Jurisdictional Statement — Maher v. Doe

Supreme Court brief1977

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| MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

Octroser TERM, 1975

No. W6- g78

EDWARD W. MAHER, Commissioner of

Social Services of the State of Connecticut

Appellant,

Vv.

DONNA DOE, ET AL

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF CONNECTICUT

JURISDICTIONAL STATEMENT

OO lle_l_5_050Oe_e_eeeelle

Car. R. AJELLO

Attorney General

30 Trinity Street

90 Brainard Road

Hartford, Connecticut

MICHAEL ANTHONY ARCARI

Assistant Attorney General

30 Trinity Street

Hartford, Connecticut

OU ——

SUBJECT INDEX

Page

ND TID WOO isan i500 0s ka'eseiNennsacens 1

SN CD “kieuek te s50560accadauewes cecueeeeans 1

Ec xcik bead cua tSaeu anak in eeaea Re bate ies 2

Questions Presented by This Appeal ................... 3

EE 56s do 50d J kag ch exdewedne<oiecens 4

ee tr SU IE Se Sula cysenchsewknbeacesons 4

The Questions are Substantial ........................ 8

INDEX TO APPENDICES

A. Memorandum of Decision .................... la

DE, wade cd wacanvenscceensduunesseverses 35a

Ge Se EE da vesassnncancdonesesesteans 37a

D. Section 404.6, Vol. I, Chap. HI, Supp. 4-D, Conn.

Dept. of Social Services Public Assistance Pro-

OND TRIE «onc cn caccvccccsccdevescccsasene 4la

E. §52-440b of the General Statutes of Connecticut .. 43a

F. Departmental letters from HEW ............... 44a

G. Section 404.6, Vol. I, Chap. III, Supp. 4D, Conn.

Dept. of Social Services Public Assistance Program

Manual, presently in effect. ................... 50a

TABLE OF CITATIONS

Cases Crrep Page

Alabama Comm'n. v. Southern R. Co., 341 U.S. 341 (1951) 3

Allen v. Grand Cent. Aircraft Co., 347 U.S. 535 (1954) ... 3

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

De ice ey urbe deee ond Saeed ade 3

Diffenderfer v. Central Baptist Church, 303 U.S. 412 (1971) 15

Doe v. Maher, 414 F.Supp. 1368 (D. Conn. June 1, 1976) 4

Doe v. Norton, 356 F.Supp. 202 (D. Conn. 1973) ....... 4

Doe v. Norton, 365 F.Supp. 65 (D. Conn. 1973) ........ 4

F. H. A. v. The Darlington, Inc., 358 U.S. 84 (1958) ..... 14

Florida Lime Growers v. Jacobsen, 362 U.S. 73 (1960) ... 3

King v. Smith, 392 U.S. 309 (1968) .................... 3

Lewis v. Martin, 397 U.S. 552 (1970) .............. 12, 14

Moody v. Flowers, 387 U.S. 97 (1967) ................. 3

Moor v. County of Alameda, 411 U.S. 693 (1973) ....... 12

Okla. Gas Co. v. Russell, 261 U.S. 290 (1923) ........... 3

Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969) 14

Roe et al v. Norton, Commissioner of Welfare, 415 US.

EY okies eek cus tailed cee eGd ess w 2

Roe et al v. Norton, Commissioner of Welfare, 422 US.

oe eo fe D

United States v. Bergh, 352 U.S. 40 (1956) .............. 14

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972) 11

Wilentz v. Sovereign Camp, 306 U.S. 573 (1939) ........ 3

Statutes Crrep

42 U.S.C. § 1983

28 U.S.C. 1343 (3)

28 U.S.C. § 2201 et seq.

28 U.S.C. §§ 1253 and 2101(b)

42 U.S.C. § 602(a)

42 U.S.C. § 601

Pub. L. No. 93-647 ( 88 Stat. 2337)

Pub. L. No. 94-88

§ 52-440b of the General Statutes of Connecticut

§ 17-82b of the General Statutes of Connecticut

Connecticut Public Act No. 76-334

FEDERAL AND STATE REGULATIONS CrrEeD

§ 404.6, Volume I, Chapter III, Connecticut Department of

Social Services Public Assistance Program Manual

45 C.F.R. § 303.5

Proposed Federal Regulations, 45 C.F.R. §§ 232.12 and 222.13

(41 Fed. Reg. 342961-34301, Aug. 13, 1976).

Exuisits Crrep

Defendant’s Exhibit No. 1

IN THE

Supreme Court of the United States

October Term, 1975

No. A-205

EDWARD W. MAHER, Commissioner of

Social Services of the State of Connecticut

Appellant,

DONNA DOE, ET AL

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF CONNECTICUT

JURISDICTIONAL STATEMENT

Appellant appeals from the judgment of a three-judge

United States District Court for the District of Connecticut,

entered on June 17, 1976, permanently enjoining the Appel-

lant from further enforcing Section 404.6, effective Novem-

ber 1, 1975, of Volume I, Chapter III, of the Connecticut

Department of Social Services Public Assistance Program

Manual, and submits this statement to show that the Supreme

Court of the United States has jurisdiction and that a substan-

tial question is presented.

OPINION BELOW

The opinion of the three-judge District Court which is the

subject of this appeal is reported in 414 F.Supp. 1368. A copy

of that opinion is attached hereto as Appendix A. Earlier opin-

ions in this same case are reported in Doe v. Norton, 356

F.Supp. 202 (D. Conn. 1973) (in which a single-judge District

Court denied an application for a preliminary injunction); and

in 365 F.Supp. 65 (D. Conn. 1973) (original opinion of three-

judge court upholding the constitutionality of § 52-440b of the

General Statutes of Connecticut). Probable jurisdiction noted,

Roe et al v. Norton, Commissioner of Welfare, 415 U.S. 912

(1974), judgment vacated and remanded, 422 U.S. 391 (1975).

JURISDICTION

This suit was brought by the plaintiffs (appellees) under

42 U.S.C. § 1983 and jurisdiction was based on 28 U.S.C.

§ 1343(3). In the hearing on remand from the Supreme Court

of the United States before a three-judge District Court, the

plaintiffs continued to seek to enjoin, in addition to declaratory

relief under 28 U.S.C. § 2201 et seq., the enforcement of a

state statute and to restrain the appellant-state commissioner

of social services from the enforcement, operation, and execu-

tion of a regulation of statewide applicability in the enforce-

ment and execution of such state statute on the grounds of

their unconstitutionality.

In the hearing on merits after the remand from the

Supreme Court of the United States, the three-judge District

Court entered judgment on June 17, 1976 (a copy attached

hereto as Appendix B), and the notice of appeal was filed in

that District Court on July 29, 1976 (a copy attached hereto

as Appendix C).

The jurisdiction of the Supreme Court to review this deci-

sion by direct appeal is conferred by Title 28, United States

Code, §§ 1253 and 2101(b). The following decisions sus-

tain the jurisdictions of the Supreme Court to review the judg-

ment on direct appeal in this case:

King v. Smith, 392 U.S. 309, 312 (1968);

Moody vy. Flowers, 387 U.S. 97, 101-102 (1967);

American Federation of Labor v. ‘Vatson, 327 U.S. 582,

592-593 (1946);

Wilentz v. Sovereign Camp, 306 U.S. 573, 579-580 (1939);

Okla. Gas Co. v. Russell, 261 U.S. 290, 292 (1923);

Alabama Comm'n. v. Southern R. Co., 341 U.S. 341, 343-

344 (1951);

Florida Lime Growers v. Jacobsen, 362 U.S. 73 (1960);

See: Allen v. Grand Cent. Aircraft Co., 347 U.S. 535 (1954).

QUESTIONS PRESENTED

The questions presented by this appeal are:

I. Whether federal regulation, 45 C.F.R. § 303.5, is in-

validated by § 402(a) of the Social Security Act, 42 U.S.C.

§ 602(a) (1976 Supp.), as amended by Pub. L. No. 93-647

(88 Stat. 2337) and/or by Pub. L. No. 94-88 (Aug. 9, 1975).

Il. With respect to any mother who is an applicant or

recipient under the Aid to Families with Dependent Children

program who has an out of wedlock child and which mother is

unable to name the father of such child because such mother in

fact does not know the father’s name, whether the Social Secu-

rity Act as amended requires the Connecticut Commissioner of

Social Services to first make a determination as to whether

such mother has “good cause” for refusing to cooperate, as

defined by the Social Security Act as amended and 45 C.F.R.

§ 303.5 and/or proposed federal regulation, 41 Fed. Reg.

34294-34301 (August 13, 1976) (proposed 45 C.F.R. Part

232), and to first provide a fair hearing before the commis-

sioner may make any referral under § 52-440b of the General

Statutes of Connecticut.

STATUTES INVOLVED

Section 404.6, effective November 1, 1975, Volume I,

Chapter III, Supplement IV-D, Connecticut Department of

Social Services, Public Assistance Program Manual, is the reg-

ulation whose validity is involved in this action and it is set

forth in Appendix D which is attached hereto.

STATEMENT OF THE CASE

The plaintiffs in this action are all unwed mothers of ille-

gitimate children who receive Connecticut welfare benefits

under the Aid to Families with Dependent Children

(A.F.D.C.) program of the Social Security Act of 1935, Sec-

tions 401 et seq., 42 U.S.C. §§ 601 et seq.' The plaintiffs

challenged the constitutionality of § 52-440b of the General

Statutes of Connecticut, a copy of such statute being hereto

attached as Appendix E.? Under the challenged statute, the

mother of any illegitimate child is legally obligated to dis-

close the name of her child’s biological father and to prosecute

a paternity action against the named putative father.’

The constitutionality of the challenged statute was up-

held by the district court, 365 F.Supp. 65, and its decision

was appealed to the United States Supreme Court, which

noted probable jurisdiction, 415 U.S. 912, 94 S.Ct. 1406, 39

L.Ed. 2d 466 (1974). The United States Supreme Court va-

' The plaintiffs, Hattie Hoe, Linda Robuste and Louis Parley,

Esquire, a guardian ad litem for the children of the named plaintiff,

were permitted to intervene in this action. Doe v. Maher, 414 F.Supp.

1368, 1371 n. 3 (D. Conn. 1976). te counsel was also appoin

to resent the interest of the dren. Doe v. Norton, 365 F.Supp.

65, 69 (D. Conn. 1973).

2 Because of the injunctive relief sought in this action, a three-j

district court was ordered. Doe v. Norton, 356 F.Supp. 202, 203 (D.

Conn. 1973). The plaintiffs’ motion for preliminary injunctive relief

was denied. Id. at 204-207.

3 As part of a comprehensive legislative scheme, the State or any

town in the State may institute a separate paternity action and sub-

poena the mother of the illegitimate child as a witness. § 52-440a of

the General Statutes of Connecticut.

cated the district court’s judgment and remanded the case to

the district court

“for further consideration in light of Pub. L. 93-647, and,

if a relevant state criminal proceeding is pending, also

for further consideration in light of Younger v. Harris, 401

U.S. 37, 91 S.Ct. 746, 27 L.Ed. 2d 669 (1971), and Hoff-

man v. Pursue, Ltd., 420 U.S. 529, 95 S.Ct. 1200, 43 L.Ed.

2d 482 (1975).” Roe v. Norton, 422 U.S. 391, 393, 95 S.Ct.

2221, 2222, 45 L.Ed. 2d 268 (1975).

Since the Supreme Court's ruling, § 402(a), 42 U.S.C.A.

§ 602(a) (1976 Supp.), has been amended once again by Pub.

L. No. 94-88 § 208(a) (August 9, 1975)

“so that, with this most recent amendment shown in

brackets, it now reads:

§ 402(a):

“A state plan for aid and services to needy families with

children must

‘(26) provide that, as a condition of eligibility for aid,

each applicant or recipient will be required —

‘(B) to cooperate with the State (i) in establishing the

paternity of a child born out of wedlock with respect to

whom aid is claimed, and (ii) in obtaining support pay-

ments for such applicant and for a child with respect to

whom such aid is claimed, or in obtaining any other

payments or property due such applicant or such child

[unless (in either case) such applicant or recipient is

found to have good cause for refusing to cooperate as

determined by the State agency in accordance wth stan-

dards prescribed by the Secretary, which standards shall

take into consideration the best interest of the child on

whose behalf aid is claimed]; and that, if the relative with

whom a child is living is found to be ineligible because

of failure to comply with the requirements of subpara-

graphs (A) and (B) of this paragraph, any aid for which

such child is eligible will be provided in the form of pro-

tective payments as described in secton 406(b)(2)

(without regard to subparagraphs (A) through (E) of

such section):

‘(27) provide, that the State has in effect a plan approved

under part D and operate a child support program in con-

formity with such plan.’” Doe v. Maher, supra at 1377.

