Appendix — King v. Smith

Supreme Court brief1968

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"SUPREME COURT OF THE UNTED $1 STATES

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RUBEN K. KING, Et Al’ Appellants,

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or the Middle District of

Northern Division

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| MRS, SYLVESTER SMITH, Et Al, Appellees.

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IN THE

_ SUPREME COURT OF THE UNITED STATES

Ocroser ‘Term, 1967

—

oe NO. 949

{ i iti ak

RUBEN K. KING, Et Al, Appellants,

| | vz a,

MRS. SYLVESTER SMITH, Et Al, Appellees.

On Appeal From the United States District Court

‘For the Middle District of Alabama,

Northern Division °

TABLE OF CONTENTS OF APPENDIX.

re VOLUME I.

Docket Entries ;

FE Ac ipeccsensssisstsbGisosedancsvecseseaiaser

Plaintiffs’ Motion fot a ‘Prelimin a litécesons

Defendants’ Motion OP EE en dvneecesveentanerinvsnce

Order Appointing ‘and Designating the United States as |

Se ene ee ae ree o> le seo onvedvewssosinns 20

vCal tind a treat oie somaaieamaaeas - So Ai hie LOY DE 5 EO

| . Page

‘Defendants’ Answer ..... ee akecasouns MGs kaso dhessaan 21

Writ of Injunction eee eT Torre _ Siac verre prrye coke’ @

; Opinion of Three Judge Court * ieaes iekdebiusedinnweds ) 41

\\s Decree of Three Judge Court ........... weangtics iweenehs - 59

‘.. Order of Supreme Court Justice Hugo L. Black Granting

a rr Pe Oe a ee pe mr es ae 61

Deposition of Ruben K. King— Lat as

GES TR as laf ee ee Pe er 64°

i ee - cVeies tebe sabasesearebedarenee’ 65

I 6 ch ice caved so0v-ecbuecnnssoecaeee 113

ER er ee 114

Deposition of Clara Mae ——,

“cil Vac tintkientckbsnchowdsemwsdeves oven ae

L Direct examination ...... nee Cae \ Laaehiwet vn ae

Cross-examination ...... Cbdbectesneseteesasanl frre 121

Redirect examination .....:........ sttbvsbhesesevebos 121

Deposition of Jacqueline Stancil— / Mere.

- Stipulation ...... EF eS ee Eee eer

Direct examination ............ findnsvsersedeueneuns 126

Deposition of Jeam Johnson— pin eat oe

Stipulation .............. Vickbensakeseeekanes <eeaye 149

Direct examination ....... it kbce edad secbenetaneas .- 149

Depdsitions of Lucy K. “Locklin, Augusta L. Wilkinson,

Katie B. Shaw, Nan C. Murphy, Myrtle 8. — eee

Saunders and Ada Kate Posey—.

ED Seccucnsccres cece eee ccceceecesecccccecs 158°

‘ Proceedings ...... PopccveBocescccecccccccccccescoecy MOO

Lucy K. Locklin— ee ee

Direct ‘examination ............... gecccccccccces 62

Cross-examination™ ..............ssce.e- ‘ee cccccce 175 .

: Redirect eXamination ..............2ceeeeeececee 197 in aes

Augusta L. Wilkinson— ° fa ee x anes

Direct examination ......... srvhikdneee teaeeeke 178

. Cross-examination ..... Ciididdsnadsabedesivadees 190

} Redirect examination .................0- ieeaens 190

PE. s0bsee oo cvncgundisconseescon EER

. Rediréct examination ............ o+eebnenbaabad 191

Recross-examination ........ pbeveerscocsvssecens 192

Redirect examination .................... Pia te aiiniae ae

I, ccc bukéaseabessdbevevesceed 192

Redirect examination ........ pavacéuvencweseada - 193

POUUU EIEIO « ov cc rc ctccecccecccécccccescs -194

Redirect examination ...............:. bcescdece Soe

tlie ites

Lo eens

Katie B. Shaw—

Direct examination ........ .

Cross-examination ...............+. sabinuooeenh - 202

Redirect examination .:............cccccceece aoe ae

Sis caveciedsdessercebesne - 204

Redirect examination ................... herecaxs Ee

Recross-examination ................... Nespeiens ‘206

Nan C. Murphy—

BPUPGOe GRMMNIMOEON .... onc ccccccccccce jnneoreans 207

SR ae ee 213

Redirect examination ....... Fede nedceeeencaanen 213

ne oes cede ebbaenecoseées 215

ee cc cnadoceecscnaces 215

Recross-examination ...:........ TTTTY peovecdooe 215

Redirect examination. ...... bs tdebvocuapocvcesees 216

Recross-examination ........:....... sinonwene ~ 217

Redirect examination .......... cheeaeeekseede at 218

Myrtle S. Preer— 5; 4 ;

Brpeet GmMMMIREOM .. £2. heccncccccccvicccccece 219

Cross-examination grit tt teeeees eubibebokwecenens 224

Blanche Saunders— - =r ; eg.”

Direct examination ............ ha eewaiies aebeund 225

Cross-examination ...................- ietnpneedn 228

’ Redirect examination Mh Abdeid egeehonseew kbs 228

Recross-examfination ....... jabh eu ben dteeobebeen .. 230

: Redirect examination ..... LTT EET eee TTT eee seoee 201

Ada Kate Posey— a

Direct examination ......... Shbhesekessebeeeessa 231

Cross-examination .:......... Sea teseneéan sheen n Se

Redirect examination ...... Natsautancebedaneceks 237

Deposition of Sylvester Smith-— Re:

Uk beacese wives ve WL oot ccc eecccccens 241

Direct examination :......... icankia hakdeeiwwiwkdasacac 242

Cross-examination .................... lamiguialcan cas 243

Redirect examination .................. dis eeeedehean 244

sb be cbs oo 00s bbccd'ndcceacess, 258

Redirect examination .............ccccccccccuoce er

Recross-examination .............. Séeabeneeetuees cen 260

Redirect examination ................0cccce00. eaqgues 261

FE GS Sb owkssccabswssvensoscavccsas 261

MOOGUTOOE GRMMMOTIO ~. ooo vcccccccccccccsuccccene 270

hs con necbcnccvccceneccdoceszcescc 271

Redirect examination ...... piveubenacexte: Lae . 273

Recross-examination ..................... PE ee 274

VOLUME II

Page

ee Exhibits : o

SPE TT Te TT TTT eT re eT ee nkvaneedesesskaenes ee

i . eeesesesece Secor ecceceseseccwiseseeeeeeeeeeeseseeees ; 309

3. ‘Poth ebn eeewis oe 6sebesétebeseneeesbeeks Pococee a es.6 68 ‘B21

De icadbecnssnncebunehadvéd sn buds ba Venvaenesseeeneeus 363

DP KGRbbAR CEE AeDSOAWE ORDO S ERO ROwA SE eeteeEeReeEeesen 478

PEO eee re re eT re re er mrt) a nnrr 483

i, gia penns FiscnsdhdedeTeedscureeensancdeeecbaasceats 485

cen peensarenkecennenesscutuses Sacuudisaveeeweeane 492

MN sR eU Eda pee dab ad Rsd ea Ne bok p eed kee hdes eed eeeeees 294

a scheteaseanwekascaveons Mr ibdnwardaensdpucccetacxs ,501

Me SACO Cad a Sek dodn dbus dedathiueee seewsedsesaet a vusaun 531

EEE, dha tneedkadeenenksskbaulansaweesacndesevudeceenees 561

i téncabernneeénss jbbvesdasesdcacecbbarteveessvassoun - 562

Ds. kde ip wesusnGussbedasaueekeeepoeeneesdeeebaveedces 563

My Stkvadbsedountthedacnsavsesvhsdeasadesesdeuesiacen 564

Me: 0pbsecssebes Henke tasnandeuesescbvinenotssoessecedh 565

a Suseeadqeedusskinkebsneueedendeeussabusenesestoere 567

ME csvibeususdeb obtener kaankedhs vise dads tnedkvcebasnee 569

i axed ckoketaponssbebecedeyeeaenessneeeeuassseercces 578

DN ns kentasévacneevenen cengewhbsenseetGuninesciascuye 581

EL buna sexes evnca basse sabe sderewideneunasdeuacuseace 586

Dh Guncweoss renwsdeh weet erkndseseebecneeesenasadsouls 587

De caved Gocueudiuycewaducaddeved kueusnksesVabendcuaee 706

De bhASKireebsvabesedeeees Nucsenepasedukeseesesdusnens 710

Ka cenvanh bikes hab evens cha bhbn pecs eescamueanens 722

Dy -cvabdabachereusntaee enable devas esessatccesnuedteans 726

Ee rer re ree Pee Pepe Tee reer herr 728

M+ Ssdeoncban pideonntdesncedviepsccccesavescseces js0s oe

Mt kistdcesevseesecdcionsbnewss ons eeneenseneed sa eene? 737

i Scvtalsadvedsversesperescenewsnseascvceseesaabenns 739 -

> ‘naaseeeed \iviseudevevkasengensdtnecinas neneneieias 742

PTT rrr Tor eT Terre Ty TTT re Tr tree 744

D. pgn.ns 595s coadebusecnsawie tube bees Raerehveaseenoset 747

i: HbddewhbnesstiavablesesedeousseWsrssssates sankkeaees 765

EL sb ceneeretendsnebaeteuesesscedendecwretenpveseubese 772

Gh; eensecdnckeddvervecepsagueveves ptundshedsoeebacses pi

. Pik bkaeentuscevescssceqgaececs deed sbcaeeeseceserigeee

chs bapsdsvsncsnececethoendes as jébbdsenceeesuuepes 779

Ge écsecdeanccdnedsesecscnedsencebsateccceveneegeennes 783

) .

APPENDIX.

In the United ‘States District Court for the Middie

District of Alabama, Northern Division. -

‘Mrs. Sylvester Smith, Individually and‘)

on Behalf of Her Minor Children,

Ida Elizabeth Smith, Ernestine

- Smith, Willie Louis Smith and Wil-

lie James Smith and ‘on Behalf of

All Other Mothers of Needy, De-

pendent Children Similarly Situated,

| Plaintiffs,

v6. ,

Ruben K. King, Commissioner of the

State Department of Pensions and

_ Security, State of Alabama; Lurleen

Burns Wallace, Chairman, State

Board of Pensions and Security,

State of -Alabama; James Record,

Mrs. Mary Waite, William M.

Clarke, Temple Coley, Grant Whid-

don, Mrs. Mary Ella Reavis, Mem-

bers of the State Board of Pensions

and Security, State of Alabama; Mrs.

Clinton S. Wilkinson, Sr., Director,

Dallas County Department of Pen-

sions and Security, Individually and

in Their. Official Capacities,

or at Defendants. |

Civil Action.

r - No. 2495-N..

RELEVANT DOCKET ional

1966

Dec. 2--Cempleisit filed.

Dec. 16—Plaintiffs’ -motion for preliminary injunction

_ filed. “ : '

Dec. 22—Defendants’ motion to dismiss filed.

1967

Jan. 4—Order appointing U. S. as amicus. curiae -atid

ie :

Jan. 23—Defendants’ answer ‘filed.

” Nov. 8_Writ of indinatien issued.

Nov. 8—Opinion of three-judge court.

Nov. &—Deeree of three-judge court.

Nov. 29—Order of Associate Justice of the his Court,

Hugo -L: Black, granting stay, filed.

are ae

In the |

United States District Court for the

Middle District of Alabama, Northern Division.

Mrs. Sylvester Smith, Individually )

and on Behalf of Her Minor.

' Children, Ida Elizabeth Smith,-

Ernestine Smith, Willie Louis

‘Smith and Willie James Smith and

on Behalf of All Other Mothers

of Needy, Dependent Children

Similarly Situated, . Plaintiffs,

"versus

Ruben K. King, Commissioner of

the State Department of Pensions

and Security, State of Alabama; 3

George Wallace, Chairman, State | Civil Action.

Board of Pensions and Security, { No. 2495-N.

