is being made

to establish the paternity of the child, the child will not

lose the welfare payment,

“Mr. Loxe of Louisiana, No far as | know, there is

nothing in the bill to suggest that” (1967 Congres-

sional Record, Senate, p. 83540. )

Senator Long in his statement in support of the con-

ference report stated as to the freeze:

“The freeze applies not to the entire AFDC population,

hut only to those whose parent is absent from the home.

It seeks to take the incentive out of illegitimacy, or out

of a father’s running away from his obligations to his

children.” (1967) Congressional Record, Senate, p.

36306, )

The State and Federal Governments have a common con-

cern requiring deserting or abandoning parents to support

their children. Clearly, neither the provisions of 42 U.S.C.

§ 602(a) (17) (8) (21) and (22) nor their legislative his-

tory limit the rights of the States to seek support for de-

pendent children by enlisting the participation ef the par-

ent or caretaker relative,

42 USC. GOL (1S) (PO) and (21) provide mids to the

States in developing and taplementing State programs

required by the provisions of 42 U.S.C. — 602 (a) (17) CN).

42 ULS.C. 6 602 (a) (17) CA) requires the States to develop

and implement programs (a) to establish paternity for chil

dren born out of wedlock and to secure their support and

(bh) to secure support for deserted or abandoned ehitdren.

This is precisely what New York Social Services Law,

§ 101-a(2) (8) does.

The provisions of the Act do not, however, shift the

parents’ duty of supporting their children to the State.

Rather they are recognition of the existence of that duty and

amount to instruction to the States to enforce it.

C. 42 U.S.C. $602 (a) (7) requires that the States in

determining need take into consideration the income and re-

sources of a child or relative claiming AFDC. In fulfilling

such requirement, the State must take into account “any”

income and resources. The provisions of section 602 (a)

(7) did not shift parental support responsibilities from par-

ents to the State. On the contrary, such provisions are rec-

ognition of such responsibilities and place them upon the

parents where they belong.

We have demonstrated that New York Social Services

Law © 101-a(2) (3) furthers “basic concepts” pertaining to

parental support obligations and specific provisions of the

Social Security Act relating to the establishment of pater-

nity and the obtaining of support which are recognition of

such “hasie concepts”. But there exists another require

ment in the Social Security Aet which, we submit, amounts

to recognition of the duty of parental support, and which

virtually mandates that the States enlist the aid of the

parent or caretaker relative to obteon support front desert

ing or abandoning parent.

42 U.S.C. § GO2(a) (7) provides that a Staie plan must:

“(7) ** * provide that the State agency shall, in de-

termining need, take into consideration any olber in

come and resources of any child or relative clanaing aid

to families with dependent children, or of any other in-

dividual (living in the same home as such child and

relative) whose needs the State determines should be

considered in determining the need of the child or

relative claiming such aid, as well as any expenses ren

sonably attributable to the earning of any such in-

come ;”.

When AFDC was first inserted in the Social Seeurity

Act in 1935 (49 Stat. G27) the statute contained no method

for determining the existence of “need”.

The 1939 amendments to the Social Security Act sought

to cure this deficiency by inserting parallel amendments

in the Old Age Assistance Program (Title 1), the Aid to

the Blind Program (Title XN) and the Aid to Dependent

Children Program (Title TV).

Ilouse Report No. 728, relating to the Social Seeurity

Act of 1939 stated:

“The purpose of all three assistance programs is

further clarified by inserting the word ‘needy’ in the

definitions of those who may receive old-age assist-

ance,.aid to the blind, or aid to dependent children. A

closely related clarifying amendment is applied to all

three assistance titles and provides that the States,

in determining need, must consider any other income

and resources of individuals claiming assistance.” (7d.

p. 29, also Senate Report No. 734, p. 31)

The “elosely related clarifying amendment” which was

the precursor of the present-day's 42 U.S.C. © 602 (a) (7),

was the subject of specifie comment in the Reports. The

reason for the insertion of the “clarifving amendment” in

all three titles is to be found in the explanation of the

amendments to the old age assistance provisions of the

Social Security Act (Title 1). The Tlouse Report states

(p. 32):

“The present subject matter of clause (7) is strick-

en from section 2 (a) by the amendment and is treated

in section 102 of the bill. The amended elanse (7) is

effective July 1, 1941. Under this clavse the State plan

must provide that the State agency shall, in determin

ine need, take into consideration any income and re

sourees of an individual claiming ol-age assistance.

This will make it clear that, regardless of its nature or

source, any income or resources will have to he con-

sidered, including ordinary income from business or

private sources. Federal benefit insurance payments

under title II of the Social Security Act, and any other

assets or means of support. The committee recom-

mends this change to provide greater assurance that

the limited amounts available for old-age assistance in

the States will be distributed only among those actual-

ly in need and on as equitable a basis as possible.”