Prior to the decision by the District Court after the re-

mand by the United States Supreme Court, the Defendant-

Appellant continued to exercise the provisions of § 52-440b

through the implementation of § 404.6, effective November 1,

1975, Vol. I, Chap. III, Supplement IV-D, Connecticut Depart-

ment of Social Services, Public Assistance Program Manual,

Appendix D herein, pursuant to federal regulation, 45 C.F.R

§ 303.5.*

On the remand from the United States Supreme Court,

the District Court thereupon heard the case again on its merits

modifying the original class determination, over the Defen-

dant-Appellant’s objections, as follows:

“First, the original class determination is modified to in-

clude three sub-classes. The first sub-class consists of all

persons against whom contempt actions under § 52-440b

* Copies of § 404.6 and 45 C.F.R. § 303.5 were made full exhibits in

the hearing on the merits of this acti i

| ey action which was held before the

SS as SS sere

are currently pending. The second sub-class consists of

all persons against whom action under the statute has

been threatened, or will be threatened in the future, but

against whom no actions are presently pending. The third

sub-class consists of the children of all persons in the first

and second sub-classes.” Doe v. Maher, supra at 1371

n.3J

On August 13, 1976, after the second decision in this case

by the District Court, the Department of Health, Education

and Welfare pursuant to the congressional mandate contained

in Pub. L. No. 93-674, as amended by Pub. L. No. 94-88,

published new proposed standards as to what constitutes

“good cause” on the part of an A.F.D.C. applicant or recipient

for refusing to cooperate with the State in establishing

paternity of a child born out of wedlock for whom aid is

claimed. 41 Fed. Reg. 34294-34301 (Aug. 13, 1976) (proposed

federal regulations, 45 C.F.R. Part 232). As of the present

time, these proposed federal standards or regulations have

not become effective.

On remand, the three-judge District Court found that the

Connecticut statute was constitutionally valid and that absten-

tion was not required. However, the three-judge District Court

further found that Public Laws Nos. 93-647 and 94-88, which

conditioned A.F.D.C. eligibility on a recipient's cooperation

with the State in establishing paternity unless the recipient's

refusal was based on good cause, as determined in accordance

with standards taking into consideration the best interest of

the child, require that the Defendant-Appellant “may not find

an unwed mother who refuses to cooperate in establishing the

5 The original class determination was made as follows:

“The classes consist of:

(1) those mothers receiving A.F.D.C. assistance who refuse to

comply with § 52-440b; and

(2) the illegitimate children of those mothers.

Doe v. Norton, 356 supra at 69.

CoE —

paternity of her child born out of wedlock ineligible for benefits

until he first determines that she does not have good cause

for refusing to cooperate, under standards which take into

account the best interest of the child.” The District Court

further found that the Defendant-Appellant is “. . . required

to comply with such regulations as the Secretary of Health,

Education and Welfare shall issue (including the right to a

fair hearing). . . .” before beginning or continuing with a con-

tempt proceeding under § 52-440b against any plaintiff in the

classes or sub-classes. Based on the foregoing, the District

Court “ordered that the defendant shall not remove the plain-

tiff mothers from the status of eligibility or begin or continue

with any pending contempt proceedings against them under

§ 52-440b until after full compliance with the provisions of

Section 402(a) (26) of the Social Security Act as amended.”

THE QUESTIONS ARE SUBSTANTIAL

Section 402(a) (26) and (27) of the Social Security Act, as

amended by Public Law No. 93-647 and Pub. L. No. 94-88,

requires that as a condition of eligibility for A.F.D.C. assistance

each applicant or recipient is required to cooperate with the

State in establishing the paternity of a child born out of wed-

lock with respect to whom aid is claimed unless such applicant

or recipient is found to have good cause for refusing to co-

operate as determined by the State in accordance with stan-

dards prescribed by the Secretary of Health, Education and

Welfare. The Act as amended further provides that such

standards shall take into consideration the best interest of the

child on whose behalf aid is claimed. At the time of the Judg-

ment of the District Court on June 17, 1976, the aforesaid stan-

dards to be prescribed by the Secretary of Health, Education

and Welfare had not been published. The sew proposed fed-

eral regulations published August 13, 1976 set forth the afore-

said standards, but have not become effective as of this

date. Until such new proposed federal regulations do be-

come effective, the Secretary of Health, Education and

Welfare considers federal regulation, 45 C.F.R. § 303.5,

effective for the purpose of carrying out the good cause and

best interest of the child provisions mandated by Congress in

the Social Security Act as amended. Appendix F.

Insofar as the so-called “IV-D program” is concerned,

federal regulation 45 C.F.R. § 303.5 requires the State to

establish paternity of a child on whose behalf aid is claimed.

Said regulation expressly states that IV-D state agency “need

uot attempt to establish paternity in any case involving incest

ur lorcible rape, or in any case in which legal proceedings for

adoption are pending, if, in the opinion of the IV-D agency,

it would not be in the best interest of the child to establish

paternity.” 45 C.P.R. §303.5(b). State welfare regulation

§ 404.6 (Appendix D), was one of the state welfare regula-

tions being used by the Defendant-Appellant for the purpose

of implementing the federal regulation, 45 C.F.R. § 3035,

and the state statutes, § 52-440b and § 17-82b of the General

Statutes of Connecticut, in compliance with the Social Security

Act as amended.‘

Where an applicant or recpient is unwilling to name the

father of her child, under § 404.6 she is free to claim good

cause for refusing to so name the father of her child as pro-

vided by the Social Security Act as amended, § 17-82b as

amended, and federal regulation, 45 C.F.R. § 303.5(b) (setting

forth the existng standards as to the child’s best interests

policy ). If the applicant or recipient so claims good cause, the

Defendant-Appellant under state welfare regulation § 404.6

and State statute § 17-82b, as amended, is required to make a

6 State welfare regulation, § 404.6, was also being used by the

Defendant-Appellant as an aid in carrying out the provisions of

§ 17-82b of the General Statutes of Connecticut as amended by

Connecticut Public Act No. Le na ‘ —- ~~ — 2, Ry

- ressly makes provision for the “ c . >

Easames “Of he child” eeneept mentioned the Social Security

Act as amended.

determination of whether good cause exists for not naming the

father of the child in question in accordance with the Social

Security Act as amended and in accordance with the standards

set forth in federal regulation, 45 C.F.R. § 303.5(b). If it is de-

termined that good cause does not exist, only then is the appli-

cant or recipient mother notified that she is not eligible for

A.F.D.C. assistance and that she has the right to claim a fair

hearing.” If such applicant or recipient claims a fair hearing,

she remains on assistance pending the outcome of the fair

hearing. If the fair hearing is unfavorable to such applicant or

recipient, then she is referred under § 52-440b.* In a case

where an applicant or a recipient mother is unable to name

the father of the child in question because such mother does

not know the name of the father of her child, such mother is

not denied or removed from A.F.D.C. assistance even though

she is referred under § 52-440b for the purpose of verification

of the lack of her knowledge of such father’s identity. § 404.6,

Insofar as the permanent injunction is concerned, the Dis-

trict Court has refused to recognize federal regulation, 45

C.F-R. § 303.5, as still being in effect for the purpose of carry-

ing out the good cause and the best interests of the child pro-

visions mandated by the Social Security Act, as amended by

Pub. L. No. 93-647 and Pub. L. No. 94-88. As the new pro-

posed federal regulations, setting forth the standards as to what

constitutes good cause and the best interest of the child, have

7In such cases, the children of such apeeent or recipient mother

are not denied or removed from -F.D.C. assistance. § 404.6,

Appendix D.

SIf the recipient or applicant does not claim a fair hearing within

the allotted time in a case where it is determined that such applicant

or recipient does not have good cause for refusing to name the father

of the child in question, she is referred under § 52-440b.

not become effective as of this date, the Defendant-Appellant

does not have any standards with which to carry out the good

cause and the best interest of the child provisions mandated by

the Social Security Act as amended, except those stan-

dards under 45 CFR. § 303.5(b) which are not rec-

ognized by the District Court. To ignore the Dis-

trict Court's injunction by applying the standards set forth

in 45 C.F.R. § 303.5(b) in establishing paternity is to invite a

contempt citation by each member of the plaintiff classes and

sub-classes. To obey the District Court's injunction, such as is

being done, the Defendant-Appellant is unable to carry out

presently that vital part of the policy Congress has incor-

porated into the Social Security Act, which is protecting the

child’s best interests where paternity is required to be estab-

lished in cases involving applicant or recipient A.F.D.C.

mothers who are unwilling or unable to disclose the name of

the father of their respective children.’ The result is that

whatever rights and benefits such illegitimate children are

now entitled to enjoy through the disclosure of their respec-

tive father's name are presently unattainable.’ For some of

these illegitimate children, those rights and benefits with each

passing day may be forever unattainable. “The burdens of

illegitimacy, already weighty, become doubly so when neither

parent nor child can legally lighten them. Weber v. 4tna

Casualty & Surety Co., 406 U.S. 164, 171 (1972): emphasis

added. Given the national scope of the Social Security Act

9 See Appendix G.

'0Some of the rights and benefits which are attainable through

the identity of the father of the illegitimate child in question are

discussed in Doe v. Norton, 356 supra at 206, with supporting

authority. Of no less importance is the right of parentage and the

right of support. The running of the statute of limitations in

ternity cases is a significant factor in the determination of the

illegitimate child’s rights and benefits.

The Defendant-Appellant is unable at this time to make any

assessment of the ——— of any financial loss to legitimate

children or of any financial loss to the Defendant-Appellant directly

due to the permanent injunction entered by the District Court

below.

as amended, the judgment of the District Court not only con-

flicts with the child’s best interests policy insofar as the State

of Connecticut’s A.F.D.C. welfare program is concerned, but

its influence as of necessity transcends state boundary lines

and causes an impact on other state welfare programs governed

under the Social Security Act.

1. With respect to the protection of the child’s best

interests policy as expressed in Pub. L. No. 94-88, § 208(a), it

can hardly be doubted that Congress intended that some set

of standards should presently govern to enforce the child’s

best interests policy at the present time until the aforesaid

new proposed standards become effective." In determining

the proper construction of a statute, it is a cardinal rule that

the views of the agency administering the statute have great

weight. Lewis v. Martin, 397 U.S. 552, 559 (1970). It has also

been stated that the circumstances and conditions confronting

Congress at the time of enacting a statute are to be considered

in construing that statute. Moor v. County of Alameda, 411

U.S. 693, 709 (1973). The copies of the departmental letters

submitted in Appendix F herein demonstrate that the Depart-

ment of Health, Education and Welfare considers the standards

pertaining to the child’s best interests policy in 45 C.F.R.

§ 303.5(b) to be in force until the new proposed standards

become effective. This view on the part of the Department of

Health, Education and Welfare is not out of step with

Congress’ intent in the passage of Pub. L. No. 93-647 and

Pub. L. No. 94-88. The conditions and circumstances pre-

vailing at the time that such Public Laws were enacted bear

this point out.

"It has taken the Secretary of the Department of Health, Edu-

cation and Welfare over a year to publish the new proposed

standards concerning the child’s best interests policy. These new

proposed standards may not necessarily become effective until]

another substantial period of time has expired.

a ee

Federal regulation, 45 C.F.R. § 303.5, became effective

July 1, 1975, coinciding with the effective date of Pub. L.

No. 93-647. 40 Fed. Reg. 27154, 27169 (June 26, 1975). Such

federal regulation serves to implement the pertinent provisions

of Part B of Pub. L. No. 93-647. 40 Fed. Reg. 19207 (May 2,

1975). Of significance is the fact that 45 C.F.R. § 303.5 be-

came effective one month before the effective date of Pub. L.

No. 94-88. Of further significance is the fact that the child’s

best interests policy is mentioned in 45 C.F.R. § 303.5(b),

indicating that before the effective date of the regulation

the Department of Health, Education and Welfare was already

aware of the child’s best interests policy being then considered

by Congress in what was to become Pub. L. No. 94-88. The

awareness of the child’s best interests policy by the Depart-

ment of Health, Education and Welfare before passage of

Pub. L. No. 94-88 clearly shows that the Department of Health,

Education and Welfare was acting in accordance with Con-

gress’ desire that standards were to become effective immedi-

ately for carrying out the child’s best interests policy which

Congress was considering before and at the time of enacting

Pub. L. No. 94-88. Such awareness on the part of the Depart-

ment of Health, Education and Welfare further shows that

Congress intended that the standards pertaining to the child’s

best interests policy in 45 C.F.R. § 303.5(b) were to be in

effect until the new proposed standards become effective.

When this aspect is weighed against the absence of any langu-

age in Pub. L. No. 94-88 prohibiting the standards in 45 C.F.R.

§ 303.5(b) and weighed against the lack of any legislative his-

tory indicating a contrary position to 45 C.F.R. § 303.5(b), it

cannot be supposed that Congress, in 1975, intended that 45

C.F.R. § 303.5(b) was to be invalidated on the passage of

Pub. L. No. 94-88.

What cannot be overlooked is the further fact that 45

C.F.R. § 303.5(b) incorporates most of the standards found

in the new proposed federal regulations, namely those in 45

C.F.R. § 232.13(d) (41 Fed. Reg. 34300), which circumscribe

the circumstances under which establishing paternity would

be considered “against the best interests of the child”. Al-

though 45 C.F.R. § 303.5(b) contains far less detail, procedure,

and instruction than that provided under the new proposed

federal regulations, the State under 45 C.F.R. § 303.5(b) is

able to carry out the child’s best interests policy in every

respect as defined in the new proposed federal regulations.

When this point is considered in light of the fact that nothing

in the legislative history of Pub. L. No. 93-647 and Pub. L. No.

94-88 shows that 45 C.F.R. § 303.5(b) would impede carrying

out the child’s best interests policy as envisioned by Congress

in 1975, the view held by the Department of Health, Edu-

cation and Welfare that 45 C.F.R. § 303.5(b) is in force for

carrying out the child’s best interests policy until the new

proposed federal regulations become effective should be

given deference. See, e.g., Red Lion Broadcasting Co. v.

F.C.C., 395 U.S. 367, 381 (1969); Lewis v. Martin, supra at

559.

By enacting Pub. L. No. 94-88, Congress declared the

intent of an earlier statute, Pub. L. No. 93-647, insofar as the

child’s best interests policy is concerned. Such subsequent

legislation is entitled to great weight in statutory construction.

