Reply Brief — Maher v. Doe

IN THE

Supreme Court of the United States

Octosper TERM, 1975

No. 76-878

EDWARD W. MAHER, Commissioner of Social Services

of the State of Connecticut

Appellant,

v.

e

DONNA DOE, ET AL

Appellee.

On Appeal From The United States District Court

For The District of Connecticut

APPELLANTS REPLY BRIEF IN OPPOSITION TO

APPELLEE'S MOTION TO DISMISS OR AFFIRM

Cari R. AJELLO

Atttorney General

30 Trinity Street

Hartford, Connecticut

MICHAEL ANTHONY ARCARI

Assistant Attorney General

90 Brainard Road

Hartford, Connecticut

i

SUBJECT INDEX

Table of Cases

Statutes Cited

Argument

Conclusion

ii

TABLE OF AUTHORITIES

Cases Cited Page

Doe v. Maher, 414 F. Supp. 1368 (1976) 3

Engineers v. Chicago, R.1. & P. Co., 382 U.S. 423 (1966) 2, 3

Gonzalez v. Employees Credit Union, 419 U.S. 90 (1974) 2, 3

M.T.M., Inc. v. Baxley, 420 U.S, 799 2, 4

Mengelkoch v. Welfare Comm’n., 393 U.S. 83 (1968) 5

Mitchell v. Donovan, 398 U.S, 427 (1970) 5

Philbrook v. Glodgett, 421 U.S. 707 (1975) 2

Phillips v. United States, 312 U.S. 246 (1941) 5

Roe v. Norton, 422 U.S. 391 (1975) 6

Stamler v. Willis, 393 U.S. 407 (1969) | 5

Swift & Co. v. Wickham, 382 U.S. 111 (1965) | 4

Utility Comm'n. v. Pennsylvania R. Co., 382 U.S. 281 (1965) 5

Younger v. Harris, 401 U.S, 37 (1971) 5

Statutes Cited

28 U.S.C. § 1253

Regulations .............. 2,3

§ 404.6, Volume I, Chapter III, Connecticut Department

of Social Services Public Assistance Program Manual 3

IN THE

Supreme Court of the United States

Ocroser Term, 1975

No. 76-878

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

APPELLANTS REPLY BRIEF IN OPPOSITION TO

APPELLEE'S MOTION TO DISMISS OR AFFIRM

I. INSOFAR AS THE STATUTORY CLAIM IS

CONCERNED, THE DECISION OF THE THREE-

JUDGE DISTRICT COURT DOES NOT FALL OUT-

SIDE THE PURVIEW OF 28 U.S.C. § 1253.

The Appellees assert that this Court does not have juris-

diction of this appeal even though a three-judge district court

was convened to hear the merits of Appellees’ constitutional

claim. The Appellees base their assertion on the claim that

“[t]he order at issue in this case could have been made by a

single judge. . . . [and that a] three-judge court is not required

to enjoin enforcement of a state law that conflicts with a fed-

eral statute. . . .” Appellees’ Motion to Dismiss or Affirm, page

6; material in brackets supplied. The short answer to this con-

tention is found in what this Court stated in Philbrook v. Glod-

gett, 421 U.S. 707 (1975), which is as follows:

“. . . At oral argument a question arose regarding the

jurisdiction of this Court over the appeals, 28 U.S.C.

§ 1253, and the parties have filed supplemental briefs on

this point. On authority of Gonzales v, Automatic Em-

ployees Credit Union, 419 U.S. 90 (1974), and MTM,

Inc. v. Baxley, 420 U.S. 799 (1975), appellant Weinberger

contends that any appeal from the District Court’s judg-

ment should have been taken to the Court of Appeals;

appellant Philbrook and appellees contend that the

appeals are properly before this Court.

In Hagans v. Lavine, 415 U.S. 528 (1974), this Court

indicated that it was the preferred practice for a single

judge, when presented with both statutory and constitu-

tional grounds for decision, to resolve the statutory claim

before convening a three-judge court. The District Court

in this case was unable to proceed in that manner because

appellees raised only constitutional contentions in their

complaint, App. 10, and raised their statutory contention,

for the first time, at oral argument before the three-judge

court. Tr. of Oral Arg. before the United States District

Court for the District of Vermont 42-44 ( Mar. 5, 1973).

Appellant Weinberger urges us to reconsider our decision

in Engineers v. Chicago, R.I. & P. R. Co., 382 U.S. 423

(1966), in which we held that, if a three-judge court is

convened and decides a case on statutory grounds, the

judgment may be appealed to this Court under 28 U.S.C.

§ 1253, but we decline to do so.” 421 U.S., at 712-713 n.8.

In this appeal, the three-judge court not only decided the

merits of the statutory claim, but, once again, decided the

—_< —

3

merits of the Appellee’s constitutional claims by adhering to

the conclusions reached in that Court’s former opinion.' Doe

v. Maher, 414 F.Supp. 1368, 1371, 1381, 1382 (1976). The

Appellant has appealed to this Court “from an order granting

.. » after notice and hearing, . . . [a] permanent injunction in

[a] civil action, suit or proceeding required by . . . Act of Con-

gress to be heard and determined by a district court of three

judges.” 28 U.S.C. § 1253; material in italics and brackets sup-

plied.? The order thus appealed from constitutes an appeal-

able judgment to this Court under § 1253 in that such an order

appealed from involved the three-judge court's resolution of the

merits of the statutory claim in a civil action where constitu-

tional claims were pleaded’ and the merits thereof were re-

solved by the three-judge court. Even if the three-judge court

never reached the merits of the constitutional claims after

remand of this case by this Court, the merits of the statutory

claim were decided by the three-judge court and the resulting

order granting the injunction still constituted an appealable

judgment under § 1253. Engineers v. Chicago, R.I. & P. Co.,

382 U.S. 423, 428 (1966). Furthermore, the narrow construc-

tion given § 1253 by this Court is not applicable in direct

review of three-judge court orders that grant injunctions. Gon-

zales v. Employees Credit Union, 419 U.S. 90, 98 (1974).