(Emphasis supplied.) Also Senate Report No. 734, p.

39,

The specitic amendment to section 602 (a) (7) relating to

AFDC was explained at pages 55 and 56 of the House re-

port in the following terms:

“Section 401 (b) adds a new clause, [to section 402

(a)] numbered (7), which becomes effective July 1.

1941. Under this clause the State plan must provide

that the State ageney shall, in determining need, take

inte consideration any income and resources of any

child claiming aid under this title. It also adds a new

clause, numbered (8) effective July 1, 1941, which re-

quires that the State plan must provide safeguards

which restriet the use or disclosure of information con-

cerning applicants and recipients to purposes directly

connected with the administration of aid to dependent

children. These new provisions are similar to. those

added to title Lot the Social Security Act by section 101

of the bill.” (Emphasis supplied.) Also Senate Re-

port No. 784, p. 66,

Section 602 (a) (7) as added by the 1939 amendments

read that a State plan must “(7) provide that the State

ageney shall, in determining need, take into consideration

any other income and resources of any child claiming aid

to dependent children”."®

15 Tt was not until 1962 that relatives were added as persons whose

‘ncome and resources Were required: to be considered, Also in’ 196%

provision Was first made for the consideration of expenses reasonably

attributable to the earning of income. Apparently the States had

been considering all income of relatives without provision in the law,

See 1962 U.S. Code, Congressional Administrative News, po UMS,

at 1959.

The Senate and House Reports of 1939 expressly stated

that “regardless of its nature or source, any income or re-

sources will have to be considered” (emphasis supplied), in

order to assure that the limited amounts available for as-

sistance payments in the States, “will be distributed only

among those actually in need and on as equitable a basis as

possible.”

In our Jurisdictional Statement, we argued that “limited

State welfare funds should be permanently expended only

on behalf of those truly in need” (J.S., p. 17). That posi-

tion clearly comports with what Congress had in mind when

it was said that State moneys should be distributed only

among those actually in need and on as equitable a basis

as possible.

In 1939, the relative was not a recipient of AFDC, but

only the child. We submit that the principal resource avail-

able to a child was the right of that child given to him by

State law to be maintained and supported by his parents.

The State is duty-bound by the provisions of 42 U.S.C.

“02 (a) (7) to determine the existence of need, and, as

stated in the House and Senate Reports, assure that assist-

ance “will he distributed only among those actually in need

and on as equitable a basis as possible.” Where the appl-

cant or recipient of AFDC fails to disclose facts about her

needs and resources within her knowledge, or to provide

euch information as will enable the local social services

aweney to ascertain and verify her needs and resourees, it

is not possible to determine whether she and her children

are actually in need. To hold otherwise would require the

local social services agency to determine the basie question

of “need” in the applicant's or recipient's favor where the

information crucial to that determination, the applicant's

needs and resources, is not available to the agency. In ef

fect, the local agencies would be required to make a gift of

public funds. Appellee Stuck may not place such demands

upon the public treasury (Wyman v. James, 400 U.S. 309,

322 (1971]).

The obtaining of such information is the only practical

means of complying with the provisions of 42 U.S.C. § 602

(a) (7) and of administering the program. See Saiz v.

Hernandez, 340 F. Supp. 165, 167 (D. New Mexico [1972]

| Mecuem, J.]).""

In Doe y. Shapiro, 302 F. Supp. 761 (D.C. Conn. [1969]),

app. dismissed 396 U, S. 488 [1970] (for late docketing),

rehearing den. 397 U.S. 970 [1970], the child, as well as

the parent, was denied public assistance for the failure of

the mother to cooperate. The remarks of District Judge

Crane, in dissent, have particular cogency in the context

of the case at bar where assistance payments are denied

only to the uncooperative mother but not to the child. Judge

Chari said (302 F. Supp. 761, at 768):

“The focal statutory provision which has application

here is § 602(a) (7): it reads in part:

16 This Court has recognized that a State AFDC plan “must ‘pro-

vide that the State agency shall, in determining need, take into con-

sideration any other income and resources of any child or relative

claiming aid’. Wyman v. James, 100 U.S, 309 at p. 315 (1971).

The home visitation by a social worker upheld in that case would

further compliance with the provisions of 42 U.S.C. § 662(a) (7).

As to the requirements of section 6U2(a)(7), a three-judge District

Court in Doe v. Norton, 365 F. Supp. 65 (D.C. Conn. 173) app.

pend, stated (p. 80):

“The defendant public official, who administers the laws under

which welfare assistance is given to these plaintiffs, is not only

authorized, but required, to proceed under the statute in order to

establish the primary obligation of the father to support his child

as one of the ‘resources’ which the state is entitled to consider in

ascertaining the plaintiffs’ eligibility for A FDC benefits. See 42 U.