F.H.A. v. The Darlington, Inc., 358 U.S. 84, 90 (1958). Great

weight is also given in statutory construction where Congress

refuses to alter an administrative construction given to a law

by the agency charged to administer the law. United States v.

Bergh, 352 U.S. 40, 46-47 (1956). In Pub. L. No. 94-88,

Congress expressly caller. for new standards to be submitted

in the future by the Secretary of the Department of Health,

Education and Welfare. Pub. L. No. 94-88; 121 Cong. Rec.

$14923 (daily ed. Aug. 1, 1975). Congress’ silence in Pub. L.

No. 94-88 as to the present standards, 45 C.F.R. § 303.5(b),

was no accident and not without purpose. Such silence was

not only a refusal to overtum 45 C.F.R. § 303.5(b), but a

ratification of 45 C.F.R. § 303.5(b) until the new standards

to be submitted by the Secretary of the Department of Health,

Education and Welfare could become effective. The Social

Security Act as amended thus contemplates that any State

may exercise its welfare regulations, such as Connecticut

through the exercise of state welfare regulation § 404.6, to

effectuate the child’s best interests policy in accordance with

the standards in 45 C.F.R. § 303.5(b) until any new proposed

federal regulations supplanting those standards actually be-

come effective.

It may be that the Defendant-Appellant will be able to

comply with the new proposed federal regulations once they

become effective insofar as the District Court's judgment is

concerned. However, this is of no moment when the Defen-

dant-Appellant’s present rights are at stake. The District

Court's judgment should be reviewed with respect to the

Defendant-Appellant’s rights as they now stand and under

the law as it now stands. See Diffenderfer v. Central Baptist

Church, 404 U.S. 412, 414 ( per curiam 1971).

2. The District Court ordered that the Defendant-

Appellant shall not remove any plaintiff from the “status of

eligibility or begin or continue with any pending contempt

proceedings against” any plaintiff under § 52-440b until the

Defendant-Appellant first determines that such plaintiff

“. . . does not have good cause for refusing to cooperate, under

the standards which take into account the best interests of

the child. . . . [in] full compliance with the provisions of Sec-

tion 402(a) (26) of the Social Security Act as amended.” Doe

v. Maher, supra at 1381-1382; material in parenthesis supplied;

emphasis added. The standards which the District Court had

in mind were the forthcoming standards, concerning the

child's best interests policy, which are now found in the new

proposed federal regulations, 41 Fed. Reg. 34298-34301 ( Aug.

13, 1976). The District Court substantively construed Pub.

L. No. 94-88 as invalidating federal regulation, 45 C.F.R.

§ 303.5(b), which contains the standards that the Depart-

ment of Health, Education and Welfare consider in present

force for carrying out the child’s best interests policy.

In footnote 20 of the District Court's opinion, two things

are evident which support the claim that the District Court has

enjoined the Defendant-Appellant from taking any further

enforcement action under 45 C.F.R. § 303.5(b). First, the

District Court concluded that § 208(a) of Pub. L. No. 94-88

in its entirety became effective on August 1, 1976. Second,

the District Court concluded that where an applicant or a

recipient mother refuses to disclose the name of the father

of her child, the Defendant-Appellant is unable to make a

determination of whether good cause exists for refusing to

cooperate, under standards which take into account the best

interests of the child, “. . . until the new regulations have been

issued and approved.” 414 F.Supp. 1381 n.20.

In reference to the good cause and the child’s best

interests policy requirements provided by Pub. L. No. 93-647

and Pub. L. No. 94-88, the opinion of the District Court be-

low, following footnote 20 in the text of the opinion, states

the following:

“The defendants are required to comply with such

regulations as the Secretary of HEW shall issue (in-

cluding the right to a fair hearing) before continuing

with the contempt proceedings against these plaintiffs.

This is so even though the proceedings were commenced

before the new law was enacted. Thrope v. Housing

Authority, 393 U.S. 268, 282, 89 S.Ct. 518, 21 L.Ed.2d

474 (1969). Until the defendant Commissioner has made

the required determinations, continuation by him of the

contempt proceedings against the plaintiffs, or removing

them from the welfare rolls for their failure to ‘cooperate’

is at the very least inappropriate. Cf. Diffenderfer v.

Central Baptist Church, 404 U.S. 412, 92 S.Ct. 574, 30

L.Ed.2d 567 (1972).” 414 F. Supp. 1381-1382.

This passage quoted from the opinion of the District Court

below makes clear that before the Defendant-Appellant takes

any further enforcement action against any plaintiff under

state regulation, § 404.6, and State Statute, § 52-440b, the

Defendant-Appellant must first make the required good cause

determination under standards which take into account the

best interests of the child solely in compliance with such

new regulations as the Secretary of the Department of Health,

Education and Welfare shall issue pursuant to Pub. L. No.

94-88. This same quoted passage also provides clear warning

to the Defendant-Appellant by the District Court of contempt

if the Defendant-Appellant attempts to take any further en-

forcement action under State Regulation § 404.6, and State

Statute, § 52-440b, which is not solely in compliance with the

good cause requirement and the child’s best interests stan-

dards in the new regulations as the Secretary of the Depart-

ment of Health, Education and Welfare shall issue pursuant

to Pub. L. No. 94-88.

It should be kept in mind that the District Court through-

out its opinion refers to the child’s best interests “standards”

as the new standards to be submitted by the Secretary of the

Department of Health, Education and Welfare pursuant to

Pub. L. No. 94-88. The District Court's repeated references

to the ehild’s best interests standards as those to be submitted

at some time in the future by the Secretary of the Department

of Health, Education and Welfare as opposed to the District

Court's silence as to 45 C.F.R. § 303.5(b), even though it

had a copy of federal regulation 45 C.F.R. § 303.5(b) before

it as part of Defendant-Appellant’s Exhibit No. 1, lends it-

self to supporting the claim that the District Court has

construed Pub. L. No. 94-88 so as to invalidate federal regu-

lation 45 C.F.R. § 303.5(b). Consequently, enforcement action

under state welfare regulation § 404.6 is enjoined until the

new proposed federal regulations become effective.

3. There is a class of applicants and recipient A.F.D.C.

mothers who have out of wedlock children, but who do not

know the name of the father of their respective children.

Insofar as eligibility of A.F.D.C. assistance is concerned, these

applicant and recipient A.F.D.C. mothers are willing to co-

operate with the State, but are unable to provide the name

of the father of their respective children because of lacking

the necessary knowledge. Even though these applicant and

recipient A.F.D.C. mothers are willing to cooperate under

their circumstances, the good cause requirement and the

child’s best interests standards as defined in federal regulation,

45 C.F.R. § 303.5(b) or as defined in the new proposed

federal regulations, 45 C.F.R. §§ 232.12 and 232.13 (41 Fed.

Reg. 34294-34301, August 13, 1976), are not applicable to

their situations. Under State Welfare regulation § 404.6 (Ap-

pendix D), these applicant and recipient A.F.D.C. mothers

are referred under §52-440b for verifying their lack of

knowledge. As A.F.D.C. assistance is not denied to such

mothers in the referral process, and as there is no claim of

good cause or of any ‘action against the best interests of the

child’ as these terms are defined under the 45 C.F.R. § 303.5(b)

or under the new proposed federal regulations, there is no

requirement under the aforesaid federal regulations nor any

need to apply the good cause requirement."

Even though the good cause requirement and the child’s

best interests standards as defined under 45 C.F.R. § 303.5(b)

and under the new proposed federal regulations, 45 C.F.R.

§§ 232.12 and 232.13, are not applicable where applicant or

'2 Should a particular applicant or recipient A.F.D.C. mother change

her position as to not knowing the name of the father of her child.

she is not barred from claiming good cause under the Social

Security Act at any time.

recipient A.F.D.C. mothers do not know the name of the

father of their respective children, the District Court has

nevertheless defined the classes and sub-classes in the instant

action so as to include such A.F.D.C. mothers. Consequently,

any present referral of any of these A.F.D.C. mothers under

§52-440b by way of the state welfare regulation § 404.6,

despite fully comporting with the good cause requirement

and the child’s best interests policy as defined in either 45

C.F.R. § 303.5(b) or in the new proposed federal regulations,

would nevertheless fall within the classes and sub-classes as

defined by the District Court and constitutes a violation of

the District Court's injunction. In addition, the Defendant-

Appellant will continue to be enjoined from exercising state

welfare regulation § 404.6 as to such applicant and recipient

A.F.D.C. mothers even though the Defendant-Appellant will

be acting under the new proposed federal regulations, 45

C.F.R. §§ 232.12 and 232.13, once they become effective.

In an attempt to resolve the second issue, the Defendant-

Appellant has submitted a motion pursuant to rule 60b of

the Federal Rules of Civil Procedure and the motion is now

pending before the three-judge District Court below (the

motion has not been scheduled for hearing as of this date).

The determination of the 60b motion by the District Court

will have further impact on the status of the second issue

before this Court.

It is submitted that judgment of the District Court is in

direct conflict with the Social Security Act as amended in

that the District Court has construed Pub. L. No. 93-647 and

Pub. L. No. 94-88 so as to invalidate 45 C.F.R. § 303.5(b).

As the District Court has failed to recognize 45 C.F.R.

§ 303.5(b) as the effective federal regulation presently in

force, and as the Defendant-Appellant under said regulation

and under the Social Security Act as amended is required to

effectuate the good cause requirement and the child’s best

interests policy now as well as after the new proposed federal

regulations become effective, the judgment of the District

Court presently enjoining the enforcement of state welfare

regulation § 404.6 for carrying out the good cause requirement

and the child’s best interests policy is also in direct conflict

with the Social Security Act as amended. We believe that the

questions presented by this appeal are substantial and that

they are of public importance.

Respectfully submitted.

By: MicuaEL ANTHONY ARCARI

Counsel for the

Defendant-Appellant

90 Brainard Road

Hartford, Connecticut 06114

Tel. 566-7040

SCHEDULE OF APPENDICES.

_ Appendix A. The opinion of the three-judge District Court

helow which is the subject of this Appeal.

\ppendix B. Judgment of the three-judge District Court

below.

Appendix C. Notice of Appeal.

Appendix D. Section 404.6, effective November 1, 1975,

Volume I, Chapter III, Supplement IV-D, Connecticut

Department of Social Services, Public Assistance Program

Manual.

Appendix E. Section 52-440b of the General Statutes of

Connecticut.

Appendix F. Departmental Letters.

Appendix G. Section 404.6, Volume I, Chapter ItI, Supple-

ment IV-D, Connecticut Department of Social Services,

Public Assistance Manual (presently in effect).

APPENDIX A

The opinion of the three-judge District Court below

which is the subject of this Appeal.

Donna DOE et al., Individually and on

behalf of all others similarly situated

Vv.

Edward MAHER, Individually and as

Commissioner of Social Services of

the State of Connecticut.

Sharon ROE et al., Individually and on

behalf of all others similarly situated

Vv.

Edward MAHER, Individually and as

Commissioner of Social Services of

the State of Connecticut.

Civ. Nos. 15579, 15589.

United States District Court

D. Connecticut.

June 1, 1976.

Unwed mothers of illegitimate children brought suit

challenging constitutionality of Connecticut welfare statute,

under which an unwed mother may be compelled to disclose

the name of the child’s putative father and to institute a

paternity action. The District Court, 365 F.Supp. 65, dis-

missed, and appeal was taken. The Supreme Court, 95 S.Ct.

2221, 2222 vacated and remanded. On remand, the Three-

Judge District Court, Blumenfeld, District Judge, held that

abstention was not required since not only were the pending

contempt proceedings civil in nature but traditional notions

of federal-state relations compelled federal intervention to en-

force congressional intent underlying 1975 amendments to

Social Security Act, that such amendments, which conditioned

eligibility on a recipient's cooperating with the state in estab-

lishing paternity unless recipient’s refusal was based on good

cause, as determined in accordance with standards taking into

consideration the best interests of the child, did not preempt

the state law but that the “best-nterest” standard was to be

applied before state contempt proceedings were instituted

and before further action was taken in instant proceedings,

notwithstanding that instant proceedings were instituted prior

to the amendment.

Order accordingly.

Newman, District Judge, concurred in result and filed

opnion.

1. Federal Civil Procedure 314

Intervention was allowed so as to assure a named plain-

tiff in one subclass with a live and continuing controversy. Fed.

Rules Civ. Proc. rule 23(c)(1, 4), 28 U.S.C.A.

2. Constitutional Law 46(1) Courts 508(2)

Although distinction between ordering Connecticut to

conform its welfare program to federal statutory requirements

and merely ordering that federal funds be cut off unless it

chose to comply with such requirements could be used to

support ripeness analysis as regards unwed mother against

whom no contempt proceedings had been commenced, it did

not obviate necessity of ruling on constitutional claims of re-

maining plaintiff mothers, who were already subject of pend-

ing contempt proceedings, or of confronting the Younger

abstention problems. C.G.S.A. § 52-440b; Social Security Act,

§§ 401 ct seq., 402(a), 451 et seq., 454 as amended 42 U.S.C.A.

§§ 601 et seq., 602(a), 651 et seq., 654.

3. Courts 508(2)

Although intervenor, who had been threatened with pro-

secution for failure to comply with Connecticut welfare stat-

ute requiring her to disclose name of putative father and

commence paternity action, could be entitled to declaratory

and injunctive relief on a personal basis, she could not, under

guise of representing a class, dispense with the Younger absten-

tion considerations for those class members who were pres-

ently being prosecuted and who challenged constitutional and

statutory validity of the Connecticut procedure. C.G.S.A.

