Supplemental Brief — Roe v. Norton

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| Appellant mothe raely with the 4

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. | dictate lecision of th 1] clair on the "NOY ts by the fede l

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| court: The ae ‘lilant | < ct rothers ré r etfull ur + bye

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i Court to reverse the District Court decision denying t! r

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» | declaratory and injunct} relief,

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Q | Appellant re eet full ‘ "it that neither cc ty nor

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i a} tr, nt ror 9 hot h edt ,* , ] cd Ps Yr} or mol« ea in a Ca St hy CA

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| | fashion to resolve someti elicate questions of federal ,

| chou! ; ne Sele &. ; rh th} CA P, 7 ; tnat + " mractise l - 1 +

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(1¢ +) 5 | necessitate decisior aon morit in the fers 1 court ,

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(19 3) 1 | l tings Court state j in Toarnr . r Vasant P 41] , , ‘ 192, 2011

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) 9 1 In equity, a re else, court eschew rigid absolute:

| and look to the practical realities nd necessitile:

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3 , é} . | inescapably involved lig reco 112 r competir intere t peer

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This brief will examine those practical realities of federalisz

involved in this

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QO (1971) 1 Younaer v t4 ris 401 U.S. 37, 27 LEA€2d 669 (1971 ) ana

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} 3,7 . © Samuels v, Mackell 401 U.S. 60, 27 LEd2d 688 (1971) did not remove

(1971) *>h federal District Court jurisdiction over constitutional questi

| pending in proceedisr in state courts, Nor did they requir

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pnoninte rvention in all case in which such uest1o we? pend) .

3 |Rather, both directed District Courts to predicate >oxercise of

7 their equitab] urisdiction on the familiar orinci eo ¢ + a

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| except

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eee eeeee pas 1M. |court shoul i not exerci f rts equita le yuri dictlion/is t

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{ Frrrerrrrreiys | pa Ose nen '@) ar) Pa) 1eETuA ‘ rere + i? lav, The i‘, rt < anpnplicati« ‘

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this amiliar doctrine th mmeaetance : in _} —_ ‘ eral ‘at » P mre

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j asked to enioin state criminal proceeding was to direct the

District Court to defer to those ending tate criminal proccealn {

they found adequately desinned to vindicate the federal right: |

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\ And th itate’s bri here, like its brie below, 15 conf ine

t} a Po tate jud in thoee « ' hevr

| exclusives ly to the om rit e Since the purpose of comity is

l the 3 to act ef festiuatn !

deference to available state proceedin S$, and the state proce:

} t it 3 Inappro late for the Our to

} | here have claimed no such deference, appellants can perceive

‘a2 ro} ward iction over this case on the bas of |

no reason this Court should not decide the merits, a position

ine ity, ‘ relore ° In the case of the two pl ntiff |

le apparently concurred in by Connecticut's judiciary and executive

I) me be 4 trial yort (state) } ( hown no desire t«

branch, See 205na_v. Towa _U.S.___, 42 LEd2d 532, ne3, (1 .

. On the contrary, they |} e twice cranted

Nor is it apparent that the considerations of federalism in- |

i St 2) ? a ntat) ré hoth ce r e] hat federal conste | |

| forming the comity doctrine require any deference to state court |

if t f fun ntal rele nee were end) in the

, where issues arising under the supremacy clause, viz. the clair

feceral] ts . rn t fr nt the case have been removed to

here arising under the Social Security Act, are made, Fven if

if t 1} te : t final determination of thos 1 ;

Younyer questions could not generally be waived, appellants can

rr re. 7 ] . oB, A . 4a, 13a, ee the Tate | |

| see no reason to fail to recognize waiver where, as here,

|| co or f¢ ral decision to be unwarranted intere- |

Supremacy Clause issues may well be dispositive, |

r per na proceedings. On the contrary, althou

. Even if there were disaqreement between the parties over

i t edicated the stays explicitliv on the doctrine of

H . . the comity question, or a waiver were not recognized, this is

|} trial co ine tence, they have welcomed the federal surts?®

| ; ; re not an appropriate case to preclude federal decision based on

| ¢ re thelr civil rights act jurisdiction, Counsel for the

the Younger doctrine, The District Court found, without objectior

|Appellee apparently concurs with the mothers and childrens desire

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that the case was properly maintainable as a class action under

or " an Se £ i] ir Ge Seo Chi ldren's dei 25 There is |

. wae 4 ‘ . . */9 /* eee + ~~ |

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| Rule 23(b)(2), Federal Rules of Civil Procedure (F. R. Civ. P),

