# Reply Brief — Maher v. Doe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1067%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1977 - **Citation:** 432 U.S. 526 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1067%3A3. Public record. Not legal advice.