§ 52-440b.

4. Courts 508(2)

The Younger doctrine did not prohibit either granting of

declaratory or injunctive relief as regards Connecticut welfare

procedure whereby an unwed mother may be compelled to dis-

close name of child’s putative father and to institute paternity

action since pending state proceedings were in nature of civil,

rather than criminal, contempt and challenges were not exclu-

sively substantive, constitutional ones but involved initial

determination of whether the state statute had been pre-

empted by recent amendment to federal Social Security Act;

also, there was no state forum in which plaintiffs could pre-

sent their constitutional claims. C.G.S.A. § 52-440b; Social

Security Act, §§401 et seq., 402(a), 451 et seq., 454 as

amended 42 U.S.C.A. §§ 601 et seq., 602(a), 651 et seq., 654.

5. Courts 508(7)

Considerations underlying the Younger abstention doc-

trine, which counsels against federal court interference in

pending state criminal proceeding, are the traditional reluc-

tance of federal courts to interfere with pending state crim-

inal proceedings and the comity considerations inherent in

the federal system.

6. Contempt 4

Contempt sentences imposed for violating Connecticut

statute whereby an unwed mother may be compelled to dis-

close name of child’s putative father and to institute a pater-

nity action are primarily civil, since their purpose is to coerce

testimony, rather than to vindicate the dignity of the court;

to constitute criminal contempt the statute would have to be

interpreted to require proof of an intent to obstruct justice

and an eminent threat to the administration of justice; nature

of the proceedings did not convert it into criminal contempt

simply because the state would sue in place of the parent.

C.G.S.A. § 52-440b.

7. Contempt 3

Fact that incarceration might be sanctioned for non-

compliance with Connecticut statute whereby an unwed

mother might be compelled to disclose the name of the child’s

putative father and institute a paternity action did not auto-

matically render the contempt proceedings criminal in nature.

C.G.S.A. § 52-440b.

8. Courts 490

Comity considerations which underlie the Younger

policy of abstention on part of federal courts when it comes

to interfering with ongoing state proceedings apply no less to

an action because it is civil in nature rather than criminal.

9. States 4.14

Authority to invalidate a state law on preemption grounds

is derived from the supremacy clause. U.S.C.A.Const. art. 6,

cl, 2.

10. Courts 508(1)

Although the abstention doctrine recognizes the role of

state courts as the final expositors of state law it implies no dis-

regard for the primacy of the federal judiciary in deciding

questions of federal law. U.S.C.A.Const. art. 6, cl. 2.

11. Courts 508(1)

Although lower federal courts are hesitant to interfere

in ongoing state proceeding under any circumstances, the

abstention doctrine is particularly inapplicable in the field of

preemption since a finding that federal law has preempted

application of state law would be a finding concerning the

validity of the proceeding itself and not just the constitu-

tionality of the particular statute or its particular application

and would be a finding that the intrusion has already occurred;

in such case, interference in state affairs would be an intru-

sion accomplished at the direction of Congress and one which

is clearly within Congress’ power to direct. U.S.C.A.Const. art.

6, cl. 2.

12. Courts 508(1)

An essential prerequisite for abstention is an available

state forum in whch plaintiff can present his federal claims.

13. States 4.14

Determination of whether Connecticut welfare scheme,

whereby an unwed mother may be compelled to disclose the

name of the child’s putative father and to institute a paternity

action, was preempted by the Social Security Act was to be

determined by reference to federal law as it read at date of

decision rather than at time suit was instituted. C.G.S.A. § 52-

440b; Social Security Act, §§ 401 et seq., 402(a), 451 et seq.,

454 as amended 42 U.S.C.A. §§ 601 et seq., 602(a), 651 et

seq., 654.

14. States 4.10

Existence of broad area of mutuality of purpose of state

’ and federal authority is insufficient to completely preclude

state action under the preemption doctrine. U.S.C.A.Const. art.

6, cl. 2.

15. States 4.14

Congressional purpose to displace local laws must be

clearly manifested; where the federal statute has not expressly

proscribed certain action but has merely been silent, there is

no basis for an inference that Congress intended to forbid

state supplementary action. U.S.C.A.Const. art. 6, cl. 2.

16. States 4.10

; Under the preemption doctrine, the mere identity of state

‘and congressional purpose does not furnish a sufficient basis

for a finding of congressional intent that the state should re-

frain from taking steps beyond those which Congress requires

of it to achieve their mutual purpose. U.S.C.A. Const. art. 6,

cl. 2.

17. States 4.11

In determining whether a substantial conflict exists be-

tween state and federal statutes, a court must construe both

as narrowly as the language and legislative history permit;

only after first attempting to reconcile the statute may the

court find a conflict and, thus, avoid ruling on the substantive

constitutional claim. U.S.C.A.Const. art. 6, cl. 2.

18. States 4.14

Connecticut welfare statute, under which an unwed mother

may be compelled to disclose name of child’s putative father

and to institute paternity action, is not pre-empted by 1975

amendments to Social Security Act requiring eligiblity of an

unwed mother to be determined solely under standards to be

established by Department of Health, Education and Welfare,

provided the state does not institute contempt proceedings

until the mother is found to be without good cause for refusing

to cooperate, which determination is to be made under stan-

dards that take into consideration the best interests of the child.

U.S.C.A.Const. art. 6, cl. 2; C.G.S.A. § 52-440b; Social Secu-

rity Act, §§ 401 et seq., 402(a), 451 et seq., 454 as amended

42 U.S.C.A. §§ 601 et seq., 602(a), 651 et seq., 654.

19. Social Security and Public Welfare 194

Although 1975 amendment to Social Security Act condi-

tioning eligibility for aid to needy families with children on

the applicant’s cooperating with the state in establishing pater-

nity of a child born out of wedlock unless refusal to cooperate

is based on good cause, as determined under standards taking

into consideration the best interests of the child, requires that

proposed regulations implementing the “best interests of the

child” policy be presented to Congress for specific approval,

congressional approval of such regulations is not a precondi-

tion to operation of the amendment. Social Security Act,

§ 402(a) as amended 42 U.S.C.A. § 602(a).

20. Contempt 61(6)

In view of fact that proceedings seeking to hold unwed

mothers in contempt for failure to comply with Connecticut

welfare statute, under which an unwed mother may be com-

pelled to disclose name of child’s putative father and to insti-

tute a paternity action, were commenced before 1975 amend-

ments to Social Security Act cooditioning such proceedings on

a finding of want of good cause for refusal to cooperate, with

finding to be made under standards taking into account the

best interests of the child, the state was required to comply

with the amended act before continuing with the contempt

proceedings. C.G.S.A. § 52-440b; Social Security Act, §§ 401

et seq., 402(a), 451 et seq., 454 as amended 42 U.S.C.A.

§§ 601 et seq., 602(a), 651 et seq., 654.

David N. Rosen, Rosen & Dolan, Edward J. Dolan, New

Haven, Conn., Frank Cochran, Conn. Civil Liberties Union

Foundation, Inc., Hartford, Conn., Stephen Wizner, New

Haven, for plaintiffs.

Michael Anthony Arcari, Asst. Atty. Gen., Hartford,

Conn., for defendant.

Before TIMBERS, Circuit Judge, and BLUMENFELD

and NEWMAN, District Judges.

MEMORANDUM OF DECISION

BLUMENFELD, District Judge:

An earlier decision in this action' was appealed to the

Supreme Court, which noted probable jurisdiction, 415 U.S.

912, 94 S.Ct. 1406, 39 L.Ed.2d 466 (1974). Thereafter the

Court vacated the judgment and remanded the case to this

court

“for further consideration in light of Pub.L. 93-647, and,

if a relevant state criminal proceeding is pending, also

for further consideration in light of Younger v. Harris, 401

U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Huff-

man v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.

2d 482 (1975).”

Roe v. Norton, 422 U.S. 391, 393, 95 S.Ct. 2221, 2222. 45 L.Ed.

2d 268 (1975).

of Social Services, Edward Maher, has been substituted as a de-

fendant pursuant to Rule 25(d)(1), Fed.R.Civ.P.

{1,2] In our original opinion, we upheld the constitu-

tionality of Conn. Gen. Stat. Ann. §52-440b (1976 Supp. )?

against claims that it denied due process and equal protection,

invaded the plaintiffs’ rights to privacy and conflicted with the

purposes of the Social Security Act. Upon remand, this court

has received briefs and heard arguments on all the issues to

aid it in its further consideration of the case.’

2 Conn.Gen.Stat.Ann. § 52-440b (1976 Supp.) reads:

“(a) If the mother of any chlid born out of wedlock, or the

mother of child born to any married woman during mar-

riage which child shall be found not to be issue of the marriage

terminated by a decree of divorce or dissolution or by decree

of any court of competent jurisdiction, fails or refuses to dis-

close the name of the putative father of such child under oath

to the welfare co ioner, if such child is a recipient of

public assistance, or to a selectman of a town in which such

child resides, if such child is a recipient of general assistance,

or otherwise to a guardian or a guardian ad litem of such

child, such mother may be cited to before any judge

of the court of common pleas [ a geographical area)

and co Ff ~fpye Es WN, Bo

St Saag © SEES os Gres & ee the paternity

“(b) Any woman who, having been cited to a before a

judge of the court of common pleas pursuant to subsection

(a), fails to appear or fails to disclose or fails to prosecute a

paternity action may be found to be in contempt of said court

and may be fined not more than two h dollars or

imprisoned not more than one year or both.”

The bracketed material was added when the statute was

amended in 1975. P.A. No. 75-406, § 6. The italicized material

was substituted for “divorce decree” and “circuit court” re-

vely in 1974. P.A. No. 74-183, § 110. The merger of the

c t courts into the courts of common pleas is discussed at

note 12 infra.

3 We have also taken two further procedural First, the or-

i class determination is modified to include sub-classes.

presently pending.

sists of the children of all persons in the first and second sub-classes.

Rule 23(c)(1), (4), Fed. R.Civ.P.

10a

We have been instructed to reconsider two different as-

pects of federalism, abstention and pre-emption. We turn first

to the issue of abstention.‘

I. Abstention in Light of Younger v. Harris

[3,4] The fact that the adult plaintiffs in this action,

with the exception of the intervenor, Linda Robustelli, are

defendants in pending contempt proceedings instituted by the

Commissioner under the authority of § 52-440b (1976 Supp.),

raises a serious issue of abstention in light of Younger v. Harris,

401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971),5 and its

and the abit war, Snding ss plaintiffs, techoting de> fae action

to represent respective sub-classes. Rule 23(b)(2), Fed. R.Civ.P’

Hin nfm 4 Wyntan Sor°US toh Sse gied Py Juris

v. Wyman, S. ‘ . . .

ey 442 (1970), between ordering New York to conform its

ving thot te tener re, statu ts and merely

exdering its federal funds be ctw it chooses to comp

hal those from this court, y-— 5-— con-

stitutionally protected privacy interests are being .

mm 0 the Commissioner to give

affirmative tute

1 . Thus, are in a different tion than were the

“laintiffs (e t ‘at Poole) in United Public Workers v.

Mitchell 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). unlike

the plaintiffs in Laird v. Tatum, 408 U.S. 1, 92 S.Ct 2318, 33 2d

lla

progeny. The intervention of Ms. Robustelli, who has been

threatened with prosecution, but against whom no action is

presently pending, cannot circumvent the issue, for while she

may be entitled to declaratory and injunctive relief on a

personal basis, Doran vy. Salem Inn, Inc., 422 U.S. 922, 95

S.Ct. 2561, 45 L.Ed.2d 648 (1975), she cannot, under the

guise of representing a class, dispense with the Younger con-

siderations for those raembers of the class who are presently

being prosecuted. “The requirements of Younger are not to be

evaded by artificial niceties.” Allee vy. Medrano, 416 U.S. 802,

833, 94 S.Ct. 2191, 2209, 40 L.Ed.2d 566 (1974) ( Burger, C. J.,

concurring in the result in part and dissenting in part). Cf.

Allee v. Medrano, 416 US. at 816 n. 10, 94 §.Ct. 2191. How-

ever, in the opinion of this court Younger does not prohibit

the issuance of an injunction or declaratory relief in this action.

This conclusion is founded upon a determination that neither

of the considerations which support the Younger doctrine

apply in the circumstances of this case, and, in addition, a

finding that the plainttiffs lack a state forum in which they

can adequately present their constitutional arguments. The

latter is an essential prerequisite to abstention under the

Younger doctrine.

A. The Pending State Proceedings are not Criminal.

[5-7] The first consideration which underlies the

Younger abstention doctrine is the traditional reluctance of

federal courts to interfere with pending state criminal prose-

cutions. Younger, 401 U.S. at 43, 91 S.Ct. 746; Douglas v. City

of Jeannette, 319 U.S.. 157, 63 S.Ct. 877, 87 L.Ed., 1324 (1943);

Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927

the proceedings involving the named plaintiffs pending the out-

come of this suit. No injunctions have been issued by this court

White v. S. J.. No. DN CV6-58218 (Ct. of Com.Pl, 6.A6, New

Haven Co.) ; White v. V.P., No. DN CV6-58219 (Ct of Com.P1., 6.A.6,

New Haven Co.); Maher vy. H.-P. (no Docket No.) (Ct. of Com.P1.,

12a

(1926). This consideration does not apply to the present case,

however, because the pending state proceedings are in the

nature of civil rather than criminal contempt.‘

Under § 52-440b, it is the Commissioner of Social Ser-

vices, not a district attorney, who has a woman who refuses

to cooperate with the Department of Social Services cited to

appear before a judge of the court of common pleas. This fac-

tor alone has been held to distinguish civil from criminal con-

tempt in this circut. In re Kahn, 204 F. 581 (2d Cir. 1913).