S.C, § 602(a)(7)." (Emphasis supplied.)

‘(A State plan for aid and services to needy families

with children must) * * * provide that the State

ageney shall, in determining need, take into consid-

eration any other income and resources of any child

or relative claiming aid to families with dependent

children, or of any other individual (living in the

same home as such child and relative) whose needs

the State determines should he considered in deter-

mining the need of the child or relative claiming such

aid, as well as any expenses reasonably attributable

to the earning of any such income.’

It is fundamental in this statutory scheme, that the

sources of all family income be disclosed as a prerequi-

site to an applicant's qualifying for eligibility benefits.

Thus the mother’s disclosure of the known identity of

a legally liable putative father is certainly an essential

element in correctly evaluating the applicant-mother’s

support capabilities, as stated on the application in he-

half of herself and her dependent children. Her lim-

ited diselosure of actual current income is incomplete,

if any of the available sources remain unrevealed.

She is the actual party plaintiff in this action: it is

to her that the government welfare benefits are direct-

ly paid. It is through her, that the family unit is sought

to he preserved, as an essential unit of our society. She

is the actual recipient ef these moneys as head of the

household. Jt is the plan and expectation, that her

maternal interest as natural parent and quardian will

assure to the dependent child the full benefits of the

government allotment.

Unless the principle of personal parental respoust-

bility is to be abandoned, as an obsolete cornerstone for

gauging welfare eligibility, a full disclosure is a neces

sary and implied governmental prerogative, which

requires the applicant to disclose all relevant informa

tion. Absent this personal responsibility and coopera

tiveness between the appliecant-mother and the govern

ment, the effectiveness of the program would be seri-

ously challenged because she is the sole source of this

information; and without it the system designed to es-

tablish paternity could not function, See James vy.

Goldberg, D.C., 302 F.Supp 478 (June 138, 1969)". Cem-

phasis supplied)

ye)

St)

Judge CLarie’s comments bring into vivid focus the prop-

er role of 42 U.S.C. § 602 (a) (7) in the ease at bar. The

State, in determining eligibility, is clearly required to con-

sider suppert payments as a resource. New York does not

assume that since a parental duty of support exists, the sup-

port payments are in faet available to the mother (cf, King

v. Smith, 392 U.S. 309 (1968) and Lewis v. Martin, 397 U.S.

552 (1970). It does insist, however, that the mother assist

and cooperate in the realization of the resource which the

leeal obligation of the natural parent to support his child

creates. The failure of the parent to cooperate in the con-

verting of the support obligation to cash to be used in re-

ducing the cost of assistance, thus, permitting the State

to more equitably distribute its limited public assistance

funds, is justification for the discontinuance of AFDC to

the parent. To hold otherwise is to vest the administra-

tion of the State AFDC program in the uncooperative par-

ent rather than in the State ageney and to shift pre-existing

parental support responsibilities from parents to the States

contrary to the express provisions of 42 U.S.C, $602

(a) (7).

POINT II

New York Social Services Law § J01-a (2) (3) operates

within the legitimate sphere of State AFDC administra-

tion and serves legitimate State purposes. The State stat-

ute is valid even if it is held to create a condition for as-

sistance.

We have thus far argued that New York Social Services

provisions of the Social Security Act and that thus the

State statute does not create a condition of eligibility.

But whether Section 101-a (2) (3) is found to create a

condition of eligibility or not is irrelevant to the ease at

har. This Court has held that “so long as the State’s ae-

tions are not in violation of any specific provision of the

Constitution or the Social Security Act the courts may not

void them”. New York State Department of Social Serv-

ices V. Dublino, 413 U.S. 405 at p. 423 citing Jefferson v:

Hackney, 406 U.S. 535 at 545 (1972). New York's require-

nent of parental cooperation does not violate any specific

provision of the United States Constitution or of the Social

Security Act. Rather it operates “within the legitimate

sphere of state administration” (Dublino, 413 U.S. at p.

422) and is thus proper in any event.

Prior to this Court's decision in Dublino, the Court had

sununarily affirmed three District Court decisions in which

AFDC was denied to mothers and their children for the

failure of the mother to cooperate. These are Taylor v.

Martin, 330 F. Supp. 85 (U.S.D.C., N.D. Calif. 1971), affd.

sub nom > Carleson vy. Taylor, 404 U.S. 980-(1971) ; Meyers

Vv. Juras, 327 F. Supp. 759 (D.Or., 1971) affd. 404 U.S.