_ State of Alabama; James Record, |

Mrs. Mary Waite, William M.

Clarke, Temple Coley, Grant »

Whiddon, Mrs. Mary Ella Reaves,

Members of the State Board of

Pensions and Security, State of -

Alabama; Mrs. Clinton S. Wilkin-

_son, Sr., Director, Dallas County | -

Department of Pensions and |

Security; Individually and -in

Their Official Capacities, |

Defendants. | | °

‘COMPLAINT

(for declaratory judgment and injunctive relief y

(Filed Dec. 2, 1966.)

- 1. This is a suit for injunctive relief authorized by —

. Tible 42, US.C., §1983 to be commenced by aad citizen

of the United States or other persons within the jurisdic-

‘tion thereof to redress the deprivation under color of

statute, ordinance, regulation, custom or usage of the

state of rights, privileges and immunities secured by the

‘Constitution and the laws of the United States. The

rights, privileges and immunities sought herein to be re-

dressed are those secured by the equal protection and

due process clauses of ‘the Fourteenth Amendment to the

Constitution of the United States, by the Social Security

Act, 42 U.S.C., §§601-609, and. by §601 of the Civil

’ Rights Act of 1964. This is also a suit for a declaratory

judgment. pursuant to Title 28, U.S.C., §2201 of rights

established by the aforementioned constitutional and ©

statutory provisions. : s

2. This is a proper case for determination by a three- |

judge court pursuant to 28 U.S:C., 2281 since it seeks

an injunction to restrain the Defendant officers of the

State of Alabama from .the enforcement, operation and

_ execution of .the state-wide regulation set forth in the

Alabama Manual for Administration of Public Assistance,

Part I, Chapter Il, Section V (A) (entitled. “Child in-

eligible if There is a Father or ‘Mother Substitute’),

and commonly referred to as the ‘‘substitute father’

regulation (a copy of which is attached hereto as Ex-

hibit A), on the ground of the unconstitutionality of said

regulation under the Constitution of the United States.

3. Jurisdiction is conferred on this Court by 28 U.S.C.,

§1343 (3) and (4) providing for ‘original jurisdiction of

this Court in suits authorized by 42 US.C., §1983; juris-

diction is further conferred on this Court by 28 U.S.C.,

'§§2201 and 2202 relating to declaratory judgments and iw

-28 US.C.,, §§2281 and 2284 providing for a a

Court.

4. Plaintiff Sinker Smithi is an adult Negro citizen

of the United States and Alabama and is the mother of

Plaintiff children, Ia Elizabeth Smith, age fourteen

years; Ernestine Smith, age twelve years; Willie Louis

Smith, age eleven years;: Willie James Smith, age nine

- years. For several years prior to October 1, 1966, Plaintiff |

and her children had been recipients of financial assist--

ance under the Aid to Dependent Children program

(hereafter referred to as ADC) of the State of Alabama,

a public assistance program authorized by Code of Ala...

bama, Title 49, §17 and Title 42, U.S.C., §44601-609. By.

notice dated: October 11, 1966, Plaintiff Smith and her

children were removed retroactive to September 30, 1966

from the list of persons eligible to receive aid, on the

_ ground of the ‘‘substitute father’’ regulation. A‘copy of

said notice is attached hereto as Exhibit B. A few weeks

prior to her termination from ADOC, Plaintiff Smith had

sent a letter to President Johnson complaining of ‘the

- inadequate size of her welfare grant and of other Ala-

bama welfare policies. Through an aide, the President

forwarded the letter ‘to responsible welfare officials.

5. Plaintiffs bring this action on their behalf and on

behalf of all the other-persons similarly situated pursuant

to Rule 23 (a) and (b) (2) of the Federal Rules of Civil

Procedure. The members of the class similarly situated

are needy Negro mothers and dependent Negro children

in the State of Alabama otherwise eligible for ADC in

Alabama whose ADC financial assistance has been termi-

nated or denied on the ground of the aforementioned

“‘substitute father’’ regulation. The members of this class

‘are so numerous as to make joinder impractical; there are

questions of law and fact common, to the class;-the claims

of the representative parties are typical of the claims of

the class; and the representative parties fairly and ade-

quately protect the interests of the class.

6. Defendant George Wallace is Chairman of the State .

Board of Pensions and Security and Defendants James

—

Record, Mary Waite, Williain M. Clarke, Temple Coley,

Grant Whiddon, and Mary Ella Reavis are other-mem-

bers of said Board. Under Code of Alabama, Title 49, §17

(5a and 38) they are responsible, in conference with the

' Commissioner of the State Department of Pensions and -

Security, for the adoption of the policies, rules and regu-

lations of the State Department of Pensions and Security,

including the ‘substitute father’? regulation here com-

plained of.

Defendant Sin K. King i is ‘Commissioner of the State

Department of Pensions and Security and, as noted di-°

vectly above, has statutory responsibility for the adop-

tion of the regulations here complained of. Defendant

King is also responsible, under Code of Alabama, Title

49, §17 (5a and 37 ), for’ all- executive and administrative

duties of said State Department and for interpreting the.

regulation formulated by the State nome of Pensions —

‘and Security. .

Defendant (Mrs.) Clinton S. Wilkinson Sr., Director of

the Dallas County, Department of Pensions and Security, —

. is responsible, under the Terms of Code of Alabama, Title

49,-§17 (9 aud 39), for en i the regulations of the

State Department of Pensio

and Security jin the County

of Dallas. aise

7.(a) At all times hereafter mentioned, Defendants

Wallace, Record, Clarke, Waite, Coley, + ‘Whiddon, Reavis |

and King (and their predecessors in office), in order to

receive federal funds for the ADC program of the State

of Alabama, have been required by the provisions of

42 U‘S.C., §§601-609 to have formulated a ‘‘state plan’’

for ADC consistent with the provisions of the Consti-

tution of the United States and the provisions of 42

U.S.C., §601 et seq.

(b) Said Defendants are also, under the terms of Code

of Alabama, Title 49, §17(7), required to ‘‘act as the

agent of.the federal government . a the administration

of any federal funds granted’ to the state to aid in the

furtherance of any of the functions of the state depart-

ment ...,’” and=t@ otherwise act as the agents of the

federal government in the furtherance of the objectives

of the ADC program.

U.S.C., §601 et seq., constitute the major shate of ADC

grants in the state of Alabama.

(d) Under: the terms of Code of Alabama, Title 49,

" Section 17 (14), defendants aré required to- grant ADC

financial. assistance -

‘fon behalf of any needy ‘child who is a eben

as defined in the Federal Social Security Act .or

amendments thereto who shall comply with’ the ap-

. plicable requirements of this chapter, and who: (a)

Has not sufficient income and resources frgm all

sources to provide a reasonable subsistence com-

patible with decency and health; (b) who meets any

_ one of the following residence requirements—(1) has

>» resided within the state for one year immediately

preceding the application for aid, or (2). was born

within the state within one year immediately. pre-

ceding the application for aid; or whose parent. or

other near relative (as defined in the Federal Social .

Security Act) with whom the child is living has re-

sided in the state for one year immediately preceding

the birth ef said child; (c) has not directly or in- —

directly disposed of or deprived himself of any

property for the purpose of qualifying for the bene-

" fits of this chapter; and (d) is not receiving -any

other type of public assistance for which federal -

matching is available.

Under the terms of 42 USC. 5606 (a) . “dependent

child’’ means:

epee ee hw

—8—

“‘a heedy child (1) who has been deprived of parental

Support or care by reason of the death, continued ,

absence from\ the home, or physical or mental ‘in-

capacity of a parent, and who is living with his,

father, mother, grandfather, grandmother, brother,

* sister, stepfather, stepmother, stepbrother, stepsister,

uncle, aunt, first cousin, nephew, or hiece, in a place

of residence maintained .by one or more of such rela.

tives as his or their own home, -and (2) who is (A)

' under the age of eighteen, or {B) under the age of

twenty-one and (as determined by the State in ac-

cordance with standards prescribed by the Secretary),

a student ‘regularly attending a school, eollege, or .

_ University, its equivalent, or regularly attending a

course of vocational or technical training designed

to fit him for gainful employment;’’

8. (a) In all respects, except for the ‘substitute father’’

regulation promulgated and enforced by Defendants,

Plaintiffs and the members of their class are eligible for

and entitled to ADC financial assistance.

. ‘ v e 7

(b) Plaintiff children Ida, Ernestine and Willie Louis,

have not received parental ‘support or care from their -

father, who has been dead since 1955, Plaintiff child

Willie James has not received parental support or éare

from his father, who has been continuously absent for

many years. All the children are living in the home of

their mother, Plaintiff Sylvester Smith, and all are. under

the age of eighteen, are Alabama residents for more than —

one year, are not receiving ‘any other type of public .

assistance, and have not directly or indirectly ‘disposed

of property for the purpose of qualifying ‘ ADC assigt-

ance. The sole income of Plaintiff Smith a eer children

is in the sum of sixteen dollars ($16). per. week paid to

Plaintiff Smith for working as a waitress six days a

week from 3:00 a. m. to 12:30 p. m. Said income is be-

_ low the financial standards ‘promulgated by Defendants as

| nc:

necessary for a subsistence compatible with decency and

health. . | ee

9. (a) According to information give to Plaintiff Smith

_ by one Mrs. Stancil, an employee agent of Defendants NF

and ‘‘counselor4 of Defendants for Plaintiff Smith, the @

“substitute father’? of the Smith children is one Mr. —

Willie E. Williams. Plaintiff Smith was told by Mrs.

_ Stancil on or about October 11, 1966, that ‘she and ‘her

children were no longer eligible for ADC aid because Mr.

Williams was the ‘‘substitute father’? and ‘that Mrs.

Smith should ‘look to Mr. Wiliams for support. There-

after, by notice dated October 11, 1966 and signed by

Defendant Wilkinson, Plaintiffs’ ADC aid was terminated

on the ground of the ‘‘substitute father’ regulation.

(See Exhibit B attached hereto.) *

_ (b) Mr. Willie E. Williams has nine children of his.

own; he lives with his family, including his wife and |

eight of their nine cHildren’ who are dependent upon him

for support. He earns barely enough for the support -of

.~ his own children through work as a heavy laborer. Mr.

Williams‘is not now, nor was he at the time of the termi-

nation of Plaintiff Smith’s ADC benefits, willing or able

to support the Smith family. Mr. Williams is the father

of none of the children of Plaintiff Smith , |

all of her life; in the last fiye years, he has visited- her

. home with some frequency. He does not live in her home.

_ Plaintiff Sylvester Smith is not’ willing to discuss whether

she engages in a sexual relationship with Mr. Williams.

~—

10. Upon information and belief, the Defendants have

applied their ‘‘substitute. parent”? regulations so as to

disqualify from ADC benefits only or virtually only

Negro mothers and. children and not white mothers and

children. , oes ?

SAB. RIG e QR

a am

‘

11, By promulgating, ‘adopting and enforcing. the “<gub-

_ stitute father’*’regulation, and on ground of said regula-

tion terminating and denying ADC financial assistance to

Plaintiff Smith, her minor childrert, and all other mem-

bers of -her class, Defendants acting under color: of State

law, have unlawfully deprived Plaintiff Smith and the

other members of her class of ADC financial assistance,

and their constitutional rights to equaP protection and

due process of law, and their rights under 42 US. C.,

§§601-609 and Code of Alabama, | age 49, $17, in the

“following manner;

A. Defendants have deprived Plaintiff’s needy and de-

pendent children, and the needy and dependent children

of all others similarly situated, of the equal protection .

of the ADC law by classifying’ them as ineligible for

ADC on a thoroughly arbitrary and irrational basis, i.e.,

the alleged sexual relation of their mother with a man

who is not their father, who owes no. ‘duty of support, is .

giving no support, who is not married to their mother and

who is not living with them.