And see In re Guzzardi, 74 F.2d 671 (2d Cir. 1935).

The more general tests established by the Supreme Court

to distinguish between civil and criminal contempt, Shillitani

v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622

(1966); Gompers v. Bucks Stove & Range Co., 221 U.S. 418,

31 S.Ct. 492, 55 L.Ed. 797 (1911); serve to strengthen the

conclusion that contempt sentences administered under § 52-

440b are primarily civil, for their purpose would be to coerce

testimony, rather than to vindicate the dignity of the court.

Compare Shillitani, with United States v. Seale, 461 F.2d 345

(7th Cir. 1972). In order to constitute criminal contempt,

the statute would have to be interpreted to require proof of

an intent to obstruct justice and an imminent threat to the

administration of justice. In re Williams, 309 F.2d 949 (2d Cir.

1975).

Connecticut law recognizes and applies this distinction.

As the Connecticut Supreme Court has recently stated:

“In any event, in 1965 (prior to the commencement of

the present proceedings), . . . the basic statute pursuant

to which the previous proceedings were instituted was

enacted as §52-435a in chapter 911 entitled “Paternity

6 Title 52 of the Conn.Gen.Stat.Ann. is eutitled “Civil Actions.”

While this alone is not determinative, it is illustrative of the intent

of the Connecticut legislature.

13a

Proceedings.” No longer is there any reference in that

section to quasi-criminal procedures such as arrest, pleas

of guilty or not guilty, hearing on probable cause or bind-

ing over for trial. A plaintiffs paternity action has been

stripped of any quasi-criminal characteristics and clearly

converted to an unmistakable civil action.”

Robertson v. Apuzzo, Conn. —__— A.2d at . , 37

Conn.L.J. No. 38 (1976).

These contempt proceedings are therefore not “more

akin to [a] criminal prosecution[s]” than to civil actions and

they are not “in aid of and closely related to criminal statutes.”

Cf Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200,

1208, 43 L.Ed.2d 482 (1975). And the nature of the pro

ceeding is not converted to criminal simply because, under the

statute in question, the State is suing in place of the parent.

The stated purpose of § 52-440b is to allow the State to insti-

tute and successfully prosecute a paternity action and to

recover support for the child. Rather than a criminal prosecu-

tion, the action is instead more in the nature of a civil debt

collection.’ The Welfare Commissioner is acting primarily as

the guardian of the child, securing its rights, rather than as a

criminal prosecutor or law enforcement officer “charged with

7 In discussing contempt proceedings for the closely related purpose

of enf orders, once paternity has been estab

« support -- dy ty lished. the

judgment and for ‘contemat Pp = a failure to com-

orders of the

which

or eens ee oe

Robertson v. Apuzz A.2d , 37

Conn.L.J. No. 38 Btige) Si Similarly, the tact that lssasasealiex may

be the sanction for non ene yy ae

aimindl fe as Middendorf v.

— mee CS. — a S.Ct. 1281, "47 Yt ea da 556 (1976). - —

l4a

the duty of prosecuting offenders against the laws of the state

.. . [who] must decide when and how this is to be done.”

Fenner v. Boykin, 271 U.S. at 243-244, 46 S.Ct. at 493, quoted

in Younger, 401 U.S. at 45, 91 S.Ct. 746. But cf. Lynch v.

Household Finance Corp., 405 U.S. 538, 556-61, 92 S.Ct. 1113,

31 L.Ed.2d 424 (1972) (White, J., dissenting).

If these contempt proceedings can be said to be “in aid

of and closely related to” any particular statute, it is the federal

Social Security Act, and not any particular criminal law of the

State of Connecticut. In these circumstances, the element of

Younger which rests upon the traditional reluctance of courts

of equity to interfere with a criminal prosecution simply does

not “mandate restraint.” Cf. Huffman, 420 U.S. at 604, 95 S.Ct.

1200.

B. Federalism

[8] The comity considerations inherent in our federal

system provide the second rationale for the Younger policy of

abstention. See Younger, 401 U.S. at 44, 91 S.Ct. 746. As Huff-

man made clear, these considerations apply no less to an action

because it is civil in nature rather than criminal. There, the

Court stated that:

“Central to Younger was the recognition that ours is a

system in which ‘the National Government, anxious

though it may be to vindicate and protect federal rights

and federal interests, always endeavors to do so in ways

that will not unduly interfere with the legitimate activi-

ties of the States.’ [Younger, 401 U.S. at 44, 91 S.Ct.

746].”

Huffman, 420 U.S. at 601, 95 S.Ct. at 1207. See Rizzo v. Goode,

423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).

oe el

15a

However, given the nature of the plaintiffs’ claims in this

action, traditional notions of federal-state relations, rather than

requiring abstention, impel this court to intervene, not only

to protect the plaintiffs’ constitutional rights, but also to en-

force the congressional intent underlying the recent amend-

ments to the Social Security Act.

Younger, and the cases which follow it, involved, in

essence, an attempt by a defendant in a pending state court

proceeding to remove the action to federal court, without

congressional authorization, based solely upon the dual claims

that his constitutional rights had been or were being violated,

and the expressed or unexpressed belief that federal courts

were somehow more sympathetic to constitutional rights.

These arguments were conclusively rejected in Huffman:

“. . . Art. VI of the United States Constitution declares

that ‘the Judges in every State shall be bound’ by the

Federal Constitution, laws, and treaties. Appellee is in

truth urging us to base a rule on the assumption that state

judges will not be faithful to their constitutional respon-

sibilities. This we refuse to do.”

420 U.S. 611, 95 S.Ct. 1211.

[9] However, the challenges mounted by the plaintiffs

in the present case are not exclusively substantive, constitu-

tional ones. Consequently, the federalism issue must be viewed

in a slightly different focus. Before this court can reach the

plaintiffs’ constitutional claims, it must first consider their

claim that the state statute has been preempted by the recent

amendments to the Social Security Act and the regulations to

be promulgated thereunder. Although authority to invalidate a

state law on preemption grounds is derived from the suprem-

acy clause,® the test of the Connecticut statute’s invalidity is

8 U.S.Const. art. VI, clause 2.

16a

whether it conflicts with federal legislation, not with a specific

provision of the Constitution. The preemption doctrine, there-

fore, primarily involves the exercise of statutory interpretation,

i.e., the determination, in the absence of specific direction, of

the congressional intent behind a specific statute or regulatory

program. Cf. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct.

258, 15 L.Ed.2d 194 (1965) .°

Federalism requires a different result in cases turning on

the interpretation of federal statutes than it does in the cases

presented in the Younger line of decisions. In addition to their

special expertise in the interpretation of federal statutes, fed-

eral courts are more likely to give the proper emphasis to con-

gressional intent and the necessary supremacy of federal law

in the case of an actual conflict between federal and state

legislation. Although all judges, state and federal, are sworn

to uphold the federal laws and Constitution, state judges are

not sworn to protect the legitimate interests of the national

government at the expense of the legitimate interests of their

own state sovereigns.

[10] This is not to say that pre-emption is common, or

that it is a doctrine which should be aggressively applied by

federal courts. Nor is it to say that state courts are not capa-

ble of giving proper weight to the national interests underlying

federal legislation. It is simply a recognition that considerations

of federalism necessarily recognize an area of expertise in each

of the two overlapping court systems. As the Supreme Court

9 Justice Harlan, in his opinion in Swift, concluded that an action

for an injunction aga a state statute on the ground of pre-

emption did not require convocation of a three-judge district court.

He pointed out the distinction between the supremacy clause and

the “substantive provisions” of the constitution, and reasoned that

comity considerations were minimal in pre-emption cases. This

position has recently been reaffirmed in Moe v. Confederated Salish

yr 5 Tribes, = U.S. ____, 96 S.Ct. 1634, 48 L.Ed.2d

*See Kurland, Toward a Co-operative Judicial Federalism: The

Federal Court Abstention Doctrine, 24 F.R.D. 481, 487.

——~

Pi eine

17a

stated in England v. Louisiana State Board of Medical Exam-

iners, 375 U.S. 411, 415-16, 84 S.Ct. 461, 465, 11 L.Ed.2d 440

(1964):

“Abstention is a judge-fashioned vehicle for according

appropriate deference to the ‘respective competence of

the state and federal court systems.’ Louisiana P. ¢ L. Co.

v. Thibodaux, 360 U.S. 25, 29 [79 S.Ct. 1070, 3 L.Ed.2d

1058]. Its recognition of the role of state courts-as the

final expositors of state law implies no disregard for the

primacy of the federal judiciary in deciding questions of

federal law.* ”'°

[11] This distinction, between plaintiffs’ . aims based

on substantive constitutional grounds and those based on pre-

emption, is especially important for yet another reason. An

additional factor in Younger cases is the hesitancy of lower

federal courts to interfere in an ongoing judicial proceeding

under any circumstances. A finding of pre-emption, however,

is a finding that the intrusion has already occurred. If this

court were to conclude that the recent amendments to the

Social Security Act pre-empted any application of § 52-440b,

it would be a finding that for reasons of national policy

Congress had intended that the pending state court actions

should not have been instituted. It would be a finding con-

cerning the validity of the proceeding itself, not just concerning

©The recognition of the special expertise of the lower federal

courts has been reaffirmed as recently as Steffel v. Thompson, 415

U.S. 452, 464, 94 S.Ct. 1209, 1218, 39 L.Ed.2d 505 (1974). In that

decision the Court cited F. Frankfurter & J. Landis, The Business

of the Supreme Court 65 (1928), and emphasized that:

“With this latter enactment [of the Judiciary Act of March

3, 1875}, the lower federal courts ‘ceased to be restricted tri-

bdunals of fair dealing between citizens of different states and

became the primary and powerful reliances for vindicating

every right given by the Constitution, the laws, and treaties

of the United States.’”” (Emphasis added in Supreme Court

opinion. )

And see Colorado River Water Conservation District v. United

States, U.S. __, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).

18a

the constitutionality of the particular statute or its particular

application. While this would clearly be an intrusion into a

legitimate sphere of the state interest, it would be an intrusion

accomplished at the direction of Congress, and one which is

clearly within Congress’ power to direct.

For these reasons we conclude that notions of federalism,

the second consideration underlying the Younger doctrine,

likewise do not compel us to refuse to intervene in this action.

C. Availability of a State Forum

[12] Finally, there is an independent ground upon

which abstention must be rejected. An essential prerequisite

of abstention, viz. a forum in which the plaintiffs can present

their constitutional claims, is not available under the special

facts of this case.

In Gibson v. Berryhill, 411 US. 964, 577, 93 S.Ct. 1689,

1696, 36 L.Ed.2d 488 (1973), the Supreme Court stated:

“. . « Younger v. Harris contemplates the outright dis-

missal of the federal suit, and the presentation of all

claims, both state and federal, to the state courts. Such a

course naturally presupposes the opportunity to raise and

have timely decided by a competent state tribunal the

federal issues involved.”

And see Huffman, 420 U.S. at 594, 95 S.Ct. 1200.

Under the terms of § 52-440b, the Commissioner has the

recalcitrant mother cited to appear before a judge of the

court of common pleas. There she is ordered by the judge to

testify and/or to institute a paternity action. If she refuses to

do either she may be found in contempt of court. The statute

contemplates a summary procedure, and does not appear on

its face to allow the mother the right to challenge the authority

;

19a

of the Commissioner to institute the proceedings, the central

issue in this case. The summary contempt procedure appar-

ently intended by the statute, and as disclosed in the tran-

scripts included in the record, does not appear to allow the

mother an opportunity to fully litigate any defenses, much

less complex constitutional and Statutory issues. Cf. New

Haven Tenants’ Representative Council, Inc. v. Housing

Authority of City of New Haven, 390 F.Supp. 831 (D.Conn.

1975).

Furthermore, if we look beyond the theoretical concept of

a court trial and consider the unique Connecticut philosophy,

it appears that the court of common pleas might refuse to con-

sider any constitutional challenge. In State v. M uolo, 119 Conn.

323, 326, 176 A. 401, 403 (1935), the Connecticut Supreme

Court stated:

“In the absence of constitutional or statutory prohibition,

any court has power to pass on the constitutionality of

a statute and it may be its duty to declare it invalid, but

a proper regard for the great co-ordinate branch of our

government, the legislative, and for the preservation of

the respect of our citizens, who are apt to look askance

upon a decision of a court so limited in its jurisdiction as

the city court of New Haven holding invalid the con-

sidered legislative judgment, dictates that such a court

should take such action only upon the clearest ground or

where the rights of litigants make it imperative that it

should do so. Otherwise it is better for such a court to

leave the decision to our higher courts, to which the

matter may be brought by appeal or otherwise.”

While this may appear to leave room for a common pleas

court to pass on constitutional issues and even to mandate that

they do so in “imperative” cases, the doctrine has evolved to

the point where the lower courts in Connecticut have refused

)

20a

to hear constitutional defenses in criminal prosecutions," not

to mention welfare cases.'?

Since there is no guarantee that the plaintiffs would be

able to raise their constitutional and statutory defenses in the

pending state proceedings, which is the fundamental point

on which abstention rests Younger does not prevent the inter-

vention of this court at this stage to protect the plaintiffs’ rights

to litigate those issues.