S03 (1971), reh. den. 404 U.S. 961 and Doe vy. Swank, 332

iM. Supp. 61 (ND. UL, 1971) affd. sub nom. Weaver v.

Doe, 404 U.S. 9ST (1971). In each of the cited cases, at-

tempts had been made to deny AFDC benefits not only to

uncooperative mothers, but to their children as well. The

Court’s summary affirmances appear to have been ground-

ed upon the holding of Ning v. Smith, 392 U.S. 809 (1968)

that the appeal in that case raised “* * * only the question

whether the State may deal with * * * problems * * * by

flatly denying AFDC assistance to otherwise eligible de-

pendent children.” (p. 320) (Emphasis supplied.)

It is also possible that decision in those cases was prem-

ised upon the specific provision of 42 U.S. C. ¢ 602 (a)

(11), the original NOLEO provision, which had heen con-

strued by IEW to expressly preclude the denial of assist-

ance to the child.

Where efforts were made by the States’ to discontinue

only the mother’s grant, but not the children’s, for her

‘ailure to cooperate in obtaining support from the father

of her children, the Courts held such efforts to be unauthor-

ized. Thus. in Doe v. Harder, 310 F. Supp. 302 (D.C. Conn.,

1970), app. dis. for want of jurisdiction, 209 US. 902

(1970). The District Court in Connecticut had before it a

revulation of the State of Connecticut which had been

sinended to provide for termination of AFDC payments

to the mother rather than to the children. if the mother re-

fused to name the child's father."

The Court held (p. 303):

“This regulation, while in form directed at the mother

rather than the child, has the same vice as the origi-

nal. It reduces the assistance to the family by creat-

ing an additional eligibility requirement identical to

that held invalid and not authorized by the federal

statute.” .

Other Courts followed the lead of the //arder Court and

invalidated similar requirements in other States. See

Woods v. Miller, 318 F. Supp. 510 (W.D. Pa. 1970): Doe

v. Lavine, BAT F.Supp. 357, (S.D.N.Y. 1972) and Doe v.

Giliman, BAT F. Supp. 482 (N.D. Lowa, 1972) modified 479

Ed 646 (Sth Cir. 1973) petition for certiorari pending

cub vom... Burns v. Doe, No, 73-406.

The Court below, the Harder Court and those dee sions

which followed its teaching failed to recognize that regu-

Tn Joey. Shapiro, 302 F.Supp. 761 (D.C. Conn, (1969)), app.

lis. O96 17S. 488, rel. den. 397 U.S. 970 (1970) the Connecticut

Court had enjoined the operation of a State regulation providing for

termination of payments to an illegitimate child if the mother refused

to name the child’s father. Connecticut then sought to withhold

assistance only from the mother.

lations promulgated within the legitimate sphere of State

administration are valid (Dublino, 413 U.S. at p. 22) so

long as “they are not in violation of any specific provision

of the Constitution or the Social Security Act” (Dudblino,

p. 423, footnote 29, Jefferson v. Hachney, 406 U.S. 535 at

541 (1972)). Nor did the Courts take into account the in-

struction of Wayman v. James, 400 U.S. 309 (1971) or

Charleston v. Wohlgemuth, 332. F. Supp. 1175 (D.C. Penn.

1971) affd. 405 U.S. 970 (1972).

In Wyman v. James’ this Court recognized that AFDC

could be denied to a family unit for failure of the waother

to permit a home visit by a social worker. Tite Court noted

that the choiee was entirely up to the welfare mother (400

US. at 324) and stated (400 U.S, at 325):

“The only consequence of her refusal is that pay-

ment of benefits ceases. Important and serious as this

is, the situation is no different than if she had exer

cised a similar negative choice initially and refrained

from applying for AFDC benefits”.

On Marcel 6, 1972, the Court summarily affirmed Charles

ton Vv. Wohlgemuth, 405 U.S. 970 affg. 332 F. Supp. 1175

(D.C. Penn, 1971) in which the Court sustained a decision

of a three-judge Court that regulations requiring AFDC

applicants who owned certain types of real or personal

property to agree as a condition of receiving assistance, to

reimburse the Commonwealth for assistance reeeived and

to give a lien on the property as security did not conflict

with the Federal Social Seeurity Act. The Pennsylvania

District Court had expressly stated that “The duty to exe

eute the forms rests with the adults: the denial of bene-

fits extends to the entire family unit™ (p. 1181).

** The home visitation requirement involved in James was held to be

“within the legitimate sphere of State administration” Dublino (4153

U.S. at 422).