Nor is this appeal inconsistent with any other rules set

forth by this Court relative to jurisdiction under § 1253. The

decision of the three-judge court went beyond any mere con-

~ Attar comen® sf Wis case Soom Site Court, A ees renewed their

constitutiona! claims as set forth in the Appellees’ complaints, in-

tervening complaints, and oral ar ent. Doe v. Maher, 414 F.Supp.

1368, 1371, 1381, 1382 (1976); Tr. of oral Arg. before the Uni

States District Court, for the District of Connecticut (on order).

2 For more detail concerning said order appealed from, see Appel-

lant’s Jurisdictional Statement.

3 The constitutional claims basically consisted of the constitution-

ality of § 52-440b of the General Statutes of Connecticut, of § 404.6

of the nnecticut Welfare lations, and of the defendant's

actions under and enforcement of § 52-440b te the defendant’s

welfare regulations. Such claims of unconstitutionality were not

grounded on the Supremacy Clause.

4

sideration of dismissing the Appellee’s complaint and beyond

merely dealing with issues short of the merits ‘such as justici-

ability, subject-matter jurisdiction, equitable jurisdiction, and

abstention’ — considerations which prompted this Court's hold-

ings in MTM, Inc. v. Baxley, 420 U.S. 799, 802 (per curiam

1975) and in Gonzalez v. Employees Credit Union, supra at

101. Underscoring the decisions in Baxley and in Gonzalez

relative to jurisdiction under § 1253 and applicable to the in-

stant appeal is the concept that § 1253 authorizes direct re-

view by this Court . . . as a means of accelerating a final deter-

mination on the merits. . . . of any constitutional challenge

not grounded on the Supremacy Clause or of any Supremacy

Clause challenge where there is also asserted a constitutional

challenge which is not grounded on the Supremacy Clause.

Gonzalez v. Employees Credit Union, supra at 96 and at n.14;

Swift & Co, v. Wickham, 382 U.S. 111, 119 (1965); Engineers

v. Chicago, supra at 428.

As the Appellees asserted constitutional claims which

were not grounded on the Supremacy Clause before and after

the remand of this case, no ground existed upon which a single

judge could have declined to convene a three-judge court. See

Gonzalez v. Employees Credit Union, supra at 100. Because

the merits of the statutory claim and the merits of the consti-

tutional issues asserted by the Appellees were decided by the

three-judge court, a justifiable ground was also lacking upon

which the three-judge court could have dissolved itself. Even

if the merits of Appellee’s constitutional issues were not

reached by the three-judge court and the three-judge court

granted an injunction on the merits of the statutory claim

alone, under the authority of Engineers v. Chicago R.I & P.R.

Co., supra, such an order granting the injunction would be an

appealable judgment under § 1253.

Should this Court have cause to conclude for any reason

that this appeal is not within the purview of § 1253, the Appel-

5

lant prays that this court exercise its power by vacating the

order before this Court “and remand this case to the District

Court so that a fresh order may be entered and a timely appeal

prosecuted to the Court of Appeals.” MTM, Inc. v. Baxley,

supra at 804; see Gonzalez v. Employees Credit Union, supra

at 101; Mitchell v. Donovan, 398 U.S. 427, 431 (1970); Stamler

v. Willis, 393 U.S. 407 (1969); Mengelkoch v. Welfare

Comnrn., 393 U.S. 83, 84 (1968); Utility Comm'n. v. Pennsyl-

vania R. Co., 382 U.S. 281, 282 (1965); Phillips v. United

States, 312 U.S. 246, 260 (1941).

Il. THERE IS A SUBSTANTIAL QUESTION

WARRANTING PLENARY REVIEW.

The Appellant has set forth in his Jurisdictional Statement

his argument as to whether substantial questions exist war-

ranting plenary review and the same need not be reiterated

here. The argument in the Appellees’ motion to dismiss or

affirm dealing with this question of whether substantial ques-

tions are involved in this appeal supports the points brought

out in the Appellant's Jurisdictional Statement rather than de-

tracting from it. Indeed, the Appellees’ argument only serves

to emphasize that the need for plenary review of the action

below is indisputable and the Appellant suggests that summary

reversal of the order appealed from is now in order.

The Appellant has not abandoned the claim that the three-

judge court misapplied the doctrine of comity or abstension

judge court misapplied the doctrine of comity or abstention

discussed in Younger v. Harris, 401 U.S. 37 (1971). The doc-

trine has to do with restraining equity jurisdiction and the

question of whether it should have been invoked by the three-

judge court is still before this Court in the instant appeal even

though the Appellant has not expressly stated the issue in his

jurisdictional statement. The doctrine was one of the reasons

why this Court previously remanded this case to the District

6

Court. Since the doctrine goes to the jurisdiction of the Dis-

trict Court, this Court has the power, if not the duty, on its

own to remand to the District Court with instructions to apply

the doctrine if the District Court was in error for concluding

that the doctrine was not applicable in this case.

Roe v. Norton, 422 U.S. 391 (1975).

CONCLUSION

For the foregoing reasons, the Appellant prays that the

Appellees’ motion to dismiss or affirm be denied.

Respectfully submitted,

M:tcHAEL ANTHONY ARCARI

Assistant Attorney General

90 Brainard Road

Hartford, Connecticut 06114

Tel. 566-7040

Counsel for the Appellant