Having decided, for the several reasons set forth above,

that our exercise of jurisdiction over this case does not jeop-

ardize federal-state relations within the sphere of judicial au-

thority, we turn next to the question of whether, at the legis-

lative level, the law: enacted by the Congress conflict with

the Connecticut statute challenged in this case under the

supremacy clause.

"| See Children’s Exhibit “B” on Remand. This exhibit consists of

three memorandum decisions to deal with

issues in criminal cases. In each case the circuit court (now the

court of common pleas) relied on State v. Muolo.

12 Helm v. Welfare Commissioner, 32 Conn. Sup. 595, 600, 348 A.2d

317, 321 (Super.Ct.App.Sess.1975). On review of a circuit court

decision, the “judge panel held:

“Initially the plaintiff assigned as error the court’s failure to

left to a court of higher jurisdiction. State of Muolo, 119 Conn.

323, 326 (176 A. 401.)”

It may be noted that in 1974, Connecticut reorganized its judicial

system so as to consolidate its civil courts into a unified system of

courts of common pleas. 1974, P.A. No. 74-183. This new system

became effective on December 31, 1974.

Although the decisions cited above all arose in the old circuit

courts, there is no reason to believe that the new courts of common

Helm v. Welfare Commissioner, supra, involved an appeal from

a circuit court, but taken under the new hae procedure. In

the opinion, which upholds the continued val ty of State v. Muolo,

the court does aos eee that the demise of the circuit courts has

in any way weak the effect of the doctrine.

Mes ne

2la

II. Pre-emption

[13] Preliminarily it should be noted that although this

issue was considered in this court's earlier opinion,"? the issue

of pre-emption now comes before us in a somewhat different

posture because of new federal laws enacted since that time.

We must, therefore, consider this issue “in light of [the law]

as it now stands, not as it once did.” Hall v. Beals, 396 U.S. 45,

48, 90 S.Ct. 200, 201, 24 L.Ed.2d 214 (1969).

In its mandate to this court, the Supreme Court noted:

“. . . [S]ince that time Pub.L. 93-647, 88 Stat. 2337, was

enacted. Pub.L. 93-647 amends § 402(a) of the Social

Security Act to require parents, as a condition of eligi-

bility for AFDC assistance, to cooperate with state efforts

to locate and obtain support from absent parents but

provides no punitive sanctions comparable to that pro-

vided by Conn.Gen.Stat. Rev. § 52-440b (1973).”

Section 402(a), 42 U.S.C.A. § 602(a) (1976 Supp.), has

been amended once again since the Supreme Court's ruling

by Pub.L. No. 94-88 § 208(a) (Aug. 9, 1975) so that, with this

most recent amendment shown in brackets, it now reads:

“§ 402(a):

“A state plan for aid and services to needy families with

children must. . . .

“(26) provide that, as a condition of eligibility for aid,

each applicant or recipient will be required —

“(B) to cooperate with the State ( i) in establishing the

* paternity of a child born out of wedlock with respect

3 365 F.Supp. at 70-73.

22a

to whom aid is claimed, and (ii) in obtaining support

payments for such applicant and for a child with re-

spect to whom such aid is claimed, or in obtaining

any other payments or property due such applicant or

such child [unless (in either case) such applicant or

recipient is found to have good cause for refusing to

cooperate as determined by the State agency in accor-

dance with standards prescribed by the Secretary,

which standards shall take into consideration the best

interests of the child on whose behalf aid is claimed];

and that, if the relative with whom a child is living is

found to be ineligible because of failure to comply with

the requirements of subparagraphs (A) and (B) of

this paragraph, any aid for which such child is eligible

will be provided in the form of protective payments as

described in section 406(b)(2) (without regard to sub-

paragraphs (A) through (E) of such section);

“(27) provide, that the State has in effect a plan ap-

proved under part D and operate a child support

program in conformity with such plan.”

Whatever one may think of the wisdom of these new

amendments, which now condition eligibility for welfare assis-

tance on cooperation in locating and obtaining support from

absent parents and which require the State to set up a separate

program to accomplish this result, it is readily apparent that

Congress had strong views in favor of the enforcement of the

parental obligations of fathers of children of unwed mothers.”

4 In looking to the circumstances at the time the amend-

ment a made, see Moor v. County of Alameda, 411 U.S. 693, 709,

93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), it may be noted that the

my! yor (ee A oy - fo by any cn

un mo was

oan A g.- was aware of the fact that the number of

AFDC recipients whose fathers were absent from the home had

increased m 2.4 million persons in 1961 to 8.7 million by the

end of June 1974. wes epeaeve history of Pub.L. No. 93-647, 1974

pisses Ome A

-News, 93d Cong., 2d Sess., Vol. 4, at

23a

Many strands have been woven together (including in-

centives for both the family and the State) in the establish-

ment of this new legislation designed to enforce the obliga-

tions of the absent parent. Indeed, the new provisions added

to Title IV of the Social Security Act by Pub.L. No. 93-647

are sO co ive that Congress established a new “Part D

— Child Support And Establishment Of Paternity” to embrace

them. Pub.L. No. 93-647 § 101 (Jan. 4, 1974), U.S.Code Cong.

& Admin. News, 93d Cong., 2d Sess., Vol. 2, at 2716,.2732-43."5

Detailed explication of all of them is not necessary for pur-

poses of considering the pre-emption claim of the plaintiffs. In

essence, the new amendments make an unwed motber who

refuses to cooperate ineligible for benefits, a result which this

court earlier held to be an illegal deprivation of benefits to

her. Cf Doe v. Norton, 365 F.Supp. at 71-72 and n. 8. To pro-

tect against an arbitrary denial of benefits, the new legisla-

tion specifically requires that the mother may not be found

ineligible if she “is found to have good cause for refusing to

cooperate,” under standards that “shall take into considera-

tion the best interests of the child on whose behalf aid is -

claimed.” We turn now to consider whether the Connecticut

legislation conflicts with the federal statute as so amended to

such a degree that the state statute must be struck down.

'S Since Social Security was first enacted nearly 40 years ago, Con-

gress has constantly revised it. In addition to the amendment of

§ 402(a) by Pub.L. No. 93-647 (Jan. 4, 1974), to provide that an

unwed mother’s eligibility should be condition on a certain

amount of cooperation with State efforts to locate and obtain

support from a t governs, of relevance also is new § 454, 42

U.S.C.A. § 654 (1976 Supp.), which in essence requires that a State

tary may by regulation presse) to undertake to establish

of wedlock. 454(4)(B). It also

requires that the plan provide that “the child support collection

tion services established under the plan shall

be made available to individual not otherwise eligible for such

services... .” § 454(6) (A).

New § 457, 42 U.S.C.A. § 657 (1976 Supp.), deals with “Distribution

of Proceeds;” it provides:

“(1) 40 per centum of the first $50 of {monthly cappert pay-

ments collected) shall be paid to the family without any

24a

The argument for pre-emption is that the application of

the state’s statute will obstruct the effectuation of the federal

policy expressed in the above statutory provisions to such a

degree that the state interests must yield. Viewing the new

Part D from that perspective, it cannot be denied that Con-

gress has adopted a very expansive program for establishing

paternity and collecting support, one calling for the exercise

of power on so many fronts that very little area is left open

for state action.

[14-16] But the existence of this broad area of mutuality

of purpose of state and federal authority is insufficient to com-

pletely preclude state action. DeCanas v. Bica, US.

, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976). Thus, the argument

that § 52-440b is invalid because Congress has not chosen to

require contempt proceedings against an uncooperative mother

cannot be sustained. Congressional purpose to displace local

laws must be clearly manifested. H. P. Welch Co. v. New

Hampshire, 306 U.S. 79, 85, 59 S.Ct. 438, 83 L.Ed. 500 ( 1939).

Where the federal statute has not expressly proscribed certain

action but has merely been silent there is no basis for an infer-

ence that Congress intended to forbid state supplementary

action.

“, . . [T]he intent to supersede the exercise by the state

of its police power as to matters not covered by the Fed-

eral legislation is not to be inferred from the mere fact

that Congress has seen fit to circumscribe its regulation

decrease in the amount paid as assistance to such family during

such month.”

Sections 454(4)(A) and (B), 42 U.S.C.A. § 654(4)(A), (B) (1976

Supp.), which were to be parts of the State plan for child support,

were further amended by Section 208(b) and (c) of Pub.L. No.

94-88 (Aug. 9, 1975), which qualified the state’s duty to establish

paternity and compel support. These actions are to be undertaken

“.. . unless the agency administering the plan of the State

determines in accordance with the endente rescribed by

the Secretary pursuant to 602(a)(26)(B) of title that it

is against the best interests of the child to do so.”

ie Ol DN apie Nat ill as Ig til Eat ads ie. “ERLE La it i i aaa

ye ane es Ee

23a

and to occupy a limited field. In other words, such intent

is not to be implied unless the act of Congress fairly in-

terpreted is in actual conflict with the law of the state.

This principle has had abundant illustration.” ( Citations

omitted. )

Savage v. Jones, 225 U.S. 501, 533, 32 S.Ct#715, 726, 56 L.Ed.

1182 (1912). Nor does the identity of state and congressional

purpose furnish a sufficient basis for a finding of congressional

intent that the state should refrain from taking steps beyond

those which Congress requires of it to achieve their mutual

purpose. When a similar argument was presented in New York

State Department of Social Services v. Dublino, 413 US. 405,

415, 93 S.Ct. 2507, 2514, 37 L.Ed.2d 688 (1973), the Court

responded:

“We do not agree. We reject, to begin with, the conten-

tion that pre-emption is to be inferred merely from the

comprehensive character of the federal work incentive

provisions. . . .”

And see DeCanas v. Bica, US. ——, 96 S.Ct. 933, 47

L.Ed.2d 43 (1976).

In Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404,

85 L.Ed. 581 (1941), Justice Black observed that in consider-

ing whether state laws were pre-empted by federal laws

dealing with the same subject, the Court

“has made use of the following expressions: conflicting;

contrary to; occupying the field; repugnance; difference;

irreconcilability; inconsistency; violation; curtailment;

16 The Court explained:

“The subjects of modern social and regulatory legislation often

Som the Cotgrem tat ee yo —- I~

m ngress, bu ou ngress n n

its enactment as the exclusive means of meeting the problem."

413 U.S. at 415, 93 S.Ct. at 2514.

and interference. But none of these expressions provides

an infallible constitutional test or an exclusive constitu-

tional yardstick. In the final analysis, there can be no one

crystal clear distinctly marked formula. . . .”

While none of these is an inappropriate description of pre-

emption formulae in earlier cases, the difficulties which for-

merly attended a determination of pre-emption have been

reduced." There has been a shift from the multifarious theories

that formerly underlay pre-emption to a much narrower field

for judicial analysis.

[17] While “. . . prior cases on pre-emption are not

precise guidelines,” City of Burbank v. Lockheed Air Termi-

nal, Inc., 411 U.S. 624, 638, 93 S.Ct. 1854, 1862, 36 L.Ed.2d

547 (1973), the situation here is comparable to that in Dublino

where the Court held that state work incentive programs in

the administration of the AFDC program, which were com-

plementary to those of HEW, were not pre-empted. In that

case the crux of the test for pre-emption in the context of

AFDC legislation is clearly set forth:

“In considering the question of possible conflict between

the state and federal work programs, the court below

will take into account our prior decisions. Congress ‘has

given the States broad discretion,’ as to the AFDC prog-

ram, Jefferson v. Hackney, 406 U.S. 535, 545 [92 S.Ct.

1724, 32 L.Ed.2d 285] (1972); see also Dandridge v. Wil-

liams, 397 U.S. at 478 [90 S.Ct. 1153, 25 L.Ed.2d 491];

King v. Smith, 392 U.S. 309, 318-319 [88 S.Ct. 2128, 20

L.Ed.2d 1118] (1968), and ‘{s]o long as the State’s

7 For criticisms of the several pre-emptive standards in earlier

cases, see Note, Preemption as a Preferential Ground: A New Canon

of Construction, 12 Stan.L.Rev. 208 (1959); Selected Essays 1938-

62, 310 (1963); and of the recent in the Court’s approach

to pre-emption, see Note, The Preemp Doctrine: Shi Per-

Stine. Federalism and the Burger Court, 75 Colum.L.Rev.

623 ( ‘

;

27a

actions are not in violation of any specific provision of

the Constitution or the Social Security Act,’ the courts

may not void them. Jefferson, supra, at 541 [at 1729 of 92

S.Ct.] Conflicts, to merit judicial rather than co-operative

federal-state resolution, should be of substance and not

merely trivial or insubstantial. But if there is a conflict

of substance as to eligibility provisions, the federal law of

course must control. King v. Smith, supra; Townsend v.

Swank, 404 U.S. 282 [92 S.Ct. 502, 30 L.Ed.2d 448]

(1971); Carleson v. Remillard, 406 U.S. 598 [92 S.Ct.

1932, 32 L.Ed.2d 352] (1972).”

413 U.S. at 423 n. 29, 93 S.Ct. at 2518."8

The new amendments outlined above require that the

eligibility of an unwed mother be determined solely under

standards to be established by HEW, pursuant to the provi-

sions of the Social Security Act. Close attention was paid by

Congress to the interests of the children in requiring their un-

wed mothers to cooperate in establishing the parental obliga-

tions of their fathers. It is not until after a member of the

plaintiff mothers’ class is found not to have “good cause for

refusing to cooperate,” under “standards that take into con-

sideration the best interests of the child on whose behalf aid

is claimed,” that the defendant Commissioner may resort to

the ancillary remedy available under the state statute. Leaving

this determination to state administration of an AFDC

is in accord with tradition; HEW has never had direct contact

with applicants for assistance. In view of the establishment

of such safeguards of the child’s best interests, the state law,

which comes into play only after the defendant Commissioner

'8In determining whether a substantial conflict exists between

state and federal statutes, the court must construe both as narrowly

as the language and aginatve history permit. Only after first

eae to reconcile the statutes may the court find a conflict

and thus avoid rul on a substantive constitutional claim. Cf.