So long as State action is within the “legitimate sphere

of State administration” (Dublino, p. 422) there is no im-

pediment to the State's denial of assistance to a family unit

inclusive of the mother, Notro cases by reason of the

express provisions of 42 U.S.C. \ GO2(a) CEL) appear to

preclude denial of assistance to the child but that statute

does not operate for the benefit of the mother whose grant

may be withheld.

True it is that the denial of assistance to the uncoopera-

tive mother as a practical matter operates to reduce the

total grant of assistance to the family. ‘There is, we sub-

mit. ne “vice” involved in such result so lone as the choice

iy bringing that result about rests upon the mother and

net upon the State."

New York. as well as the Congress, has a legitimate in-

terest in obtaining support for deserted or abandoned

children. The New York State Department of Social

Serviess in a report entitled ‘Characteristics of VDC,

Families in New York State, January 1971", dated Sep

tember, 172. hased wpen a sampling, found that in regu-

lar AFDC honscholds” in 20 of the cases the father

18 The Court below referred to House Report No, 100 relating

to the 1930 amendment of #2 U.S.C. § 606(b) as recognizing “the

interdependency of provisions for and to the child and tts caretaker

mother” (0.8. 27) That “interdependency” is irrelevant to the case

at bar in which the mother seeks to obtain AFDC “upon her own

informational terms” (Wyman vy. James, 400 TAS. at S21). Ta am

event, it appears that the principal purpose of the 1950 amendment was

to enable States which had been making provision for adult relatives

to make parments “that are more nearly adequate” and to inchide

euch a relative “as a recipient for Federal matehing purposes” (House

Report No. 1300 of 1950, pp. 15-16),

2° Not including ADC-U households where the father is not em-

ploved and is in the home, (New York’s program is designated “ADC”

rather than AFDC")

had deserted the family, while in 28.°% of the cases the

father was not married to the mother. These figures have

been updated to January of 1973 and show that the deser-

tion figure remained constant at 290 of the cases while the

‘ategory of “father not married to mother” liad increased

to 42.4 of the cases.*'

The 1972 report had stated: “Statewide, the place of

residence of living ADC Regular fathers was not known

to the caseworker in 56% of the cases: in 120 of the cases,

the father was either in the home or in an institution, and

in the remaining 32 the father’s place of residence was

outside the home or institution but known to the case-

worker.” The 1973 update closely parallels the 1971 fig-

ures,

It is estimated by the New York State Department of

Social Services that the cost of the AFDC pregram to

New York State for fiseal vear 974-75 will be in exeess

of $358 million. The cost of the program to the 64 loeal

Social Service districts of the State will be approximately

equal to the State figure with the Federal contribution

amounting to approximately the combined total of the

State and loeal expenditures. New York's interest in ex-

plorme and utilizing every possible means of obtaining

support from such fathers is very real indeed.

This Court in New York State Department of Social

Services Vv. Dublino, 413 UL S. 405 (1973) recognized that

there are areas within the AFDC Program that are basic

to that Program and in which a State as well as Congress

has legitimate interests and that the “Court should not

lightly interfere” where the State is attemping to assure

"The January 1973 figure included all ADC households including

those in which an unemploved father is in the home.

that limited State welfare funds will be spent on behalf

of those genuinely incapacitated and most in need or where

the State is attempting to copy with fiscal hardships (418

U.S. at p. 4138).

Congress inserted certain provisions in the Social Se-

eurity Act in 1967 intended to aid the States in obtaining

support from deserting and abandoning parents, but those

additions (section G02-a[18][21] and }22]) did not, we

submit, establish an “exclusive mechanism” for obtaining

support from deserting and abandoning parents (413 USS.

at p. 411, footnote 9). Tf Congress had intended te estab-

lish an “exclusive mechanism” for obtaining support pay-

ments such “* * * intentions would in all likelihood have

heen expressed in direet and unambiguous languave. No

such expression exists, however, either in the federal stat-

ute or in the committee reports.” (418 U.S. at p. 414.)

Here no less than in Dubline, the act clearly “allows for

complementary” programs and procedures to obtain: sup-

port from a deserting or abandoning parent “even if they

become conditions for continued assistance” (413 U.S. at

p 422) or for any assistance.

CONCLUSION

The order appealed from should be reversed and New

York Social Services Law, § 101-a (2) (3) should be de-

clared valid and constitutional in all respects.

