# Jurisdictional Statement — Maher v. Doe

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1977
- **Citation:** 432 U.S. 526

## Text

| 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 ——

i

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
Easames “Of he child” eeneept mentioned the Social Security

Act as amended.

10

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.

11

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.

12

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

13

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

i

14

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

15

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.

16

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.

17

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

a

18

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.

19

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

20

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).

la
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

2a

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,

3a

§§ 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-

4a

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

7a

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

8a

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.

9a

{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

Tr

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

ET
3
>
;

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

y
)
:
-

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

q
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:

Ҥ 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

a

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 ( ‘

:
;
;
4
;
3
#

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).

i
&
3

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

v.
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

v.
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

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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

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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

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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

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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:

}
4
4
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. ;
4
:
i
|

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1067%3A1. Public record. Not legal advice.