National Ass’n of Regulatory Util. Comm’rs v. Coleman, 399 F. Supp.

1275, 1278 (M.D.Pa.1975).

28a

has complied with the provisions of the Social Security Act,

can hardly be regarded as frustrating any part of the purpose

of the federal legislation. On the contrary, it strengthens it.

Where the federal policy favoring disclosure of the name

of the father is as strongly manifested as here, it stands logic

on its head to argue that Connecticut's statute is in conflict with

that policy."? Indeed, the whole of the new Part D would be

nothing but an exercise in futility if the putative father should

never be identified. The ancillary remedial process afforded by

§ 52-440b, which is specifically designed to obtain the name

of the father, builds upon a legal obligation established by

the state; it supplements, but does not alter or supplant, the

federal law. Rather than being inconsistent with Part D it

may often be the sine qua non for any use at all of Part D.

There is no reason why the State of Connecticut “might not

properly beget a more serious penalty, if the [Connecticut]

legislature deemed it wise.” California v. Zook, 336 U.S. 725,

'9 It is clear that prior to the enactment of Pub.L. No. 94-88, HEW

Saw no conflict between the requirement in § 52-440b that the

mother pa a paernly action, and the federal statute as amended

by Pub.L. No. 93-647.

45 C.F.R. § 232.11 (1975), which deals with the duty of the ap-

plicant to assign any rights of support, states:

“(c) If there is a failure to execute an assignment pursuant

to this a the State may attempt to establish paternity

and collect d support pursuant to appropriate State statutes

and regulations.”

ply

assign rights to su rt, but a duty which is also enforced in

Connecticut under § 32 4 440b.

to require the Commissioner to make the determination concerning

the best interests of the child bef

, the amendment itself adds —— to the pre-emption

argument. If the Commissioner finds that

ceedings against the mother is not contrary to the best in

of the child, the Co onal concern is satisfied. Furthermore

the child’s interests are fully protected, since the initiation of

fair hea at which the Commissioner’s determination can be

reviewed. ldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 101 1, 25 L.Ed.2d

287 (1970). Cf. Mathews v. Eldridge, |’ U.S. , 96 S.Ct. 893,

47 L.Ed.2d 18 (1976).

29a

736, 69 S.Ct. 841, 846, 93 L.Ed. 1005 (1949). Even with the

use of § 52-440b there is no guarantee of a successful outcome.

[18] Applying the foregoing principles, our conclusion

is that no sufficient ground appears for denying validity to the

Connecticut statute under the doctrine of pre-emption, once

the Commissioner has made the required determination re-

garding the best interests of the child. The statute does not

cover the same ground as the new Part D of the Social Secu-

rity Act and is not in conflict with it. Because we hold that

the state statute is not incompatible, and is therefore not pre-

empted by the federal statute, we must now consider the con-

stitutional questions which the plaintiffs have presented.

III. The Constitutional Issues

The plaintiffs renew the argument that to subject an un-

wed mother to the sanctions of the statute must be so contrary

to the best interests of her child that § 52-440b cannot be

constitutionally applied under any circumstances.

We have previously dealt with the claims of both the

mothers and their children that the state statute challenged

in this action violates their substantive constitutional rights. In

denying those claims, each of the theories advanced by the

plaintiffs were discussed at length and no useful

would be served by repetition here. We adhere to the conclu-

sions reached in our former opinion.

IV. Modification of Prior Opinion

[19,20] The supremacy of federal law does come into

play in this case in one respect. Although § 52-440b can stand

unimpaired, the defendant's right to resort to its use must

now be conditioned upon his prior compliance with condi-

tions which did not previously exist. The new amendments

to the Social Security Act require that the defendant Com-

30a

missioner may not find an unwed mother who refuses to co-

operate in establishing the paternity of her child born out

of wedlock ineligible for benefits until he first determines that

she does not have good cause for refusing to cooperate, under

standards which take into account the best interests c! the

child.” Compliance with these requirements does not jeop-

ardize any legitimate interest in federalism. The defendants

are required to comply with such regulations as the Secretary

of HEW shall issue (including the right to a fair hearing )

before continuing with the contempt proceedings against

these plaintiffs. This is so even though the proceedings were

commenced before the new law was enacted. Thorpe v.

Housing Authority, 393 U.S. 268, 282, 89 S.Ct. 518, 21 L.Ed.2d

474 (1969). Until the defendant Commissioner has made the

required determinations, continuation by him of the con-

tempt proceedings against the plaintiffs, or removing them

from the welfare rolls for their failure to “cooperate,” is at the

very least inappropriate. Cf. Diffenderfer v. Central Baptist

Church, 404 U.S. 412, 92 S.Ct. 974, 30 L.Ed.2d 567 (1972).

20It has been brought to our attention that because Pub.L. No.

94-88, § 208 (Aug. 9, 1975), requires that pro regulations

mplomen the nat interests of the child’

ongress for c ap

the entire quantmant

regulations have been approved. We do not believe that this is the

proper construction of act.

further decided to exercise close supervision over the

implementing regulations.

enforcement action is not against the best interests of the d, to

postpone i= enforcement until the new regulations have been

De AE ONS Ne: Ts 8 tact Sabai ele

3la

We therefore order that the defendant shall not remove

the plaintiff mothers from the status of eligibility or begin or

continue with any pending contempt proceedings against them

under § 52-440b until after full compliance with the provi-

sions of Section 402(a)(26) of the Social Security Act as

amended. In all other respects, however, the relief requested

by the plaintiff is denied.

SO ORDERED.

NEWMAN, District Judge (concurring in the result):

Since the Court concludes that the Commissioner’s failure

to make a determination as to whether disclosure of the

father’s identity is in the best interests of the child is incon-

sistent with the requirements of the Social Security Act, 42

U.S.C. § 402(a)(26)(B), the Supremacy Clause requires that

the Commissioner either forego seeking compulsory disclo-

sure or forego receipt of federal funds. See Rosado v. Wyman,

397 U.S. 397, 420, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). It is

unlikely that the Commissioner will elect to forego federal

funds. In any event, he should be given an opportunity to

decide whether to bring the state program into conformity

with federal statutory requirements before this Court rules on

whether compelled disclosure, without the statutorily required

determination, encounters constitutional objections, Because |

agree with the conclusion that the statutory requirement has

not been met, I concur in the result, without consideration of

the constitutional issues. See, generally, Soifer, Parental Auton-

omy, Family Rights and the Illegitimate: A Constitutional

Commentary, 7 Conn.L.Rev. 1 (1974).

My view of the limited statutory issue before us also

affects the abstention issue. If we were required to decide the

constitutionality of the state contempt proceedings, we would

encounter the issue of Younger abstention, to which the

Supreme Court’s remand directed our attention. But since

32a

the statutory issue suffices for decision of the case at this point,

our relief need not enjoin any state proceedings. Technically,

according to Rosado, our relief should be a declaration and

injunction barring the Commissioner from receiving federal

funds until his disclosure policy is in compliance with federal

statutory requirements. Such an order does not by its terms

enjoin any state proceedings, and therefore should not

encounter Younger objections. If the Commissioner chooses to

withdraw his contempt applications in order to assure receipt

of federal funds, Younger does not stand in the way of a fed-

eral court ruling that precipitates such state administrative

action.

Since, thus analyzed, the abstention issue does not pre-

clude relief, there is no reason to place any reliance on the

supposed lack of capacity of the Connecticut Court of Com-

mon Pleas to adjudicate constitutional issues. See State v.

Muolo, 119 Conn. 323, 176 A. 401 ( 1935). That decision was

announced more than forty years ago in the context of the

former town courts, in which judges were not required to be

attorneys, and from which most appeals were taken de novo.

Conn. Gen. Stat. §§ 51-134, 54-12 (1958). Even as to a court

of such limited authority, the Muolo decision did not pre-

clude it from constitutional adjudication, but simply indicated

that it should take such action “only upon the clearest ground

or where the rights of the litigants make it imperative that

it should do so.” 119 Conn. at 326, 176 A. at 403.

It is true that in some instances the Connecticut Circuit

Court, which replaced the town courts, viewed Muolo as

authority for declining to rule on constitutional issues, see

decisions collected in Children’s Exhibit B on Remand, and

in at least one instance the appellate session of the Superior

Court approved this practice. Helm vy. Welfare Commissioner,

32 Conn. Sup. 595, 600, 348 A.2d 317, 37 Conn. L.J. No. 24, at

12, 14 (1975). Whether that approach of total abdication of

33a

responsibility or even the restrictive approach of Muolo has

continuing validity in the context of the modern Connecticut

Court of Common Pleas is a highly questionable proposition.

In the first place, Muolo itself suggested that unless constitu-

tional adjudication were imperative, it would be better for

the former town courts “to leave the decision to our higher

courts, to which the matter may be brought by appeal or

otherwise.” 119 Conn. at 326, 176 A. at 403. Yet the Court of

Common Pleas itself was one of the higher courts to which

appeals from the town courts were taken. Plainly Muolo does

not intimate any restriction on the capacity or respon-

sibility of the Court of Common Pleas to adjudicate

constitutional issues. And there is no reason to assume

that the responsibility of that court has been diminished simply

because the jurisdiction of the former Circuit Court has been

merged with its own.

Furthermore, serious constitutional issues are posed by

the suggestion that a state judge, even of a court of limited

jurisdiction, can decline to adjudicate a federal constitutional

or statutory question when it arises in a case properly within

his jurisdiction. Cf. Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810,

91 L.Ed. 967 (1947). Mondou v. New York, N.H. & H.R. Co.,

223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327 (1912). He has taken

an oath to uphold the United States Constitution, and his

oath,' and the Supremacy Clause,? may well obligate him to

decide federal constitutional and statutory questions properly

before him. It has been held that even a state constitutional

provision limiting the authority of lower state courts to decide

constitutional questions cannot displace the Supremacy

'Conn.Const., Art. XI, § 1 (1965); Conn.Gen. Stat. § 1-25. The oath

is itself required by the United States Constitution: “... all...

judicial Officers . . . of the several States, shall be bound by Oath

or Affirmation, to support this Constitution... .” U.S.Const., Art. VI.

2 “This Constitution, and the laws of the United States . . . Shall be

the supreme Law of the Land; and the Judges in eve State shall

be bound thereby, any Thing in the Constitution or ws of any

State to the Contrary notwithstanding. . . .” U.S.Const., Art. VI.

34a

Clause requirements imposed upon all state judges. People v.

Western Union Tel. Co., 70 Colo. 90, 198 P. 146 ( 1921).

In this litigation, I have previously expressed the view

that rather sensitive constitutional adjudication will be re-

quired of State Common Pleas judges in the course of con-

sidering contempt actions to compel disclosure of the father’s

identity. 365 F.Supp. at 84. How that adjudication wil! be

affected by the administrative determination now required

is also a question that need not be anticipated at this point.

But I place no reliance whatever on any limitation of the

responsibility of a State Common Pleas judge. It will be time

enough to consider that issue when a litigant can demon-

strate, in a case properly within our jurisdiction, that she has

been injured by the failure of a Common Pleas judge to decide

an issue arising under the Constitution or laws of the United

States. Until such a case arises, I prefer to think that judges

of the Common Pleas Court will seriously accept and dis-

charge the responsibilities imposed upon them by the Suprem-

acy Clause. See New Haven Tenants’ Representative Council,

Inc. v. Housing Authority of City of New Haven, 390 F.Supp.

831 (D.Conn. 1975).

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35a

APPENDIX B

Judgment of the three-judge

District Court below.

FILED

Jun 17 3:03 P.M. 76

U.S. DISTRICT COURT NEW HAVEN, CONN.

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

CIVIL NO. 15,579

DONNA DOE, ET AL, Individually and on behalf of all

others similarly situated

EDWARD MAHER, Individually and as Commissioner of

Social Services of the State of Connecticut

CIVIL NO. 15,589

SHARON ROE, ET AL, Individually and on behalf of all

others similarly situated

EDWARD MAHER, Individually and as Commissioner of

Social Services of the State of Connecticut

JUDGMENT

This case having come on for further proceedings before

the Three-Judge District Court upon remand by the Supreme

Court of the United States,

And the Court having filed its Memorandum of Decision,

under date of June 1, 1976,

36a

It is ORDERED, ADJUDGED and DECREED that the

defendant shall not remove the plaintiff mothers from the

status of eligibility or begin or continue with any pending

contempt proceedings against them under § 52-440b until after

full compliance with the provisions of Section 402(a) (26) of

the Social Security Act as amended. In all other respects, how-

ever, the relief requested by the plaintiffs be and is hereby

denied.

Dated at New Haven, Connecticut, this 17th day of

June, 1976.

SYLVESTER A. MARKOW'SKI,

Clerk, U.S. District Court

By: Frances J. Coneglio

Deputy in Charge

APPROVED:

WILLIAM H. TIMBERS, US. Circuit Judge

M. JOSEPH BLUMENFELD, US. District Judge

JON O. NEWMAN, U5. District Judge

37a

APPENDIX C

Notice of Appeal.

FILED

Jul 29 11:07 A.M. 76

U.S. DISTRICT COURT NEW HAVEN, CONN.