Dated: July 15, 1974

Respectfully submitted,

LOUIS J. LEFKOWLTZ

Attorney General of the State

of New York

Ruru Kessiter Tocu

Solicitor General of the State of New York

Aan W. Rupenstern

Principal Attorney, State of New York

of Counsel

APPENDIX A

Statutes of the United States

“42 U.S.C. § 602°

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

with children must

x * *

“(7) except as may be otherwise provided in clause

(8), provide that the State agency shall, in determining

need, take into consideration any other income and

resources of any child or relative claiming aid to

families with dependent children, or of any other indi-

vidual (living in the same home as such child) and

relative) whose needs the State determines should be

considered in determining the need of the child or

relative claiming such aid, as well as any expenses rea-

sonably attributable to the earning of any such income:

“(11) effective July 1, 1952, provide for prompt no-

tice to appropriate law-enforcement officials of the

furnishing of aid to families with dependent children

in respect of a child who has been deserted or aban-

doned by a parent:

“(17) provide—

“(A) for the development and implementation of

a program under which the State ageney will under-

take—

(i) in the case of a child born out of wedlock who

is receiving aid to families with dependent children,

to establish the paternity of such child and secure

support for him, and

(ii) in the case of any child receiving such aid

who has been deserted or abandoned by his parent,

to secure support for such child from such parent

(or from any other person legally liable for such

———

* 1973 pocket part, page 106 ef sey.

Appendix A—Statutes of the United States

support), utilizing any reciprocal arrangements

adopted with other States to obtain or enforce court

orders for support, and

“(B) for the establishment of a single organiza-

tional unit in the State agency or local agenev admin-

istering the State plan in each political subdivision

which will be responsible for the administration of

the program referred to in clause (A);

“(1S) provide for entering into cooperative arrange-

ments with appropriate courts and law enforcement

officials (.A) to assist the State ageney in administer-

ing the program referred to in clause (17)(A), in-

cluding the entering into of financial arrangements

with such courts and officials in order to assure opti-

mum results under such program, and (B) with re-

spect to any other matters of common concern to such

courts or officials and the State agency or local agency

administering the State plan;

a * ad

“(21) provide that the State ageney will report. to

the Secretary, at such times (not less often than once

each calendar quarter) and in sach manner as the

Secretary may prescribe—

“( A) the name, and social security account num-

her. if known, of each parent of a dependent child or

children with respeet to whom aid is being provided

under the State plan—

(i) against whom an order for the support and

maintenance of such child or children has been is-

sued by a court of competent jurisdiction but whe

is not making payments in compliance or partial

compliance with such order, or against whom a peti

tion for such an order has been filed in a court

having jurisdiction to receive such petition, and

(ii) whom it has been unable to locate after re.

questing and utilizing information included in the

files of the Department of Health, Education, and

Welfare maintained pursuant to section 405 of this

title,

Appendix A—Statutes of the United States

“(B) the last known address of such parent and

any information it has with respect to the date on

which such parent could last be located at such ad-

dress, and

“(C) such other information as the Secretary may

specify to assist in carrying out the provisions of

section 610 of this title;

“(22) provide that the State ageney will, in accord-

ance with standards prescribed by the Secretary, co-

operate with the State agency administering or super-

vising the administration of the plan of another State

under this part—

“(A) in locating a parent residing in such State

(whether or not permanently) against whom a_peti-

tion has been filed in a court of competent jurisdiction

of such other State for the support and maintenance

of a ehild or children of such parent with respect to

whom aid is being provided under the plan of such

other State, and

“(B) in securing compliance or good faith partial

compliance by a parent residing in such State (wheth-

er or not permanently) with an order issued by a

court of competent jurisdiction against such parent

for the support and maintenance of a child or children

of such parent with respect to whom aid is being pro-

vided under the plan of such other State.”

APPENDIX B

Brief in the District Court Concerning “Substantiality”

POINT T

PLAINTIFFS DO NOT RATSE A SUBSTANTIAL

CONSTITUTIONAL QUESTION,

In what is an apparent recognition of the insubstan-

tiality of their constitutional argument, plaintiffs have set

such claim out as the second cause of action in their

amended complaint while devoting the first cause of action

to the pendent statutory question thus putting the cart be-

fore te horse. Of a certainty, however, it may be said

that in the absence of a substantial constitutional claim this

Court lacks jurisdiction to entertain this action (see Point

Il infra).*

Plaintiffs’ equal protection argument, as set. forth at

page of the complaint, is that:

“Defendants’ action in erecting an additional re-

quirement of eligibility constitutes a denial of equal

protection guaranteed by the Fourteenth Amendment

to the Constitution of the United States, in that. it

creates an invidious and unjustifiable distinetion. New

York's action in this case requires that impoverished

mothers institute and cooperate in proceedings against

their children’s fathers: no such requirement is) im

posed on the well-to-do. Marriages of the well-to-do

are not driven asunder by forcing one spouse to prose

cute another. Classifications based on wealth have long

heen recognized as peculiarly obnoxious to. the prin

ciples of equality enshrined in the Fourteenth Amend.

ment.”