B. Defendants have deprived Plaintiff’s needy wih de-

pendent children, and the needy and dependent children

of all others similarly situated, of due process ‘of law in

that Defendants have denied them needed ADO benefits

to which they are otherwise entitled by arbitratily im-

posing the label ‘‘substitute father’’, on persons who are

not their fathers, owe no duty of fatherhood to them, and

are performing no. duty of ‘Zathary/to them.

C. Defendants have deprived Plaintiff’s needy and de-

3 pendent children, and the “needy and dependent children

of all others similarly situated, of due process of law in

‘that Defendants have denied them needed ADC benefits

on the basis of a vague and uncertain- ‘regulation which

‘enables Defendants -to pick arid. choose on an arbitrary

and whimsical 7 those to whom ADC benefits shall

shes ttn ni bn Ci thei Amc 4h ery ey ees it ashe aith: with EBAY RCD Ty cri ng»

be granted. The vagueness of the regulation permits De-

fendants to terminate aid, if they_choos® in the event a °

recipient complains to federal authorities of their other

policies, as Plaintiff Smith did. ” xt.

D. Defendants have deprived Plaintiff’s needy and: de-.

pendent children, and the needy. gnd dependent children

of all others similarly situated of the equal protection of

the laws in that the Defendants haveeppliod the. ‘‘sub-

stitute father’’ regulation in such a manner as to dis-

. qualify Negro applicants and. regipients but not white

applicants and recipients.

KE. Defendants have deprived Plaintiff Smith and other

mothers similarly situated of their right to privacy under

the due process clause of the Fourteenth Amendment by,

inter ala, placing upon Plaintiff Smith and other mothers,

under the terms of the ‘‘substitute father’’ regulation, the’

burden of proving that they are not engaging in a sefual

‘Telation with a man through such means as ‘‘references’?

_ from their ‘‘ministers, neighbors, groctrs’’.

F. Defendants, through the ‘‘substitute father’’ regula-

tion, have deprived the needy dependent children of

Plaintiff Smith and other mothers similarly situated of .

the ADC benefits to which they are ciearly entitled under

the express provisions of 42 U.S.C., §§601-609 and Code

of Alabama, Title 49, $17. :.

12. Plaintiffs And the class which they represent have

suffered damage to their health and well-being, the health

and well-being of their children and their family life,

and will continue to suffer severe and irreparable injury

because of the aforesaid regulation complained: of herein

until said regulation is declared illegal and unconstitu-

tional and is enjoined by this Court. No adequate ad-

ministrative remedy or adequate remedy at law is avail-

able to plaintiffs. ee. . :

‘

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AAAS eons SRI RRR es:

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—_— 12 —_

Wherefore, plaintiffs on behalf of Rieniee and all

others similarly situated respectfully pray:

1. That a three-judge*Court be convened to determine

this controversy pursuant to 28 U.S.C., §2281;

2. That this Court enter a declaratory judgment pur-

suant to 28 U.S.C. $2201, declaring ‘‘the substitute

“father”? regulation of the Alabama State Board of Pen-

sions and Security, specifically Part I, Chapter II, Sub-

division V (A) of the Alabama Manual of Public As-

sistance Administration, void and of no effect insofar as

it denies eligibility to Plaintiffs and members of their

class on the ground that they have a ‘‘substitute father’’

as therein defined; and further declaring that said regu-

lation is contrary to the intent of Congress in: enacting the

Aid for Families of Dependent Children provisions of the

Social Security. Act (42 U.S.C., §§601-609) and the intent

of the legislature of Alabama in enacting the Aid to De-

pendent Children program in the Code of Alabama, Title

49, Section 17; and further declaring that said regulation

is repugnant to the equal protection and due process

’ clauses of the Fourteenth Amendment to the Constitution

of the United States; and further declaring that Defend-

ants are required to consider the eligibility for Aid to De-

pendent Children of Plaintiffs and all others similarly

situated without reference to said ‘‘substitute father’’

regulation. |

3. That this Court enter a permanent injunction re-

straining each defendant, their successors in office, agents

and employees from enforcing the ‘‘substitute father’’

regulation contained in Part I, Chapter 2, Sub-Division

_ V(A) of the Manual of Public Assistance Administration,

and ordering them to consider eligibility for Aid to De-

pendent Children of Plaintiffs and all others similarly

situated without regard to said regulation, on the ground

that said regulation violates the intent of Congress in en- -

“ee

— 19

acting the Aid to Dependent Children program contained

in 42 U.S.C. §§601-609, in intent of the legislature of Ala-

bama in enacting Title 49, §17 of the Code of Alabama,

and on the ground that said regulation is repugnant to the

equal protection and due process clauses of the’Fourteenth

Amendment to the Constitution of the United States.

4. That pending the final deteymination: by this Court

of this|suit, this-Court enter a preliminary injunction re-

storing Plaintiff Smith and her minor children to the Aid

and,restraining Defendants from denying eligibility to all

others similarly situated on the ground of the aforesaid

“‘substitute father’’ regulation.

5, That this Court allow Plaintiffs their costs herein and

grant them and all others similarly situated such further,

other, additional or alternative relief as may appear to

this Cofrt just and appropriate,

Respectfully submitted,

/s/ DONALD A. JELINEK,

DONALD A. JELINEK,

Lawyers Constitutional Defense

| : ’ Committee,

= 81% Franklin Street, .

or Selma, Alabama 36701,

ALVIN J. BRONSTEIN, ©

- Lawyers Constitutional Defense

Committee, .

603; North Farish Street,

__,” Jackson, Mississippi 39202,

| : Attorneys for Plaintiffs.’

EDWARD V. SPARER, |

HOWARD THORKELSON,

409 West-117th Street,

‘New York, New York 10027,

*~ Of Counsel.

to Dependent Children program of the State of Alabama ~

e .

" State of Alabama,

County of Dallas.

I, Sylvester Smith, of lawful age, first. duly sworn upon

oath, depose and say: :

. That I am the Plaintiff i in the action henies

That I have read the annexed Complaint and know the

. ‘contents thereof; and

That the matters set out in said Complaint are true and

correct as therein stated to the best of my _— in-

formation and belief. ©

/s/ SYLVESTER SMITH,

SYLVESTER SMITH,

1544 Curtis Street, |

_ Selma, Alabama.

‘Sworn to and subscribed before me this. 23rd ‘day of

_November, 1966.

JAMES C. KIMBROUGH,

' Notary Public.

' My Commission a ‘Mézch 3, 1968.

Exhibit A—The ‘‘Substitute Father” Regulation.

Pt. I, Ch. Il, Subd. V (A) of the Alabama Mannai of _

Public Assistance Administration:

V. Child Ineligible If There Is a Father or. Mother

Substitute.

A. Father Substitute: An able-bodied man, mar- -

ried or single, is considered a substitute father of

all the children’ of the applicant/recipient mother

living in her home, whether they are his or not, if:

es a ag

a ae

(1) he’ lives in the home with the child’s natural or

adoptive mother for the purpase of cohabitation; or

{2) though not living in the home regularly, he visits

frequently for the purpose of cohabiting with the

child’s natural or adoptive mother; or (3) he does

_ not frequent the home but cohabits with the child’s.

natural or -adoptive: ‘mother elsewhere. Pregnancy or

a baby six months or under is prima facie evidence

. of a substitute father as indicated above..

' When there appears to be a substitute father, dis-

approve an application or terminate aid unless the

mother establishes that one of the following situa-

tions exists: (1) she and/or the substitute. father

meets the criteria of disability as described under

‘Physical or Mental Incapacity’; (2) the substitute

father is no longer living in the home or visiting the

home for the purpose of cohabiting with her; or (3)

- thé relationship is broken between the mother and a

man who has not been living-in the ‘home or fre-

quenting the home: ° :

Evidence showing. that the -relationship has been.

discontinued includes proof such as: ‘the father has

. Married another woman; or he is in a public institu-

tion; or, if he has been living in the home, he is now

living at another address; or a notarized statement _

by the mother and substitute father that they have

discontinued their relationship. This evidence must

be corroborated by at least two. acceptable referenées |

in a position to know. Examples of acceptable refer-

ences are: law-enforcement officials; ministers; neigh-

. bors; grocers. If needed, the mother will be given 30

. days to present her evidence before ler application

is disapproved or her case closed unless additional:

time is needed. If additional time is needed, another

30 days may be allowed. In no instance shall more

than 60 days be allowed. Although the burden of

a PR

proof rests with the mother, the worker will assist

in any way possible to help the mother establish

that she has broken a relationship. Also, before re-

jecting an application or closing a case, the worker

will talk with the mother about reasons for. the

agency’s action and about her right to reapply at any

time that she does break the relationship. If the

family is otherwise eligible, the case should be re-

certified for aid immediately.

Exhibit B.

Dallas County Department of Pensions and. ne

Aelma, Alabama

Termination of Award

Name: Sylvester’ Smith GN: 22,999...

Address: 1544 Curtain Street Program: ADC

Selma, Alabama ‘ |

You have been removed from the list of persons eligible

to receive aid effective September 30, 1966 because:

Substitute. father policy. |

If you want other information from the county depart-

ment, we shall be glad to talk with you.

10-11-66 |

Date

Approved:

(Illegible), -Director

—17 —

MOTION Tor A PRELIMINARY INJUNCTION.

xf Caption Omitted.)

‘(Filed Dec. 16, 1966.)

Please take notice that upon the Complaint herein,

Plaintiffs will move the three-judge Court to be convened

in this case at a date and’ time to be determined by the

Court for an Order granting Plaintiffs a Preliminary

Injunction )

restoring Plaintiff SMITH ‘and her sninor children to

- the Aid to Dependent Children program of the State

of Alabama and restraining Defendants from denying

eligibility to all others similarly situated on the

ground of the aforesaid —— father’’ regula--

tion,

and for such other and further-relief as may seem just

and proper.

Dated: December 16, 1966.

/s/ CHARLES S. CONLEY,

315 South Bainbridge Street,

Montgomery, Alabama,

DONALD A. JELINEK,

_ Lawyers Constitutional Defense

= | Committee, .

31% Franklin a

Selma, Albama,

_- ALVIN J. BRONSTEIN,

' Lawyers Constitutional Defense

Committee,

603 North Farish Street,

Jackson, Mississippi, .

Attorneys for Plaintiffs.

—_—

- Certificate of Service.

‘I hereby certify that on the 16th day of December,

1966, a copy of the foregoing Motion for a Preliminary

Injunction was mailed to each of the following Defend-

ants: Ruben K. King, Commissioner of the State Depart-

ment of Pensions and Security; George Wallace, Chair-

man of the State Board of Pensions and Security; James

Record, Mrs. Mary Waite, William M. Clarke, Temple

Coley, Grant Whiddon, Mrs. Mary Ella Reavis, Members ”’

of the State Board of Pensions and Security; and Mrs.

Clinton S. Wilkinson, Sr., Director of the Dallas County

Department of Pensions and Security. ners

/s/ _—- S. CONLEY,

; S. CONLEY,

315 South Bainbridge Street,

Montgomefy, Alabama,

_. Attorney for Plaintiffs.

MOTION TO DISMISS.

(Caption Omitted.) gy

‘(Filed Dec. 22, 1966.)

Defendants, separately and. ferecalin, move the Coutt.

as aired

1. To dismiss the action because the complaint fails

to state a claim against defendants _ which relief

can be granted;

2. To dismiss the action on , ground that the plain-

tiffs have failed to join indispensable parties. The Sec-

retary of the Department of Health, Education, and Wel-”

. fare and the Commissioner of Welfare of the Department

of Health, Education, and Welfare have not been named

as defendants. They are the officials of the United States

—19—

government -who have authority for ‘the promulgation of

rules and regulations pursuant to the public assistance

titles of the Social Security Act under which the State

of Alabama has developed its statutory authority and

-rules and —- to provide for public assistance in

Alabama.

al RICHMOND M. FLOWERS,

RICHMOND M.: FLOWERS,

Attorney General,

/3/ MARY LEE STAPP, :

MRS. MARY LEE STAPP,

' Assistant Attorney General, |

. /s/ CAROL F. MILLER,

MRS. CAROL F. MILLER,

Assistant Attorney General,

Attorneys for Defendants,

. Administrative Building,

64 North Union Street,

"Montgomery, Alabama,

Certificate of Mailing.