}} me thing he Dist? t Court record which supports the inference

| and desiqnated subclasses of mothers and children. ‘Thus it

that cou there, who was an experienced federal litigator, did |

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| 5 found appellants to be appropriate representatives oF a subclans: ; ©

nna? cle ’ Myc is rn “he mori te e On the contr y , +}

of mothers which it defined without regard to the pendency of

: wee) ‘1 or 1} thy cor ] i¢ »« ari n in the COT ] rint?; © irt |

! ‘ , State proceedings, App, 131. To deprive those members of the

1a r : P = of CO it. or of abster +ior Aop 55

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ciass not yet parties to a state proceeding of an adjudication

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se ‘ , ‘ 1° aS a class in this action would be contrary to the civil richts

oO vu! nt ebruary 25, 75 the undersianed repre it '

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bey ' P onst : : y OF OF ; act and Rule 23 where there is no conflict of interest amon

fin q nm state court, In fact, a review of the rec P oe

ithat ¢ dons il a part « otions to stay orc if , ‘ be ;

' week ani ; 59 ~pagye ie . ; class ners and no apparent doubt of the competence with which |

y } ,T¢ Tv r - r) Seon , re ae hi ;

for t ‘ ttor for th OmMmMissitoner raised tne wt the ' } , ted e 11 j ifi i ld |

SS 1 mo } va) — - ne ee y sla > Ff i 3

irt®s oc ts to declare the statute unc ta - aoe Sa fen presented, Equally nificant, it wou

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| wi merely necessitate a new federal action by other members of the

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. rsh , rot . OUFT O1 . class, great duplication of effort by all concerned, some delay

ni] ‘ ‘ f 0) t bie t tition since anpel) mts 11) ‘ ° . ‘ - * 7°

t their co j nt, DDe tt, acs itted, App. %%%

extension, for all of the several reasons autlined at !

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| Tale feriver the dj trie? *") irt °s cle ; ror be] rw) , alr bare ¢ ms -.

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| Tha invasci e +) = 7) , ; The reasons cited for indicating that federal courts should |

iI The invasi< of tl mothe constitutional ri t to privacy . 7 on eel retin as

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I “complished by Sect} e>_AAn Pa abstain from decision on federal constitutional questions withi

H 1 13 hod by Section 5?-440b occur: well } fore petitioc: + 6, if 1%] } mn al TIS t-utiona jues n 1 mn

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1 compel disclosure are brought in state court, with the ma ‘or their jurisdiction are the po bility of an adjudication of a

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decisior of Hho Wg 1, rm Ts rhortrent to intervene App Pe “Tiny State law que sStion by stat bd courts SC aS to 1 > o! Vilate t hic rece

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| a de ce to uch a petition could never, becau @) the iture for any tederal constitutional id judication, t1Jroadc Co: Lor

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; or the richt 9 af of the violation vindicate the richt T ; Ve Pull an CO. 312 l ee 496, 85 LEd 971, or 2)siocr fic ntly

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| 18 SO quite apart from the actual adequacy of state remedies in modify the federal claim, Harris County Cormissioner: Vv, Moore

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| the pendina proceeding And the remedies availabli in thi a Woe » 43 LW 422? (1975). To the extent that it relies on

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re no mor adequate to protect the mother ricch? than thev at assumed superiority of state courts to determine questions of st

en ; . ; . he Oncidce sti ane cor : Qn> ; : |

| to protect the interests of children, See Children® Be 21024. law, the considerations set out regarding comity are equally

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| Refusal of the federal courts to decide this case under the applicable to Pullman abstention ,

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} Lounger octrine 1S also Inappropriate where, as here, the This Court has on at least two occasions de Clined, after

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} Plaintiffs attack the public nature of and failure to provide raising an abstention question sua sponte, to look behind a

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|| adequate procedures in, that very state proceeding which is j desire of the parties for decision on the merits, Hostetter v, .