* It is at least questionable whether the Federal Constitution may

be utilized to permit a mother to force an avency to provide her and

her children with public assistance upon her own terms. Cf. Wayman

v. James, 400 US. 309, at 321, 322 (1971).

Appendix B—Brief in the District Court

Concerning “Substantiality”

The lack of substantiality of plaintiffs’ constitutional

contention will be demonstrated.

There is no compelling State interest which requires that

the so-called “well-to-do” proceed against their children’s

fathers for support so long as such support is not required

for their maintenance. The compelling State interest be-

gins te appear when the child or mother is liable to become

in need of publie assistance or care (New York Family

Court Act, $415) or has been granted public assistance or

eare. The distinction here, if indeed there exists one, is

entirely rational

Plaintiffs further seek to show a “distinction” by claim-

ing that “Marriages of the well-to-do are not driven asunder

by forcing one spouse to prosecute another.” Intervenor

Stuck is the only party to this action who has made anv

factual allegations in the amended complaint. These, how-

ever, do not refer to a non-support action, but rather to

determining the paternity of her yvoungest child, a state

of facts which obviously does not arise out of a marital

relationship. She lacks standing to make such an argu-

ment (Cf. following, Doe vy. Ellis, 350 F. Supp. 375 [D.C.

South Carolina, August 23, 1972]) and none of the named

plaintiffs have made any factual allegations in the amended

complaint in support of such an argument. While noting

this fact, we point out, as to married plaintiffs, that implicit

in their argument is the assumption that it is perfectly all

right for the man to move out of the house for the purpose

of gaining AFDC for his family. To say that the marriage

is not already “asunder’* would be to imply a fraudulent

motive to the plaintiffs aad to the fathers of their children.

Plaintiffs’ argument is specious on its face.

Appendix B—Brief in the District Court

Concerning “Substantiality”

Plaintiffs’ third attempt to establish a “distinction” is

hased on an argument that “Classifications based on wealth

have long been recognized as peculiarly obnoxious * * *.”

OF course, this ground of attack must draw its viability

from plaintiffs’ other two alleged grounds of “distinction”.

Since these grounds are without Viability perforce the en-

tire argument falls in.

We are not dealing with a requirement that a eriminal

work off a sentence at the rate of $5 per day as in Williams

V. HMlinois, 399 U.S. 235, or a ease in which some criminals

are afforded a stenographic transcript of trial proceedings

where others are not as in Griffin v. linois, 351 U.S. 12

(1955), or a ease where a thief was subject to sterilization

but an emabezzler was not, as in Skinner v. Oklahoma. 316

UWS. 527, all cited by plaintiffs in their brief in the original

case as support for their position. Rather. we are dealing

with a classification which the Supreme Court of the United

States itself has recognized, i.e., “the poor and the needy"

(Jefferson v. Hackney, 406 US. 535, at page 546).*

Plaintiffs have not presented a substantial constitutional

argument.

As will be shown, Social Serviees Law. § 101-a(2)(3)

serves a compelling State interest and has a rational basis.

* Cf. Luscaris vo New York State D. partment of Social Services

et al., 67 Mise. 2d 17%, (Supreme Court, Special ‘Term. Onondaga

County, 1971) where the Court said (p. 22):

“There would indeed be a ‘double standard’ if the mother acting

under the terms of the Domestie Relations Law was required to

make disclosure in order to get the assistance of the law, while

the applicant for public assistance was required to give no in-

formation to help locate the father. and would stil] get the full

benefit of the iaw.”

Appendix B—Drief in the District Court

Concerning “Substantiality”

The standard for distinctions made in allotting finite

state publie assistance payments is whether the classifica-

tion created has a rational basis. In Dandridge v. Wil-

liams, 397 U.S. 471 (1970), the Supreme Court stated (397

U.S. at 485) :

“Tn the area of economies and social welfare, a State

does not violate the Equal Protection Clause merely

hecanse the classifications made by its laws are im-

perfect. If the classifieation has some ‘reasonable

hbesis’, it does not offend the Constitution simply he-

cause the classification ‘is not made with mathematical

nicety or because in practice it results in’ some in-

equality.” Lindsley v. Natural Carbonic Gas Co,, 229

U.S. 61,78. ‘The problems of government are practical

ones and may justify, if they do not require, rough

apencneir age slay, Spa it may be and unscientific’

Metropolis Theater Co. v. City of Chicago, 228 US.

61, 69-70. ‘A statutory Hantaiantion will not he set

aside if auy state of facts reasonably may he conceived

to justify it’ IWeGowan \ . Maryland, 366 U.S. 420,

426."