Montgomery, Alabama, ~

DecembO@r 22, 1966.

I hereby certify that on December 22, 1966, I served

a copy of the foregoing Motion upon Honorable Charles

S. Conley, 530 South Union: Street, Montgomery, Alabama,

Attorney for -plaintiffs, by depositing a copy thereof in

the United States mail, postage prepaid, envelope ad-

dregsed to said attorney at his address set forth herein- -

above, which address is the last address of the poe

known to me.

| -- CAROL F. MILLER,

| - Attorney for Defendants.

ORDER APPOINTING AND DESIGNATING

THE UNITED STATES AS AMICUS

CURIAE AND AS PARTY.

(Caption omitted.)

(Filed Jan. 4, 1967.)

Upon consideration of the complaint in the above-styled

case and the relief sought, it appears that the issues in-

volved are common and general, and this Court is of the

opinion that the due and ‘proper administration of justice

requires that the public interests should be represented in

these proceedings. To this end, this Court is of the opinion

that it is now appropriate and necessary that the United

States should ‘be designated to appear and participate in

- all proceedings in this action before this Court and to ac-

cord Court the benefit of its views and recommenda-

tions,“with the right to submit pleadings, evidence, argu-

ments, briefs, and to participate actively as a party in

every phase of said proceedings, including the right to

initiate such further proceedings that may be necessary

and appropriate. Faubus v. United States (8th Cir. 1958),

254 F. 2d 797, cert. denied 358 U.S. 829; Bush, et -al. v.

Orleans Parish School Board, et al., 188 F. Supp. 916, aff’d.

365 U.S. 569; Bush, et al. v. viens Parish School Board,

et al., 190 F. Supp. 861, aff’d 366 U.S. 212; United States

v. Barnett (5th Cir. 1962), 330 F. 2d 369; Lee v. Macon

County Board of Education, 231 F. Supp. 743 (1963);

Miles, et al. v. Dickson, et al., Civil Action No. 2326-N, MD

Ala., June 15, 1966, ... F. Sei. . 5 Alabama NAACP

State Conference of Branches, et re v. , Genres C. Wallace,

et al:, Civil Action No. 9457- N, MD Ala.

‘ In accordance with the foregoing and for wal cause, it

is the Order, Judgment and Decree of this Court that the

United States of America be and-is hereby designated to

appear and participate in all proceedings in this action

eae:

before this Court as amicus curiae and as a party thereto.

It is the further Order of this Court that the Attorney

General of the United States, and such attorneys in the

United States Department of Justice as he may. designate,

be and he is hereby appointed to appear and participate

in behalf of the United States in this action.

Done, this the 4th day of January, 1967.

FRANK W. JOHNSON, JR.,

Chief Judge.

ANSWER.

* (Caption omitted:)

(Filed Jan. 23, 1967.) °

The complaint fails to state a claim against defendants

or any of them upon which relief can be granted.

Plaintiffs have failed to exhaust their available admin-

istrative remedies. The administrative remedies which are

available to plaintiffs are provided for in Title 49, §17(18),

Code of Alabama 1940, recompiled 1958, and the rules and

regulations of the State Department of Pensions and

Security promulgated thereunder and set out in Manual

for Administration of Public Assistance, Part I, pages

I-3, V-4-9, and Administrative Letter No. 2103 dated Jan-

_uary 24, 1966. Copies of these rules and regulations are

attached hereto and made a part hereof as Exhibit A.

1. In answer to Paragraph 1 of the complaint, defend-

ants state that the complaint as a whole does not establish

—_—

— 22 —_—

a right in the plaintiff for a suit for injunctive relief au-

thorized by Title 42, U.S.C., Section 1983 or Title 28,

U.S.C., Section 2201, in that there is no showing of an tm-

reasonable classification or any other. denial of equal pro-

tection as Paragraph 1 sets out as rights, privileges, and

immunities sought to be redressed.

2. In answer to Paragraph 2 of the complaint, defend-

ants deny that this is a proper CASE, for determination pur-

suant to 28 U.S.C. 2201 in that the complaint as a whole

fails to set out a right in the plagntiff or in any other

mothers similarly situated to secure injunctive relief from

the defendant officers of the State of Alabama as set out

in Paragraph 2.

3. For answer to Paragraph 3 of the complaint, defend-

ants deny that jurisdiction is conferred on this Court by

virtue of the code sections cited in that the complaint as

a whole fails to establish such right.

4, Datuadaihe admit the first four sentences of Para-

‘graph 4 of the complaint. Defendants are without knowl-

edge or information sufficient to form a belief as to the

truth of the allegations contained in the remainder of

‘Paragraph 4 of the complaint. Defendants further allege

that not one of them has any knowledge of nor-has any

one of them received in any way notice of the plaintiff’s

‘alleged letter to the President of the United States re-

ferred to in, Paragraph 4 of the complaint. —

5. For answer to Paragraph 5 of the complaint, defend-

ants aver that plaintiffs are not bringing this action on

behalf of all persons similarly situated pursuant to the

Federal rules of civil procedure in that they are purport-

ing to represent only needy Negro mothers and dependent

‘Negro children in a class action based on a rule which is

applicable to all needy mothers and needy dependent chil-

dren without regard to race. While defendants in no way

(

discriminate in,the policy plaintiffs are complaining of,

plaintiffs clearly are seeking to represent only Negro mem-

bers of the class which they seek to represent. This con-

stitutes only one segment of the population of the class

described in the policy as a whole and to which the policy,

by state and Federal law, is applicable. In the first sen-

tence of Paragraph 5 of the complaint plaintiffs purport

¥ to bring the action on the behalf ‘‘of all other persons

similarly. situated.’’ However, plaintiffs in the next sen-

tence of Paragraph 5 define ‘‘the class similarly situated’’

as ‘‘needy Negro mothers and dependent Negro children.”’ _

By law and policy the class involved in the policy, of de-

fendants would represent that class of person who is de-

scribed in the regulation regardless of race. If this policy

affects a larger number of persons in any one ethnic group,

it is not because of any inherent discrimination in the

policy or the promulgation of the policy or in the -ap-

"plication of the policy. - |

6. Defendants admit the allegations contained in Para-

graph 6 of the complaint, except in the last paragraph.

‘ Defendant Wilkinson is not solely responsible for enforc-

ing all of the regulations of the State Department of

Pensions and Security in Dallas County.

7. In answer to Paragraph 7 of the complaint, defend-

ants admit the allegations contained in subsections a, b,

- and c. In answer to subsection d, defendants say that

the provisions of law cited are not the sole governing pro-

visions of law- applicable to the’ granting or refusing

to grant Aid to Dependent Children financial assistance.

Defendants could not make payments to any grantee rela-

tive on behalf of any dependent child unless the provisions

of Title 49, §17 (15), Code of Alabama 1940, recompiled

1958, are complied with.

8. Defendants allege that they are without ities

or information sufficient to form a belief as to the truth of

. —

.the allegations contained in Paragraph 8 of the com-

“plaint. et; . : :

9. Defendants deny the allegations in the first two sen-

tehces of Paragraph 9 (a) and allege that the determina-

tion about the applicability of the substitute father policy *

_ was made upon information given ‘to Mrs. Stancil by plain-

tiff Smith in October 1966, whick information was in sub-

Stance that plaintiff Smith had engaged in a marital rela-

tionship with Mr. Willie E. Williams for a period of six —

years and was continuing to do so. The substitute father

policy was explained by Mrs. Stancil to Mrs. Smith. De-

fendants allege that Mrs. Stancil explained that under

the agency policy cohabitation meant having sexual rela-

tionship with a man, that plaintiff understood this and .

stated that she was having sexual relationships with Mr. -

Willie E. Williams. Mrs. Stancil also explained that if at

any point Mrs. Smith chose to break off this relationship,

she, Mrs. Stancil, would, in aecordance with agency policy,

assist Mrs. Smith in establishing that this relationship

had been broken.

9(b). Defendants allege that they are without knowl-

edge or information sufficient to form a belief as to the

truth of the allegations contained in Paragraph 9 (b) of _

the complaint. . : ¥ ;

9(c). Defendants allege that they are without knowl-

edge or information sufficient to form a belief as to the

truth of the allegation in paragraph 3 (ct) of the complaint

that ‘‘Mr. Williams has known plaintiff Smith virtually all

her life’’; defendants admit that Mr. Williams has visited

in plaintiff Smith’s home frequently during at least the

last five years, as alleged in the last clause of the first

sentence of Paragraph 9 (c) of the complaint, or more.

Defendants allege that they are without knowledge or in-

formation sufficient to form a belief as to the truth of the

allegations contained in the remainder of Paragraph 9 (c)

%,-

_— =

of the complaint. Defendants allege, however, that plain-

tiff Sylvester Smith has willingly discussed and freely ad-

mitted to workers in the Dallas County Department of

Pensions and Security a continuing sexual ne

with Mr. Williams,

‘10. Defendants deny each and every allegation contained

in Paragraph 10 of the complaint.

11, Defendants deny each and evéry allegation contained

in Paragraph 11, including subparagraphs A, B, CG, D, E,

and F thereunder, of the complaint.

12. Defendants deny each and every allegation contained

‘in Paragraph 12 of the complaint.

13. Defendants deny each and every material allegation

of the complaint not herein specifically admitted. —

Defendants, pray ‘to be hence dismissed with their rea-

sonable costs,

/s/ MacDONALD GALLION, .

MacDONALD GALLION,

Attorney General,

/s/ MARY LEE STAPP,

MRS. MARY LEE STAPP,

Assistant Attorney General,

‘ /s/ CAROL F. MILLER,

MRS. CAROL F. MILLER,

Assistant Attorney General,

64 North Union Street, ©

' Montgomery, Alabama,

Attorneys for Defendants.

— 26 —

Montgomery, Alabama

January 23, 1967.

I hereby certify that on January 23, 1967, I served a

Copy of the foregoing Answer upon Honorable Charles S.

Conley, 315 South Bainbridge Street, Montgomery, Ala- }

_bama, Attorney for plaintiffs, by depositing a copy thereof

in the United States mail, postage prepaid, envelope ad-

dressed to -said attorney at his address set. forth herein-

above, which address is the last address of the attorney _

known to.me. — . . |

CAROL F. MILLER,

Attorney for Defendants. .

cr et | Certificate of Mailing:

T hereby certify that on January 23,-1967, I mailed a

copy of the foregoing Answer to Honorable Ramsey Clark,

Attorney General of the United States, Washington, D. C.,

and a copy of said Answer to Honorable Ben Hardeman, -

United States Attorney, P. O. Box 197, Montgomery, Ala-

_bama, each with postage prepaid. ire

. . CAROL F. MILLER, |

Attorney for Defendants.

a pa

EXHIBIT A.

» Administrative

Letter No. 2103

January 24, 1966

State of Alabama

Department of Pensions and Security —

Montgomery

To: anes Directors of Pensions and Security

Subject: Appeals and Fair Hearings

. We have recently. received a revised section of the Fed-

eral.Handbook on Appeals and Fair Hearings. In the

_ main, our present policies relating to appeals are in line

with the Federal material. We therefore, are not. revis-

ing our Public Assistance Manual, Part I, on Appeals and

Fair Hearings at this time. Your special attention is

called, however, to the following procedures.

At the time of application and at the time of any agency

action affecting an applicant’s or recipient’s claim to aid, -

he must be given a written statement of the right to a

hearing and the method by which a hearing may be ob-

tained. The manual provides that a copy of the eligibility

statement, which contains information about appeals, will

be given each person at time of application. Effective

immediately, a copy of the appropriate eligibility’ state-

ment will be enclosed with each award authorization,

change of status affecting the payment, termination of

award. and denial of aid mailed to each applicant or. re-

cipient. Record the date each time a copy. of the eligi-

bility statement. is given to or mailed to the client. This

must be done by an entry on the Face Sheet under item IX.