Idlewild Liquor Corp. 377 U.S. 324 (1964), Broadrick v, Cklahora

pending. This is particularly true where the state courts have

held, as Connecticut's have, that the type of proceeding in que: 413 U.S. 601, 37 LEd2d 830 (1973), A sound reason for that

| tion is not subject to due process safeauards, See In re Clark policy is that unless a party raises such questions, the Court

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| 65 Conn, 17, 31 Atl 522 (1895). | can generally assume that there is none dispositive of the case

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Finally, the state has consistently maintained that petitic and the parties cannot be assumed to be relying on any particular

j uncer ©€.G.S. Section 52-440p> are civil in nature *, Even if tha‘ interpretation of state law, In this case neither the State of

Conclusion were incorreec? i¢ would nonetheless serv: +o indico? Connecticut nor the Court raised anv que stions of state law which !

i + Connecticut ha scribed a lesser importance to unencumber: | could conceiably dispose of the case favorably to plaintiffs with=|

ant ewe nt tha Auld } the case if it @ inated such petit out adjudication of the federal questions. Nor has there been |

I civin. oe ee cy, Harris (supra) at 55, n.2, (Stewart, J, any Suggestion of any unsettled questions of state law of substant+

| concurring). To cate this Court has declined to extend the ial import:nce to the federal issues, And the statute clearly

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i Younser doetrine to civil cases Apoellants submit thet th: could not be upheld without ad judication of the several constit-

| present case 15 a singularly inappropriate one fer such an utional claims, On the contrary the briefs of all parties are

a . confines Almoct soe Deve ius ly to argument Or the merits oO’ the

Counsel] reiterated this position at oral arqument

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fodder »] claims ralte< mo ap ‘lice , cla? - about 1

matters arque not that the mleintiff class miqht be entitted to

a declaratory judament in state court, OF even that the basic

Claims here would be put in a different settinac, but at most

that other classes may be similarly disadvantaged .

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This is an inappropriate case for abstention, While there

may catkent of state law of marginal relevance to son

claims, viz, availability of appointed counsel for mothers or

auardians ad litem for children, neither the District Court

nor the parties relied on a particular interpretation of these

issues, App. 139, no14. Such questions could not be i spositive

of this case or of a hypothetical class action brought in state

court. There are, to appellant’s knewledae no serious unsettled

state law questions relevant to appellants substantive clainss

conflict with the Social Security Act and violation of their

right to privacy. Nor is there state court authority favorable

to the position appellants would have to assert in state court,

compare Harris County Commissioners v, Moore (supra). There 15,

in short, no state law question of which counsel is aware which

is substantial enouch to warrant, much less to mandate, abstentic

in this case,

There is, of course, no lack of state administrative

interpretation of Section 52-440b; appellants seek, inter alia,

to enioin enforcement of Department administrative policies

implementina the statute, App. ll. Several trial courts have

had the onportunity to construe the statute and have not

narroved it to avoid the constitutional claims appellants

raise, Children’s Br. App. Ja-48a, Amicus Ir. App. law-44a. -OF

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are state appellate courts likely to resolve any sSucr 1S5

since review is at most restricted and at worst nonexistent»

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See Children’s &.u. 21-24, The second premise for abst BesaNe

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POCSivbiait y Was astate ct

conetruction which would sianificantly modify the federal issu

is lacking here ,

Even if the waiver were disreaarde®, the undecided question:

were of great sianificance, and there were a substantial possibi

of state constructions which would avoid the necessity of

constitutional adjudication in the case of individual appellant’®

abstention would not be indicated here, Connecticut has no

Class action provision comparable to Rule 23 F. R. Civ. P. In

order to proceed on behalf of the class, apnellants would have

to initiate a declaratory judgment action and give notice to all

Class members3; Conn. Cen, Stats Section 52-29, Conn, Practice

Book Sections 307-312. See, Especially P.!!. Section 399(4),

Compare Rule 27(b)(2) F.BR. Civ. P. And see Sosna v, Towa U.

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to do so, An attempt to raise all such issues defensively mict

fail and in any case would result in truncated adjudication,

substantial delays and vast duplication of effort. Quite apart

from the procedural difficulties with direct or habeas corpus

review of 52-440b decisions by appellate courts, and from the

Townsend doctrine (See Children’s S.3. 21-22), there is simply

no acequate, actually available state remedy the appellant class

could utilize to obtain a determination of any such undecided

questions, Under the circumstances, abstention is inappropriate.

» 42 LEd2d 532, 539, n. 4 (1975). Obviously they cannot affor

ee a ne ee

t neither considerations of comity nor the

tion } ippropriately applied to relegate

o their state courts and remedies, This case

lilly appropriate for federal decision on

for declaratory and iniunctive relief,

RESPECTFULLY SUBMITT

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CO’ CTT , CaVane bon 2TIES

UNION FOUNDATION, INC.

57 Pratt Street

Hartford, Connecticut 06103

ATTORNEY FOR APPELLANT MOTHEXS

rds Mich 1 A. Arcari,

orney General 90

; } 9 “> in ar