In Jefferson vy. Hackney, 406 U.S. 5385 (1972), the Supreme

Court reaflirmed this standard and added (406 U.S. at 546-

47):

“A legislature may address a problem ‘one step at

at a time’, or even ‘select one phase of one field and

apply a remedy there, neglecting the others’ * * ase

- * ¥

“So long as its judgments are rational and not in-

vidious, the legislature’s efforts to taekle the problems

of the poor and the needy are not subject to a consti-

tutional straitjacket. The very complexity of the prob-

lems suggests that there will be more than one consti

tutionally permissible method of solving them.”

Appendix B—Brief in the District Court

Concerning “Subsiantiality”

See also Hagans v. Wyman, 471 F. 2d 347 (24d Cir, Janu

ary 8, 1973) ret. cert. pending, where the Court said:

“However it is not for us to evaluate the wisdom of

of the states’ choiee of means. If these means are

rationally related to a proper end * * * we have ne

power to go further.” (p. 350)

One cannot deny the compelling interest of the State in

enacting Social Services Law. § 10L-a(2)(3) or the fact that

it is reasonably caleulated to accomplish the purpose of

requiring legally responsible parents to support their de

pendents and to ease the State's burden in this regard,

Judge Gurrei, writing in Doe vy. Larine. 347 BP. Supp.

897, 862 (S.D.N.Y., 1972), although finding for the plaintiffs

on statutory grounds in another NOLEO* case based upon

seems quite logical to pursue every means of requiring a

putative father to support his child out of wedlock as a

means of cutting the relief rolls * * *",

Judge Brivanr in Lewis vy. Lavine. F. Supp.

(S.D.N.Y., December 20, 1979) in granting preliminary re.

lief in a NOLEO ease involving Social Serviees Law.

‘101-a stated:

“It would seem self-evident that a welfare recipient

who has an estranged husband who has abandoned her

support and the suppert of the children, ora father of

her child, whose name she refuses te disclose, may

thereby have financial resources the existence of which

prevents her eligibility. She receives assistance ou

her own behalf, as well as in behalf of the child for

whom she cares, 42 U.S.C. 66 601, GO6(b). Needs are

* Notice to Law Enforcement Offic rs

Appendix B—Brief in the District Court

Concerning “Substantiality”

the basis for publie assistance, and relate to financial

resources potentially available to the applicant from

any souree, including the obligation of a responsible

relative, such as the father of a coild, legitimate or

otherwise. 42 U.S.C. § 602(a)(7).

“Such financial resources of a welfare applicant can-

not be found, under the cireumstances of this case,

without the cooperation and assistance of the mother.

The State of New York has a very real interest in

fastening financial responsibility on the missing father.

In New York City alone in 1971 there were 16,622

out of wedlock births to AFDC recipients. An esti.

mated 70% of all children born to AFDC recipients

are born out of wedlock (New York Times, Mareh 21,

L972, p. 31, col. 1).

“It seems monstrous that the state officials, who are

expending state resources as well as federal resources,

are unable to fasten responsibility upon such persons,

and they will be unable unless they can compel the

recipient to cooperate and disclose the necessary in-

formation.”

Indeed, the Social Security Act itself requires the State

agency in determining need to take into consideration any

other income and resources of any child or relative claiming

aid to families with dependent children. See 42 U.S.C.

\602(a) (7).

That the statute has a rational basis and serves a compel-

ling State interest is further demonstrated by the memo-

randum from the Assembly Rules Committee in support

of Assembly No. 12216 of 1972, which became chapter 687

of the Laws of 1972. That memorandum said:

os)

Appendix B—Drief in the District Court:

Concerning “Substantiality”

“MEMORANDUM IN SUPPORT

“An Act to amend the social services law and the

penal law, in relation to paternity and support. pro-

ceedings against deserting parents.

“Purpose oF THE Bins This bill amends section

101-2 of the social services law by requiring a recipient

parent or spouse, or the social services official. to file

a petition for support against the deserting father or

spouse, It also amends section 372-2 to require added

information to be filed with the Central Revistry for

Location of Deserting Parents and amends section

260.05 of the penal law to prevent the mere seeking

of public assistance constituting a defense for non.

support.

“JUSTIFICATION roR rHe Bias In January 1972, the

state had over 350,000 dependent children families on

public assistance representing a 12-month increase of

almost 18,000 families the great percentage of which

were deserted by fathers.

“Existing law permits mothers, relatives and social

service officials to find and collect support from these

deserters. The 1971 department of social services

report states that some 2,000 such fathers were found.

The annual public assistance payments on behalf of

these families is in excess of $1.2 billion—out of which

it has been estimated that $19.5 million will be collected.

“Federal law requires the states to find and collect

from these fathers and this bill will strengthen the

state’ plan of implementation.

“Fiscal IMpiicarions: Considerable savings would

le realized if the above bill were implemented.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.