Provision is made in the new Federal material that the

claimant may employ a lawyer of his choice ‘to represent

pb cmt

isl eae aM WRN a caf Salar A Me

him in an appeal. Under Federal policies it is also per-

migsive for states to pay the fee for such legal. service |

with participation in the cost by the Federal Government.

It has long been possible under our policies for claimants

to employ lawyers to represent them in appeals and some

claimants. have exercised this right. We will continue .

such policy. It will not be possible for us, at this time,

_to provide for the cost of such legal’service. We will, how-

ever, accept appeals which are made for applicants or

- recipients of aid by their duly authorized lawyers.

Please see that the appropriate members of your staff

are informed of the contents of this letter.

Cordially yours,

| /s/ RUBEN K. KING,

RUBEN K. KING,

Commissioner. -

‘May, 1966.

"Ala, Manual, Fart I Tom at 4 1-3

Do not count. as an application a referral made for

a person withouf his knowledge and consent, except

when application was made by a legal representative,

legal guardian, or one of the persons specified with

whom a mentally handicapped minor lives. —

Do not take applications on persons who ‘make

inquiries only. When it appears that a person con-

cerned in an inquiry or a referral may become an

applicant, make a master index card and post it on the

back as ‘‘Inquiry”’ or ‘‘Referral”, =~

Clear every application with the. master index card

file on the date it is received. If no previous record is

found, make a master index card and file it. The date

of the request is the official date of application. Make

a control card on every application immediately upon

receipt of the application. Handle and report all

applications according to financial and statistical .

procedures in Chapter Four and instructions for pre-

paring the monthly statistical report relating to aiahil

cations'in Part II of the manual.

Handle a reapplication in‘the same way as a new

application. .

Ill. Application Interview.

Interviews are usually held in the office, in an

intake center, or in the home. When an applicant

is too ill or too handicapped to be interviewed, inter-

view his legal representative, legal guardian, or the

person directly responsible for his care.

A. The first mterview is an important part of

the process of determining eligibility and the

need for other services. Follow the ee

given below:

i Explain ° eligibility sequiseinente, ‘@ per-

son’s right to a fair hearing, and the pro-“

cedure for requesting a hearing. Give each

applicant a copy of the eligibility require-

ments if he wishes one at the‘time of applica-

tion; otherwise, tell him that a copy will be

mailed to him along with the decision on

on his application. (Refer to Administrative

Letter No. 2103, January 24, 1966; relating

_to appeals and fair hearings. )

2. Explain methods of near eligi-

bility.

3. Explain the need for making contacte

with relatives and references. }

4, Explain the use of documentary and

other records for verifying factual data in

establishing eligibility. —

—0—

5. Secure from the applicant information

as follows:

a. A clear shateinnid: of how he man-

aged in the past.

November 1, 1962:

Ala, Manual, Part.I —_ VA

Section II

Hearings

General Requirements |

" ‘itles I, IV, X and XIV of the Social Security Act pro-

vide for fair hearings for applicants and recipients of

~OAP, MAA, AB, ADC, and APTD. Alabama law pro-

vides for fair hearings in OAP, MAA, AB, ADO, and —

APTD. By State policy, the same fair hearing —

applies to TA.

At the time of ieaiiiatine. give each applicant a writ-

_. ten statement of the right to a hearing and the method by

which a hearing may be obtained. For this purpose, use

* the summary eligibility statements, which include the

hearing aieamed

Keep» a copy of the rules and peer on Leenioge |

posted in the county department in a conveniert. place

for everyone to see.

Organization and Conduct of Hearings

“The Committee on Hearings of the State Department

is is composed of the following:

1. The assistant director of the iim of Public

Assistance, Chairman; : :

2. The director of the Bureau of Field Service;

‘—sl—

_ 3. A field representative from a district other than

- the one in which the request for a hearing is made,

or another State staff member with social work

‘background and with administrative or supervisory —

responsibilities, or. the legal advisor.

The Committee acts for the State Departmént iayptan-

ning and conducting hearings. It makes its recommenda-

tions in writing to the Commissioner, who..has- responsi-

bility for the final decision on each hearing. In APTD

cases, the State Review Team will assist the Committee on

Hearings in making recommendations to the Commis-

sioner on the ‘eligibility — of permanent — total

disability:

Any member of the Committee who has not taken part

in the action under consideration may. serve as hearing

officer and conduct the hearing. If a member has taken

part in the action by assisting the county department in

the review or making some indépendent investigation,

that member may attend the hearing but can neither con-.

duct it nor participate in the final recommendations. 3

The chairman of the Committee on a is re-

sponsible for handling hearing procedures, including cor-

respondence’ and clearance with field representatives,

— departments, and eemeanta.

Ala, Manual, Part I | i, vs. °,

The hihi officer represents the Alabama State De-

partment of Pensions and Security and has fuil control |

over a hearing, although other State staff members may

be present. The duties of the hearing officer are as follows:

(1) to: direct the hearing; (2) to explain the conduct of

the hearing, the type record which will be made of it,

the claimant’s right. to review it in the county office at

ally reasonable time, and the manner in which the decision

“

ee 5 ,

Danie 65

iN Aa RING Dak nian eS oa ge Ad alin Ae alae

— 32 —

will be made and given to the claimant; (3) to hear testi-

mony; (4) to examine witnesses and otherwise receive

evidence having a direct bearing on the point or points

at issue; and (5) to exclude from the hearing material

unrelated to the point(s) at issue. Questions directed to

the hearing officer must be limited to those concerned with

the explanation of the hearing procedure.

‘There is only one party to a hearing—the claimant him-

self. He is not opposed at the hearing by either the

county or State departments. While neither of these de-

partments is supported by an advocate, staff or board ~

members of either department may attend and may serve

as witnesses if they have factual knowledge of the case.

‘The hearing’ officer may call and examinp witnesses on

his own, but he must then give the claimant or his. repre-

sentative an opportunity to cross-examine these witnesses.

The hearing officer may also cross-examine ) enannee in-

troduced by the claimant.

The role of the hearing officer is that of an impartial

tribunal, and in examining witnesses and in the general

conduct of the hearing, he must maintain an attitude of

impartiality. The. only objective in examining witnesses

_ shall be to attempt to arrive at the truth concerning the

issues involved.

The claimant must. be present at the hearing unless

‘the Commissioner or Committee on Hearings excuses him

for a specific reason. He may present his case himself at

the hearing or may designate one person as his official

representative. .He may also have members of his family

and other persons present, -who may serve as witnesses.

Staff and Board members of the State and county de-

partments may also serve as witnesses. - (The hearing

officer will consider a person qualified to be a witness only

when the person has factual data about the point(s) at

issue.) /

— a

In general, the hearing consists of the following proce- —

dures.

Statement of Issue—The hearing officer will state the

issue(s) as set forth in the claimant’s appeal. When

the request for a hearing is based on a decision as to

eligibility, the hearing officer will make a statement for,

the record of the hearing with respect to points of eligi-

bility which have previously been satisfactorily estab-

lished. The hearing officer will then define the issue(s)

under consideration in the hearing. The claimant or his

representative will be asked whether he accepts the ‘state-

ment of the issue(s). If not, the claimant or his repre-

sentative may correct or modify the statement. The

issue(s), however, must have a bearing upon the claim-

ant’s eligibility or amount of payment.

Ala. Manual, Part I ° | V4

Period of Testimony—The hearing officer will hear tes-

timony about the defined’ issue(s) from the claimant, —

his designated representative, and qualified ‘witnesses. All

persons giving testimony must. confine their remarks to

factual information about the issue(s) relating to the

establishment of eligibility or ‘payment in the particular

ease. The hearing officer, the claimant, or his. designated

representative may direct questions to witnesses, as indi-

cated, provided the questions relate to the defined issues.

Written statements of evidence from all sources.and other

—_ may also be presented and examined.

- During the period of testimony, the hearing officer will.

not hear complaints. or arguments about Federal and

State laws or policies.

Period of Arguments—The hearing officer will allow a

reasonable time (usually not more than 30. minutes) for

the claimant or his representativé to summarize their

factual data and to present any arguments and complaints

they wish about the point(s) under consideration in the

particular case. This may a refuting oral or written

testimony. :

Conclusion of Hearing—The hearing officer will close

the hearing wlien satisfied that all available facts relating

_ to the issues involved in the hearing have been given.

Rules and Regulations

1. Each ‘person requesting review of his . case has free

choice of whether such review shall be handled ° through

informal complaint and adjustment procedures or through

a hearing. If he chooses a hearing, it cannot be delayed

or cancelled without his consent because of a review by:

the local office.

2. Any person ‘dissatisfied with the county department’s

_ action or failure to act on his claim to aid has a — to

request a hearing. He-may do so when:

a. His application ‘is denied or is not acted upon

within one month, =, |

b. His hay ai is discontinued.

c. He is dissatisfied with the amount of payment.

- 4d. He-is otherwise dissatisfied i in regard to his claim

to aid.

A request for ‘a hensind Minced on action by the -county

department must be filed within 90 days of the action

_ questioned.

_ 3. A request for a hearing must be filed in writing and

signed by the applicant/recipient, his legal guardian, a

grantee relative in ADC, or by a parent or brother or

sister of a mentally handicapped minor under 21 (APTD

and AB). It must give the reason(s) for dissatisfaction,

the date on ;

Ala. Manual, Part I | V7

which the cause of dissatisfaction occurred, and the claim-

ant’s correct mailing address. It may be filed with either

the county department or the State Department. The one

receiving the request must notify the other within five

_ days. 7 7 px...

4, Within five days after the State Department receives

(from the claimant or the county department) the written

request for a hearing, the State Department sends the

claimant in writing the following information:

a. The procedure at the hearing; | oo

b. The claimant’s option to present his case or be

represented by an authorized person; —

c. The claimant’s right to present. written satin

and testimony and to bring to the manne members of,

his family and other persons;

d. The hearing will be held at:a place convenient

* to him, either in the State office or elsewhere. He will

be notified in advance of the time, date, and place.

The claimant will be advised of possible further investiga-

tion by the county department. A copy of this informa-

tion will also be sent to the county department.

et The chairman of the Committee on Hearings refers

the request for a hearing to. the field representative or

another member of the State staff. Within 20 days after *

the request is received, this staff member will review the

case with the county department and will make or ask

the county director to make any further investigation

necessary. The claimant will also be: requested by either

the State or county department to furnish ecaiaiaed in-

% formation which he can readily secure.

6. If the total findings in the case show that the county .

department should take further action, such action must.

be taken at once. When the original reason for the hear-

ing has been removed by action taken by the county de-

‘partment, the State Department will write the claimant a

letter, stating this to be the case and asking if he wishes

to withdraw hjs request for a hearing. This shall not

prohibit his continuing with the hearing, if he so desires.’

Any decision to withdraw must be his own. The with-

drawal should be in writing and should state the reason

for withdrawal. It may be sent or given to either the

State \or county department. The one getting it will.

notify the other within five days.

7. A request for a hearing will be considered aban d

if: (a) neither the claimant nor his.representative appears

at the time and place of hearing; or (b) a time and place

for a hearing have been set but the claimant asks for a

delay and does not wish to.set another date; and -(c).

within 30 days after the mailing of ’an inquiry as to

whether he wishes any further action taken on his request

for a hearing, no reply is received by either the local or

State agency.

Ala. Manual, PartI ; | V-8 °Y’

. 8. Wher no satisfactory adjustment is made, the county

department shall submit a summary of the case to the

chairman of the Committee on Hearings within 30 days

after the request for a hearing is received in. the State ©

Department. -This summary shall be a part of the written

testimony for examination at the hearing. It shall include

only factual data relating directly to the issue under re-

view. In addition, the State staff member who reviéwed |

the ¢ase shall submit a written report, together with .

recommendations. This report shall become a part of the

written testimony at the hearing. —

_ 9. Upon receipt of the necessary information, the shite.

man of the Committee on Hearings sets a date, time, and

a pe

place for the hearing. This date shall be within 20 days

after such information is secured unless more time is

needed for a reasonable cause. The State Department

shall notify the claimant, the county department, and the

field representative at least 10 days before the hearing.