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Civil Nos. 15,579 & 15,589

July 29, 1976

DONNA DOE, ET AL, Individually

and on behalf of all others

similarly situated

SHARON ROE, ET AL, Individually

and on behalf of all others

similarly situated

Vv.

EDWARD MAHER, Individually and

as Commissioner of Social Services

of the State of Connecticut

NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES

Notice is hereby given that Edward W. Maher, Commis-

sioner of Social Services of the State of Connecticut, the defen-

dant above named, hexeby appeals to the Supreme Court of

the United States from the final judgment ordering the per-

manent injunction enjoining the defendant from further

38a

enforcing Index (Section) 404.6, effective November 1, 1975,

of the Connecticut Department of Social Services Policy

Manual entered in this action on the 17th day of June, 1976.

This appeal is taken pursuant to 28 U.S.C. § 1253.

MICHAEL ANTHONY ARCARI

Assistant Attorney General

90 Brainard Road

Hartford, Connecticut 06114

Tel. 203 - 566-7040

Attorney for Defendant

39a

FILED

Jul29 11:07 A.M. 76

U.S. DISTRICT COURT NEW HAVEN, CONN.

In the

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1975

Civil Nos. 15,579 & 15,589

DONNA DOE, ET AL, Individually

and on behalf of all others

similarly situated

SHARON ROE, ET AL, Individually

and on behalf of all others

similarly situated

Vv.

EDWARD MAHER, Individually and

as Commissioner of Social Services

of the State of Connecticut

CERTIFICATE OF SERVICE

I hereby certify that on this 29th day of July 1976, the

defendant's notice of appeal to the United States Supreme

Court in the above entitled suit was duly served by depositing

the same in a United States Post Office, with first class postage

prepaid, addressed to David Rosen, Esquire, 265 Church

Street, New Haven, Connecticut, Frank Cochran, Esquire,

Connecticut Civil Liberty Union Foundation, 57 Pratt Street,

Hartford, Connecticut, Stephen Wizner, Esquire, Yale Legal

Services, 127 Wall Street, New Haven, Connecticut, Douglas

Crockett, Esquire, Tolland-Windham Legal Assistance Assoc.,

40a

746 Main Street, Willimantic, Connecticut, Elliott Taubman,

Esquire, New London Legal Assistance, 3-11 North Main

Street, Norwich, Connecticut, and Robert Beckman, Esquire,

Norwalk-Stamford and Danbury Regional Legal Services, 342

Atlantic Street, Stamford, Connecticut. I further certify that

all parties required to be served have been served.

MICHAEL ANTHONY ARCARI

Assistant Attorney General

Counsel for the Defendant

90 Brainard Road

Hartford, Connecticut 06114

Tel. 203 - 566-7040

RCA ise ce APC? fate 2a CAE ie ane eles arb | cea Tel

ao Peet Lage

4la

APPENDIX D

Section 404.6, effective November 1, 1975, Volume I,

Chapter III, Supplement IV-D, Connecticut Department

of Social Services, Public Assistance Program Manual.

Connecticut Department of Social Services

Social Service Policies — Public Assistance

Manual Vol. 1 Chapter III Supplement IV-D

CHILD SUPPORT PROGRAM

Absent Parent's Support — AFDC 404.6 - 404.7

404.6 Responsibility for Support

and Establishment of Paternity

Information about the alleged father is obtained from

the mother of the child. If he resides in the State, an

interview is held to discuss the situation and to secure

his Acknowledgement of Paternity.

The mother is required to name the father, by Affirma-

tion of Paternity, under oath and to file a petition to

establish paternity and support.

If the mother is unable to name the father, she is still

eligible for assistance to meet her own needs, the needs

of the child in question, and the needs of any other

children in the family, provided all other eligibility

requirements are met; however, she is informed that

she is subject to be cited to appear before any judge of

the Court of Common Pleas, be compelled to name

the putative father and and to institute an action to

establish paternity of the child.

42a

If the mother is unwilling to name the father, she is

not eligible for assistance to meet her own needs; how-

ever, her children remain eligible for assistance. In this

case also the mother is informed that she will be cited

to appear before any judge of the Court of Common

Pleas and be compelled to name the putative father.

An action to establish paternity of the child will be

instituted by the Child Support Unit.

404.7 Legal Determination of Paternity

Paternity proceedings are initiated in the Court of

Common Pleas in the case of each out-of-wedlock child

for whom the Department has been unsuccessful in

securing a written acknowledgement of paternity and

the mother has named the father. Statements made by

the mother substantiate a likelihood of establishing

paternity when the putative father is residing in the

State.

Issuance Date 11-1-75

wrads Re

Sin Neg eae Abe ed one ln 2

NE A EE Cw OEY Vea P 4:

OP ME. ISS ca Tt tere ETE OO we

NN i ists te stein. hth ch leit ale ahha re

i3a

APPENDIX E

Section 52-440b of the General Statutes

of Connecticut.

Sec. 52-440b. Compelling disclosure of name of puta-

tive father. Institution of action. (a) If the mother of any child

born out of wedlock, or the mother of any child born to any

married woman during marriage which child shall be found

not to be issue of the marriage terminated by a decree of

divorce or dissolution or by decree of any court of competent

jurisdiction, fails or refuses to disclose the name of the puta-

tive father of such child under oath to the welfare commis-

sioner, if such child is a recipient of public assistance, or to a

selectman of a town in which such child resides, if such child

is a recipient of general assistance, or otherwise to a guardian

or a guardian ad litem of such child, such mother may be cited

to appear before any judge of the court of common pleas and

compelled to disclose the name of the putative father under

oath and to institute an action to establish the paternity of

said child. |

(b) Any woman who, having been cited to appear before

a judge of the court of common pleas pursuant to subsection

(a), fails to appear or fails to disclose or fails to prosecute a

paternity action may be found to be in contempt of said court

and may be fined not more than two hundred dollars or im-

prisoned not more than one year or both.

44a

APPENDIX F

Departmental Letters.

UNITED STATES GOVERNMENT

MEMORANDUM

FROM:

SUBJECT:

Elmer W. Smith

Acting Regional Director, OCSE

Acting Director

Office of Child Support Enforcement

Section 208 of P.L. 94-88

RECEIVED

Apr. 6, 1976

PROGRAM OPERATIONS

DATE: Nov. 2], 1975

This is in reply to your memorandum of October

10 in which you raised two questions concerning

approval of the IV-D plan. Your questions, and

our responses thereto, are as follows:

1. Under the authority of P.L. 94-88, Section 208,

New Jersey has included a statement that it

will not be necessary to establish paternity if

it will result in family discord, or deprivation

to legitimate children or be harmful to a new

family. In the absence of standards prescribed

by the Secretary (which are called for by the

statute), New Jersey insists that we would be

unjustified in refusing to approve its plan con-

taining this language. Yet the New Jersey plan

;

)

os ee

PBA he Bt eS Mag

45a

language appears to be much broader than

the statute contemplates and probably much

broader than the Department's regulations

(when promulgated) would find acceptable.

What is your recommendation for dealing with

this issue?

Section 208 of P.L. 94-88 is not a self-imple-

menting statute. We have been advised by the

Office of the General Counsel that when a statute

contains no clear substantive provisions, but rather

requires the Department or Secretary to issue

standards or regulations, States should not amend

their plans until such time as the Department

promulgates such standards or recommendations.

Therefore, State IV-D plans should not be ap-

proved if they contain “ad hoc” State-devised pro-

visions relating to section 208 of P.L. 94-88.

Regulations are currently being developed which

will implement both the IV-A and IV-D provisions

of section 208. In the interim, States have at their

disposal the provisions of 45 CFR 303.5 (b),

which specify that the IV-D agency need not at-

tempt to establish paternity in cases involving in-

cest, forcible rape, or adoption, if it would not be in

the best interests of the child. In addition, we

would hope that the IV-D agency would, regard-

less of the provisions of P.L. 94-88, utilize care and

common sense in administering its program so

that children and their custodial parents or care-

taker relatives will not be harmed by the support

enforcement process.

2. The IV-D preprint contains a provision for

making information available to public offi-

cials. However, section 402 (a) (9) of the Act

46a

relating to safeguarding of information was

amended by P.L. 94-88 to repeal the public

official provision. How should this be handled?

Section 402 (a) (9) does not apply to safe-

guarding of information in the IV-D program.

However, since the IV-A and IV-D programs are

so closely related and serve so much of the same

population, it was determined to be desirable to

extend the same safeguards to the IV-D program

that are applicable to the IV-A program, by virtue

of authority granted by sections 452 (a) (1) and

454 (13) of the Act.

The problem which you raise has now been re-

solved by the promulgation of 45 CFR 302.18,

effective August 1, 1975. The amendment to the

IV-D preprint was issued by OCSE-AT-75-9. An

advance copy is attached for your information.

The Department’s regulations now conform with

the provisions of 402 (a) (9) as amended by

P.L. 94-88.

Joun A. SvAHN

Attachment

eibae: a ce AR Cae Tale ey tena bel ka

Lat EAS PE BI Rt ln Nie i by as Mita ck, OE Oy

47a

DEPARTMENT OF HEALTH, EDUCATION,

AND WELFARE

REGION I

JOHN F. KENNEDY FEDERAL BUILDING

7 GOVERNMENT CENTER

BOSTON, MASSACHUSETTS 02203

Office Of Child Support Enforcement

July 30, 1976

In reply refer to: OCSE

RECEIVED

Aug. 12, 1976

PROGRAM OPERATIONS

Mr. Vincent Capuano

Chief of Eligibility Services

Connecticut Department of Social Services

110 Bartholomew Avenue

Hartford, Connecticut 06105

Dear Mr. Capuano:

Re: Doe et al. v. Maher

In response to your July 12, 1976 letter requesting a legal

opinion; on Doe et al. v. Maher, our regional attorney has con-

sulted with the Office of General Counsel in Washington and

has forwarded to us the following statement:

“We are informed that this decision of the District Court

is consistent with the position taken by HEW pending

the issuance of regulations to implement Public Law 94-

88, and that Footnote 20 of the Court’s opinion somewhat

48a

misconstrues the HEW position. It is true that Section

208 of Public Law 94-88 is not a self-implementing stat-

ute, but rather requires the Secretary to issue standards

or regulations for a State’s determination that a mother

has good cause for refusing to cooperate in establishing

paternity (which standards shall take into account the

best interests of the child on whose behalf aid is claimed).

Until these regulations are issued by HEW, States may

not amend their State plans to implement the statute; and

State IV-D plans will not be approved by HEW if they

contain “ad hoc” State-devised provisions relating to Section

208 of Public Law 94-88. However, in the interim, States

have at their disposal the previously-issued HEW regula-

tions at 45 C.F.R. 303.5(b), which specify that the IV-D

agency need not attempt to establish paternity “in any

case involving incest or forcible rape, or in any case in

which legal proceedings for adoption are pending, if, in

the opinion of the IV-D agency, it would not be in the

best interests of the child to establish paternity.” In addi-

tion, HEW has indicated that IV-D agencies, on a case

by case basis, should utilize care and common sense in

administering the program so that children and their

custodial parents or caretaker relatives will not be harmed

as a result of their cooperating with the State in estab-

lishing paternity or obtaining support. This position of

HEW, encouraging individualized determinations of

whether a mother has good cause (with consideration of

her child’s best interests) for not cooperating in estab-

lishing paternity, would seem to accord with the holding

of the Federal District Court that the defendant Com-

missioner should make a determination that his enforce-

ment action against plaintiffs is not against the best

interests of their children. We also are informed that

49a

HEW will not penalize States for a good faith effort to

ascertain on a case by case basis whether cooperation in

establishing paternity would not be in the child’s best

interests.”

Sincerely,

Cuaries C. GENTILE

Nem P. FALLON

Acting Regional Director

standards which take into account the best interests of

the child. Such standards, to be established by H.E.W.

regulations, are in the process of promulgation by the

H.E.W. Secretary. Pending the establishment of the

aforesaid standards, a tickler will be issued by the

support worker to review the case when policy is

issued.

50a 5la

APPENDIX G If the mother is unwilling to name the father, she and

: her children remain eligible for assistance, pursuant

Section 404.6, Volume I, Chapter III, Supplement IV-D, to the provisions of the ruling in DONNA DOE, et al,

Connecticut Department of Social Services, Public | v. EDWARD MAHER which states that the Com-

ssistance in effect). missioner of Social Services may not find an unwed

—— : mother who refuses to cooperate in establishing the

Connecticut Department of Social Services paternity of her child born out-of-wedlock ineligible

Social Service Policies — Public Assistance for benefits until he first determines that she does not

Manual Vol. 1 Chapter III Supplement IV-D have good cause for refusing to cooperate, under

CHILD SUPPORT PROGRAM

Absent Parent’s Support — AFDC 404.6 - 404.7

404.6 Responsibility for Support

and Establishment of Paternity:

}

Information about the alleged father is obtained from :

the mother of the child. If he resides in the State, an

interview is held to discuss the situation and to secure

his Acknowledgement of Paternity. ;

If the mother is able and willing to name the father,

she is to do so by Affirmation of Paternity, under oath

and to file a petition to establish paternity and support.

If the mother is unable to name the father, she is still

eligible for assistance to meet her own needs, the

needs of the child in question, and the needs of any

other children in the family, provided all other eligi-

bility requirements are met; however, she is informed

that she is subject to be cited to appear before any

judge of the Court of Common Pleas, be compelled to

name the putative father and to institute an action to

establish paternity of the child.

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.