The county director will advise the chairman of the

county Board of the date, time, and place of the hearing..

10. If it becomes evident during the hearing that the

: issue actually involved is different from the one on which

the hearing was réquested, the hearing, at the discretion

of the hearing officer, shall be conducted on the new is- |

sue. All evidence constituting the basis for decision must

be presented at the hearing or et a continuation thereof.

11. The hearing may be adjourned from day to day or

to a designated date, at the discretion of the hearing of-

ficer, when reasonably necessary to give full opportunity

to obtain and present all evidence concerning the points

at issue in the particular case. The hearing may be con-

cluded when the hearing officer is satisfied that all per-

tinent information bearing upon the a has been

introduced and examined.

12. The hearing, officer shall decide on ‘the type record

to be made of the hearing. It may be: (a) a complete,

verbatim transcription from shorthand notes;.or (b)

verbatim machine recording; or (c) a summary report

containing the main facts, including the oral and written

testimony, questions, and rebuttal. The type record chosen

shall become a part of the complete record. The claimant

shall be told of his right to review the record of the hear-

ing at any reasonable time. If he does.not wish to review’

the record, it will not be necessary to transoribe ‘machine

recordings, but these recordings will be ‘available to the

Committee on Hearings and the: Commissioner and will be

. — yetained as a permanent part ‘of the files in the State De-

_ partment. If the record is made of the hearing other than -

—38—

by machine recording or if the claimant does state his »

desire to review the record, the procedure in the para-

graph below will be used. |

If a machine recording is used, either the. State or

county department will have it transcribed in triplicate.

If a verbatim transcription is made from shorthand notes,

the county department shall,have this typed up in. tripli-

cate immediately following tHe hearing: Any record typed

by the county department shall be forwarded in triplicate

at once to the hearing officer in the State Department for

review and editing. The hearing officer shall return one

_ . copy: of the edited record to the county department to’

become

Ala. Manual, Part I es vV-9

a part of its permanent files. This copy will be made

available for inspéction by the claimant or his representa-

tive at any reasonable time. The remaining copies will be

submitted to the Committee on Hearings for review. ‘If it

is decided that additional facts are needed, the Committee

on Hearings will have the Lene sed re-opened ‘in order to

secure them.

13. The Committee on Hearings will make recommenda-

tions to the Commissioner as soon as possible after the

close of the hearing. The Commissioner makes the final

decision based only on the oral and written evidence, tes-

‘timony, and exhibits introduced at the hearing. Not more

than three weeks shall elapse between the: close of the

hearing and the final decision. The decision must be in

writing, signed by the Commissioner, and shall set forth -

the issue(s), the principal and relevant facts brought out

at the hearing, the pertinent ‘nrovisions in law and agency

policy, and the reasoning that led to the decision. Copies

of the decision. shall be sent to the claimant and to the

county department immediately following the action of

— ‘an

the Commissioner. The decision shall be final and shall -

be binding upon the claimant and the county department.

14. Upon receiving a copy of the decision, the county

department shall take immediate steps to see that any

necessary action is taken. If the decision requires action

by the county department, the county director shall send

_ @ written report to the Commissioner stating what has

been done. Continuing supervisory ay is ned

gated to the field ——

15. A decision on a fair hearing is binding on the

county department and is not invalidated by county ac-

tion so long as the conditions under which the decision

was made remain the same. However, this does not pre-

clude the county department from modifying the award

or making other’ changes to meet changed conditions in

the’ claimant’s situation, in law, or in policy. |

16. When new evidence indicates that a valid. decision

- has not been made, the Cqmmittee on Hearings has the

authority to decide to re-open a case for re-hearing, either

_ through its own motion or upon request of the claimant.

—0—

In the United States District Court for the Middle

District of Alabama, Northern Division.

Mrs. Sylvester Smith, Individually and >

on Behalf of Her Minor Children,

Ida Elizabeth Smith, Ernestine

‘ Smith, Willie Louis Smith and Wil-

lie James Smith and on Behalf of

All Other Mothers of Needy, De- |.

pendent Children Similarly Situated,

| ' - Plaintiffs,

iad

_Buben K. King, Commissioner of the

State Department of Pensions and

Security, State of Alabama; Lurleen + Civil Action.

Burns Wallace, Chairman, State ‘ No. 2495-N.

Board of Pesshons and Security, 6

State of Alabama; James Record, |‘

Mrs. Mary Waite, William M. Clarke,

Temple Coley, Grant Whiddon, Mrs.

Mary Ella: Reavis, Members of the

State Board of Pensions and Secu-

rity, State of Alabama; Mrs. Clin-

ton 8. Wilkinson, Sr., Director, Dal-

las County Department of Pensions

- and. Security, Individually and in

Their Official Capacities,

a Defendants. |

WRIT OF INJUNCTION.

To the Above-Named Defendants and Each of Them:

Take Notice that you and each of you, your agents,

employees and. successors, and all persons in active con-

cert and participation with you, who shall receive notice

of this order,.be and you are hereby Enjoined and Re-

— a. ays

. strained as more particularly set out im the opinion and

the decree of this Court made and entered in this cause

on this date, copies of which are herewith served upon

you. This writ of injunction is issued in accordance with

_ said opinion and decree. . ar

Witness my hand and the seal of this Court on this the

8th day of November, 1967, at Montgomery, Alabama.

| RB. C. DODSON,

Clerk of the United States District Court —

for the Middle District of Alabama,

-- By: JANE P. GORDON,

Deputy Clerk.

OPINION.

(Caption omitted.) —

(Filed Nov. 8, 1967.) |

Before Godbold, Circuit Judge, and Johnson and Pittdhan,

District Judges. :

Per Curiam:

This is an action for declaratory and injunctive relief

filed pursuant ‘to 42 U:S.C., § 1983.1 The ‘‘rights, priv-

ileges, or immunities’’ sought to.be redressed are those se-

cured by the Equal Protection and Due Process Clauses of

1 “§-1983. Civil action for deprivation of rights

“Every person who, under color of any statute, ordinance, .regu-

lation, custom, or usage, of any State or. Territory, subjects, or

causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress. R. S. § 1979.”

_ ;

the Fourteenth Amendment to the Constitution of - the

United States and by the Social Security Act, 42 U.S.C.,

§§ 601-609. The declaratory judgment aspect of the action

is pursuant to 28 US.C., § 2201.

Plaintiff Sylvester Smith, a citizen of the United States, °

_ the State of Alabama and the County of Dallas, and the f.

mother 6f plaintiffs Ida Elizabeth Smith, aged 14; Ernes-

tine Smith,-aged 12; Willie :Louis Smith, aged 11, and

Willie Sind Smith, aged 9, brings this action in her own

behalf, in behalf of said minor children and, pursuant to

Rule 23(a) and (b) (2) of the Federal Rules of Civil Pro-

cedure, in behalf of all other persons similarly situated.

The defendants are the chairman, members and officials

of the’ Alabama State Board. of Peniions and Security, re-

sponsible, in conference with the Commissioner, under the

law of Alabama for the adoption of policies, rules and:

regulations of the Alabama State Department of Pensions

and Security. Code of Alabama, Title 49, §17. The Com-

missioner of the Alabama Department of Pensions and .

Security ‘has a. statutory responsibility for the adoption .

of the regulations designed to effect the policy and for —

exercising the executive and administrative duties of ‘the

Alabama State Department of Pensions and Security. Code

of Alabama, Title 49, §17: The defendant Mrs. Clinton S.

Wilkinson, Sr., is Director of the Dallas County ‘ Depart-

ment of Pensions and Security’ and is responsible under

the law of Alabama (Title 49, § 17) for enforcing the poli-

cies and regulations of the Alabama State Department of

Pensions and Security i in the County of Dallas.

Since the plaintiffs seek injunctive relief rextraining the

defendant officers of the State of Alabama from the en-

forcement, operation and execution of a statewide regula-

‘tion set forth in the Alabama Manual for Administration

. of Public Assistance, Part I, Chapter II, Section VI, .Par.:

Vy (entitled “Child Ineligible if There Is a Father or ©

ee ee

Mother Substitute’) and commogly referred to as the _

‘‘substitute father’’ regulation,?.on the ground of the un-

constitutionality of said regulation when. measured by

the requirements of the Constitution of the United States,

a three-judge court was convened, pursuant to 28 U. S. C.,

2 “V. Child Ineligible if There Is_a Father or Mother Substitute

“A. Father Substitute: An able-bodied man, married or sin-

gle, is considered a substitute father of all the children of the

applicant/recipient mother living in her home, whether they ~

are his or not, if:,(1) he lives in the home with the child’s

-natural or adoptive mother for the purpose of cohabitation;

6r (2) though not living in the home regularly, he visits fre-

quently for the purpose of cohabiting with the child’s natural

or adoptive mother; or (3) he does not frequent the home but.

cohabits with the child’s natural or adoptive mother elsewhere.

Pregnancy or a baby six months or under’ is prima facie evi-

dence of a substitute father as indicated above: ees

“When there appears to be a substitute father, disapprove

an application or terminate aid unless the mother establishes

that one of ‘the following situations exists: '(1)-she and/or

- the substitute father miéets the -criteria of disability as de

scribed under ‘Physical or Mental Intapacity’; (2) the sub-

stitute father is no longer living in the home or visiting the

home for the purpose of cohabiting with her; or (3) the rela-

tionship js broken between the mother and a man who has not.

been living in the home-or frequenting the home.

“Evidence showing that the relationship has been discon-

. tinued includes proof such as: the father has marriéd another

woman; or he is-in a public institution; or, if he has been

living in‘the home, he is now living at another address; or a

notarized statement by the mother and substitute father that

they have discontinued their relationship. This evidence must

be corroborated by at least two acceptable references in a

position to know. Examples of acceptable- references are: law-

enforcement officials; ministers; neighbors ; grocers. If needed,

the mother will-be given 30 days to present her evidence be-

fore her application is disapproved or her case closed inless -

additional time is needed. If additional. time is needed, an-

other 30 days may. be allowed. In no instance shall more than

60 days be allowed. Although the burden of proof rests with

the mother, the worker will assist in any way- possible to help

the mother establish that she has broken a relationship. Also,

--before- rejécting an application or ‘closing a case, the worker

will talk with the’ mother about reasons for the agency’s ac-

tion and about her right to reapply at any time that she does

break the relationship» If the family is otherwise eligible, the

case should be recertified for aid immediately.” bie:

§ 2281, for hearing and determining this action. Jurisdic-

tion is conferred on saad court by 28 ati § 1343(3) and’

(4).

IL.

_ By stipulation of the parties made and filed with the

Clerk of this Court, the action is submitted on depositions,

numerous documents and — | and the briefs and .

sacacmeal of the parties. |

_ For several years. prior to October 1, 1966, plaintiff Syl-

vester Smith and her children had been recipients of

- financial assistance under the Aid to Dependent Children

- program of the State of Alabama, a public assistance pro-

gram authorized by the Code of Alabama, Title 49, §17

‘and 42 U.S.C., $§ 601-609. By notice dated October 11,

1966, plaintiff Smith and her children were removed, re-

troactively to September 30, 1966, from the list of persons

eligible to receive such:° ‘aid; this ‘action was taken by the

Dallas County, Alabama, welfare authorities pursuant to

the ‘‘substitute father’’ regulation. In all respects, ex- |

cept for the ‘‘substitute father’? regulation promulgated —

and enforced by the defendants, plaintiffs. and: the mem-'

bers of their class are eligible for and entitled to receive

financial assistance under the Aid to Dependent Children

program.

The defendants, in order to receive federal funds for

the Aid to Dependent Children program conducted for the

State of Alabama, have been required by the provisions

of 42 U.S.C.,°§§ 601-609 to formulate a ‘‘State Plan’ for

aid to dependent children consistent with the provisions

of the Constitution of the United States and the provisions

of 42 U.S.C., § 601 et seq. Under the terms of the Code

of Alabama, Title 49, 4 17(7), the defendants are also re-

quired to ‘‘Act as the agent of the federal government

. in the administration of any federal funds granted to

unintlicen

2: @

the state to aid in the furtherance of any of the functions

of the state department .. .’’ and otherwise to act as the

agents of the federal government-in the furtherance of the

objectives of the’ Aid ‘to Dependent Children program.

With this arrangement, federal funds are granted under

the provisions of 42 U.S.C., § 601 et seq., and these funds

constitute the major share of Aid to Dependent Children .

grants in the State of Alabama.® , ae

Under the terms of 42 U.S.C., $606(a), a ‘‘dependent

child’’ is defined as: . Ss

_ **, . . a needy child (1) who has been deprived of

parental support or care by reason of the death, con-

. .+ tinued absence from the-home, or physical or meptal. -

incapacity of a parent, and who is living with his

father, mother, grandfather, ‘grandmother, brother,

sister,.stepfather, stepmother, stepbrother, stepsister,

uncle, aunt, first cousin, nephew, or niece, in a place

of residence maintained by one or more of such rela-,

tives as his or their own home, and (2) who is (A)

under the age of eighteen or (B) under the age of

twenty-one and (as determined by. the Staté in ac-

cordance with standards prescribed by the Secretary)

~.° 8 Alabama requires defendants to. provide Aid to Dependent

Children financial assistance “on behalf of any needy child who.

is a dependent child as defined in the Federal Social Security Act

or amendments theréto-who shall comply- with the applicable re-

quirements of this chapter, and who: (a) Has not sufficient income

and resources from 4ll sources to provide a reasonable subsistence .

compatible with decency and health; (b) who- meets any one of

the following residence requirements—(1) Has resided within the’

state for one year immediately preceding the application for aid, or

(2) was born within the state within one year immediately preced-

ing the application for aid, or whose parent or other near relative

(as defined in the Federal Social Security Act) with whom the

child is living has resided in the state for one fear immediately

preceding the birth of said child; (c) has not directly or indirectly

disposed’ of or deprived himself of any property for the purpose

of qualifying for the benefits of this chapter; and (d) is not re-

ceiving any other type of public assistance for which federal match-

ing is available. . . .”.Code of Alabama, Title 49,°§ 17 (14). -

a student regularly attending a school, college, or

university, its equivalent, or regularly attending a

course of vocational or technical training oamgnes to

fit him for gainful employment;”’

Three of the plaintiff children have not since 1955 re-

ceived parental support or care from their father, who

- has been dead since that year. The fourth plaintiff child |

has not for several years received parental support or care

from his father, who has been continuously absent for

many years. All the ‘plaintiff children are living in the

home of their mother, plaintiff Sylvester Smith, and all

are under the age of 18 and are not receiving any other

type of public assistance.. The sole income of plaintiff —

Smith and her children is the sum otf $16 per week, which

sum represents wages paid to her for working as a wait-.

ress; said income is below the financial standards promul-

pares by the defendants as‘ necessary for a subsistence’

compatible with decency and health. In October 1966,

Sylvester Smith was advised by an employee agent of the

defendants that the ‘‘substitute father’’ of the Smith chil-

dren ‘was Willie E. Williams; that she and her children

were no longer eligible for Aid to Dependent Children

financial: agsistance because Mr. Williams was the ‘‘sub-

stitute father,’ and that Mrs. Smith and_'the children

should look to Mr. Williams for financial support. There-_ -

after, the Aid to Dependent Children financial assistance

was formally terminated through the use of the ‘‘substi-

tute father’’ regulation. The evidence reflects that Willie

E. Williams has nine children of his own and that he lives

with his family, including his wife and eight of their nine

children, who are dependent on him’ for support. Wi

E. Williams is not now, nor was hé at the time wine

termination of benefits to the plaintiffs, willing or able to,

- gupport. the Smith children. Willie E. Williams is ‘the

. father of none*6f the children of plaintiff Sylvester Smith

and does not live in the Smith home. While the evidence

on this point is conflicting, it reflects with reasonable cet-

tainty that Dallas County, Alabama caseworker Mrs. Jac-

quelyn Stancil received a report that Willie E. Williams

was periodically visiting in the home of Sylvester Smith ©

and that from time to time Willie E. Williams and Syl-

_ vester Smith were engaging in sexual activity. The length

or frequency of Willie’ E. Williams’ visits with Sylvester

Smith does not appear. Sylvester Smith failed to submit

‘‘evidence showing that the relationship’’ had been discon-

tinued.

Ii. me

Some discussion of the federal-state welfare relation-

ship, particularly the negotiation concerning the promul- -

gation of policies such as are now under consideration,

provides some pertinent historical background. In Janu-

ary 1961, the Secretary of Healt, Education and Welfare

—after.a hearing on a plan thpt had been adopted and

promulgated by the State of Louisiana which was very

similar to the rule now under. consideration—stated what

_later became known as the ‘‘Flemming Ruling’’:* |

‘*I. have concluded that when a needy child who

- otherwise fits within the Aid to Dependent Children

program of the State is denied the funds that are

admittedly needed to provide the basic essentials of

life itself, because of the behavior of his’ parent or

_ other .relative, the State plan imposes a coridition of

eligibility that bears no just relationship to the Aid .

to Dependent Children pré am. I therefore believe

that this Department should inform the State agencies

administering Aid to Dependent Children plans that

4 Notice of this ruling was given to all “State Agencies Admin-

istering Approved Public Assistance Plans,” including the Alabama

Department of Pensions and Security, on January 17; 1961 in ~

State Letter No. 452, Bureau of Public Assistance, Sogial Security

Administration, Department of Health, Edycation- and Welfare,

page 1.

ore

ake

eligibility conditions with the effect described above

-are not compatible with entitlement for continued

Federal grants.’’

The United States Commissioner of Social Security, fol-

lowing the ‘‘Flemming ee, issued a statement to the-

effect: Pe

“A State plan. for aid to dependent children may

‘not impose-an eligibility condition that woul@ deny

assistance with respect to a needy child on the basis

that the home conditions in which the child lives are

unsuitable, while the child continues to reside in the

_ home. Assistance will therefore be continued during ©

the time efforts are being made either to improve the

home conditions or to make arrangements for the

child elsewhere.’’ |

It was announced that the United States Department of

Health, Education and Welfare’s reasons for rejecting

guch policies were that:®

“It is of great basiaeteicle that State agencies

should be concerned about the effects on children of

‘the environment in which they are living and that

services be.provided which will be directed toward

_affording the children, maximum protection and

i strengthening their family life. Whenever there is a

question of the suitability of the home for the child’s

upbringing, steps should be taken to correct the situa-

tion or, in the alternative, to arrange for other ap-

propriate care of the*child. It is completely incon-

sistent, howéver, to declare a horne unsuitable for a

child to receive assistance and at the same time per-

ae mit him to remain in the same home exposed to the

- same: environment. 7.

5 Tbid., p. 2.

61d pee 2

—#—

Even before the Ninninian Ruling” and as early as

April 1956, the then Alabama Commissioner of Welfare

and the federal authorities corresponded with some fre-

quency in an effort to determine whether the Alabama

policy was in conformity with federal requirements inso-

far as that policy related to ‘‘suitable family’? homes, and

in April 1959 the United States Department of Health,

Education and -Welfare by letter indicated certain sub- ©

stantial defects in legislation that was being proposed for

the State of Alabama at that time:

*‘Section 2 of the proposed legislation defines a

‘suitable home’ as one which provides a-‘stable en-.

vironment’ and lists criteria te be applied to the

determination gf a ‘suitable home’ and a ‘stable en-

vironment’. It appears under this definition that the

_ birth status of the child of a non-marital, but stable, °

union would not affect eligibility if the home was _

determined suitable. However, one of the criteria

listed—‘has continued to have illegitimate children’

raises a question as to its meaning: and intent. If,

regardless the fact that the home provided a ‘stable

environmen#, the children were to be denied ADC

because all the children were illegitimate, or bechuse

a number of them were illegitimate, it would raise

a question of reasonable classification.’’

> ° * * ££ © © &@ &

“Section 3 raises a number of questions as to its

meaning and its consistency with Section 2. Can

‘illicit relationships’ be interpreted as not including

a ‘stable environment’, i. e., would a child of a

‘stable union’ born after the receipt of ADC be re-

garded as illegitimate?

‘Tf interpreted so that parents endeteteion a sta-

le relationship (nor marital) and providing a suit-

able home for the children receiving ADC because

of incapacity of one parent will be removed from ADC

if and when another child is born, it would raise a

question. The termination of assistance would be due

entirely to the birth of an illegitimate child rather

than to any change in. the home environment that had

been considered stable up to that point.”’

In May 1959 a new suitable home policy was submitted

to the Department of Health, Education and Welfare.

After review by that department, it was declar€d ‘‘unsuit-

able,”’ and then later, in August 1959, still another suit-

able home policy was sent to the federal authorities for

approval, with the same results. This negotiating con-

tinued, and in June 1961 the federal authorities replied

_ to an Alabama submission as follows:

‘‘Since HB 613 appears to contemplate denial of ~

assistance to the children who are permitted - to re-

main in their homes after finding that the home is

unsuitable it is inconsistent with Title IV of Social

Seeurity Act as amended by P. L. 87-31. Farther-

more, finding of unsuitability based solely on birth

status of child is ‘also inconsistent with Title IV.’’

Still later—and over two years after the ‘‘Flemming

. Ruling”’ —the federal authorities, by letter dated June 12,

1963, advised the welfare authorities for the State of

. Alabama that the ‘‘suitable home’? policy bills then being

submitted to the Alabama Legislature

‘«.. . appear to deny ‘assistance to a needy child

because he is found living in a home considered to be

unsuitable. Since the proposed legislation provides

for denial of assistance under the AFDC program

while the child remains in the. home without provid-

ing for other ‘adequate care and assistance for such,

child,’ it cannot be considered to be consistent with

ine Social Security Act.”

; The evidence in this case vellneta that tenmnodintaly after

’ his. appointment in January of 1963, Ruben K. -King,

4 - .

x ; Sy ;

gr | ‘ ——_ 51 aaa | s .

; present’ Commissioner of the Alabama State Department

of Pensions and Security, commenced a complete study of

the Aid to Dependent Children program ‘in the State of

_ Alabama; this study led to the adoption and promulgation

of the’ ‘‘substitute parent’? policy now under ~onsidera-.

tion.” Par: , : : .

The ‘‘substitute father’’ regulation presently under con-

sideration by this Court is substantially the same as the

regulation first submitted to the Department of Health,

Education and Welfare in September 1964 by Commis-

sioner King and his organization. Upon receiving the

Alabama ‘‘substitute father’’ regulation, the Atlanta Re-

‘gional Director for the Department of Health, Education

and Welfare, by letter dated August 31, 1964, responded

by stating: Pe nea ae oaN |

1 While the plaintiffs placed considerable emphasis upon facts

strongly indicating that the “substitute father” regulation was de-

signed to discriminate and has the effect of discriminating against

Negroes, by reason of the facts presented, this case does not rest

upon racial considerations and therefore the decision should not rest

upon such considerations. On the contrary, this decision should be

and will be designed to enure to the benefit of all needy children

’ regardless of their race or color. The Equal Protection Clause is

‘not restricted in its application to the protection of the rights of -

Negroes. It-is more far-reaching, protecting. the rights of any identi-

fiable class. See, e. g., the opinion of another panel of this Court,

White v. Crook, 251 F. Supp, 401, 408-09 (M. D. Ala. 1966).

‘In this connection, the Alabama Commissioner, Mr. King, testi-

fied that’ since June 1964, wlien the “substitute father” regulation

was promulgated, the Alabama Aid to Dependent Children rolls —

have been reduced. by 16,000 children. Gommissioner King’s testi-

mony on this point was as follows: ’

““Q. Can you tell us the approximate number of recipients

under the child eligible rule?

A. Do you want it prior to the substitute parent poNty?

Q. Prior to and subsequent to. -

A. In June of 1964, there .were 22,373 cases.in Aid to De-

pendent Children. In June of 1964, there were 92,124 re-

cipients: of these, 72,764 were children. In January of 1967,

there were 71,228 teal number of pe Teg the ADC

program; of which 56,822 were children.” .

‘*We have reviewed Administrative Letter No. 1919

which amended, effective July 7, 1964, the approved

Alabama AFDC plan. This Administrative Letter

purports to amend your policies on deprivation of

parental support or care, with the specifically ‘stated

purpose of restricting the AFDC* caseload. This

amendment goes far beyond your presently approved

pian in that it results in ineligibility .of, all children

living in a home with a mother; if she cohabits with

a man who is not her husband, or is illegitimately

pregnant, or has given birth to an illegitimate child

within the preceding six months, irrespective of

whether the man has any family relationship with

the mother and the child or children. ;

‘This policy raises a serious question with Section

404(b) of the Social Security Act and State Letter

No. 452 by denying aid ‘with respect to a child be-

cause of the conditions in the home in which the child

resides’. ‘Under the identified Federal law and policy

a State may not impose an eligibility condition that

would deny assistance with respect to a needy child.

on the basis of behavior of the mother or other un-

suitable conditions in the home so long as the child

continues to reside in the home. The provisions of

Administrative Letter No. 1919 seem clearly to be

out of conformity with such law and policy.

‘‘Other provisions of the po ief imposing the bur-

den on the mother with respect to proof of identity

of .the father or his whereabouts appear to. be so un-

_ reasonable as to bring into question their acceptability

under Federal policy. Eligibility may not be condi--

tioned upon requirements which go beyend the par-

ent’s ability to meet. _ |

‘The ‘Regional office is unable to accept Adminis-

trative Letter No. 1919 for incorporation into your ap- -

proved AFDC plan. We would suggest, therefore, that

ead

—53—-*

you rescind this letter and reinstate the cases that

have: been closed under this policy.”’ _

Considerable correspondence ensued between the Ala-

bama and the federal authorities concerning this ‘‘substi-

tute father’’ regulation; however, this correspondence was

to no avail, and the approval of the Department of Health,

Education and Welfare to such policy was never obtained.

In this connection, the evidence reflects that the Alabama

‘regulation (now amended in minor details) presently in

effect has not eliminated the Seemed objection-

able features of its predecessors.

4 ‘

N eats to

As noted earlier, Aid to-Dependent Children financial

assistance is a statutery entitlement under both the laws

_ of Alabama and the federal Social Security Act, and where

the child meets the statutory eligibility requirements he —

has a right to receive financial benefits under the program..

It is clear that Alabama, having undertaken to cooperate

with the federal government in providing an Aid to De- .

pendent Children program and having accepted federal

financial assistance for that purpose, is not now free to

bestow the benefits of the program upon some needy chil-.

dren and arbitrarily to deny them to others. There can-

not be any picking and choosing of the mothers and chil-

dren who will be’ aided if it is done in am irrational or in

ah arbitrary manner. Some children cannot be classified as -

eligible and others ineligible ‘without a reasonable basis

for distinguishing one class, from the other; classifications

may only be created which are rationally related to the

purpose of the federal and Alabama Aid to Dependent

Children statutes. These are some o “the basic require-

ments ‘of the Equal Protection fae a the Fourteenth

Amendment to the Constitution of the United States.

These basic principles were stated as early as 1896 in

Yi .

RS ae ee eee, tes Oe

SSN POI OD COREE AE La + Me

2 ; —- P

Gulf, Colorado ond Santa Fe Railway Comerny v. Ellis,

165 U.S. 150, 155, 17 S. Ct. 255, 41 L. Ed. 666:>

“‘The attempted classification . .. .- must always

‘rest upon some difference which hone a reasonable

“and just relation to the act in respect to which the

elassification is proposed, and can never be made arbi-

. trarily and’ without any such basis.’’>

‘The Supreme Court continued by. pointing out ‘that “arbi-

trary selection can never be justified by calling it classi-- -

fication.’ ’? 165 U.S. at 159, This doctrine of constitutional .

' Jaw has developed to the extent. that its application may

be stated as ‘‘rules.’’ Those rules were reiterated in Morey

-v. Doud, 354 U.S. 457, 463-64, 17 8. Ct. 1344,. 1 L. Ed. 2d

1485 (1957). | ——*

“‘The rules for testing a discrimination have been

summarized as follows:

- “7. Fhe equal protection clause of the Fourteenth

Amendment does not take from the State the power _

to classify i in the adoption of police laws, but admits

of the exercise of a wide scope of discretion in that

regard, and avoids what is done only when it is: with:

out any reasonable basis and therefore is purely arbi-

trary. 2. A classification having. some reasonable basis

does not offend against that clause merely because it

_- is not made with mathematical nicety or because in

practice it results in some inequality. 3. When the

_ classification in such a law is called: in question, if any

state of facts reasonably can be ‘conceived that would

sustain it, the existence of that state of facts at the

time the law was enacted must be assumed. 4. One

who assails. the classification in such a law must carry »

the burden of showing that it does not re¥t upon any

_ reasonable basis, but is essentially arbitrary.’ Lindsley .

v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79.”’

For illustrations of the breadth pf factual situations in _

which these rules. apply, see also Rinaldi v. Yeager, 384

U.S. 305, 308, 309, 86 S. Ct. 1497, 16 L* Ed. 2d 577 (1966) ;

McLaughlin v. Florida, 379 U.S. 184, 85 S. Ct. 283, 13 L.

Ed. 2d 222 (1964) and cases cited, 379 U.S. at 190, 191;

Hernandez v. Texas, 347 U.S. 475, 478, 14 .s. Ct. 667, 98

L. Ed. 866 (1954). ee

This Court is clear to the conclusion that Alabama’s

“substitute father’’ regulation creates precisely .the type

of classification prohibited by the Equal Protection Clause.

.The Alabama regulation directs that Aid to Dependent

Children -finaricial assistance not, ‘be given to a class of.

children who meet the statutory eligibility requirements

and thgt this financial assistance be denied for an arbitrary

reasou—the alleged sexual behavior of the mother; such a

reason is wholly unrelated to any purpose of the Aid to

Dependent Children statutes. The ‘basic purpose of the

program (Title IV of the Social Security Act, 42 U.S.C.,

§ 601 et seq.) and the Alabama statute (Code of Alabama,

Title 49, $17) is to provide financial assistance to needy |

children who are deprived of the support and care of one |

of their parents. As a matter of fact, the Alab statute

' requires the defendants to furnish Aid to Dependent Chil--

dren financial assistance ‘‘on behalf of any needy child

who is a dependent child as defined in the Federal Social

Security Act.’’ As to this aspect of the program, the fed-

eral act defines a ‘‘dependent child’’’ as one who is ‘‘de-

prived of parental support or care by reason of the death,

continued absence from the home; or physical ‘or mental

incapacity of a parent.’? Despite this clear legislative pur-.

pose of both the federal and Alabama statutes, the ‘‘sub-

stitute father’’ regulation directs that aid shall not be

given to a particular class of needy dependent children -

who are deprived of ,parental support or care as a result of

-. the death, or continuois absence of their father from the

home, and who in. all other t¢spects meet the statutory

eligibility requirements. In this regard, the Alabama regu-

lation sets forth three situations in which needy dependent

. Se -

NRE ALARA A q

fi He a a A Ail AN cat Had ig pais

2 ‘

tas ue

Sar

children, otherwise eligible, are to be denied this financial

assistance:

‘¢(1) When a man (not married to the mother and

. not the father of the children) lives in the home ‘for

_ the purpose of cohabitation’ “with the mother; bi

“*(2) When a man -(not married to the moth and

not the father of the- children) visits the home ‘for ~

_“(3) When a man (not married to the mother and

not the father of the children) ‘cohabits’ with the

mother ‘elsewhere’, i.e., outside the home.’’

It is quite clear, therefore, that the Alabama regulation is

directed at a dependent child or. children whose mother

has non-marital sexual relations with a man or men—or,

more broadly, whose mother’s conduct i immoral, accord-

ing to the Alabama authorities—and is not in anywise

directed to either the support or care of the children by

the mother or by ‘the statutorily ‘created “<substitute -

father.’’ This simply means that, through the promulga-

tion of this ‘‘substitute father’’ regulation, the State of |

Alabama is looking’ primarily to the moral conduct of the

mother and not to the-economic factors. The State quite

candidly admits in its brief that:

‘Nevertheless, Defendants maintain that the state

does not have to close its eyes to the way illegitimate

children get born—that the recognition of the eco-

nomic utilization of ‘substitute parents’ is not a iola-

tion of the Fleming Ruling.”

* The expressed interest of the State of Alabama in not

desiring to underwrite financially or approve situations

which are generally considered immoral is a laudable one;

‘the State’s argument that this regulation is ‘‘a genuine

attempt to place the responsibility for taking care of ©

children on persons who bring them into being’’ is, how-

ever, wholly without any realistic or rational basis in-

te ——— eo ee a a nn ne ne Sa ee ae ao,

— wee

sofar as this ‘‘substitute father’’ regulation is concerned.

The punishment under the rggulation is. against needy

children, not against the participants in the conduct con-

demned by the regulation. The State is-not without means

of attempting to solve the problem which it recognizes,

short of depriving children of aid because of immoral

conduct of the mother. Under the Alabama Support and

Desertion Laws (Title 34, §§ 89-104) and the Alabama

_ Paternity Statutes (Title 27, §§12(1)-12(9)), the father

of children born out of wedlock may pe required to sup-

' port and maintain the children from e financial stand-

point. Under Alabama Welfare Agency policies or regu-

lations, if the home situation is considered unsuitable

appropriate action may be taken fo place the needy chil-

dren under the care of a Juvenile Court. The ‘State’s

argument, implied throughout the brief, that the ‘‘sub-

_ stitute father’”’ regulation has a rational ‘basis to the

definition under 42 U.S.C., §606{a) of dependent child-

(ren) who. are'to receive aid under the Act, by reason of

the public’s concern over the continued procreation of

illegitimate childr#h by persons who seem economically

_ unable to care for them, is utterly ynrealistic. ©

The approval or disapproval of sexual ‘promiscuity is

not here involved. What is involved is whether needy

children can-be deprived of public assistance through the

use of a State regulation that creates classifications not

rationally related to need and ‘through the use of these

classifications deprives approximately 16,000 Alabama

children of financial »ssistance to which they are other-

wise entitled. It should be noted that there is no vested

legal right for anyone to receive public financial as-

. #istance; neither the United States nor the Alabama Con-

8 E. g.: “Certain phenomena have become apparent and a matter

of realistic concern to everyone is the continued procreation of

illegitimate children by persons who seem economically unable - to

care for them and undoubtedly in some instances seem to lack initia-

tive or the desire to properly care for them. This is by no means \

limited to members of any one race. . . -

RE ee ee

a ’

- =~

stitution requires Alabama to grant financial assistance

to needy dependent children. However, once Alabama

undertakes. to provide a statutory program of assistance,

it must do so in conformity with the constitutional ‘man-

date of equal protection. Alabama cannot pick and choose

the mothers and children it will aid through the use of

some classifications which are not rationally related to

the purpose of the applicable statutes. Anders v. Cali-

fornia, 386 U.S. 738, ....8. Ct. ..., ... LEd2d ...

(1967); Swenson v. Bosler, 386 U.S. 258, 87 S. Ct. 996, .

18 L. Ed. 2d 33 (1967) ; Rinaldi v. Yeager, supra; Douglas

-v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811.

(1963) ; Griffin v. LWinois, 351 U.S. 12,°76 S. Ct.’ 585, 100

L. Ed. 891, 55 ALR. 2d 1055 (1956), reh. denied 351

. U.S. 958, 76 S. Ct. 844, 100 L. Ed. 1480. The irrationality

and the. unreasonableness of the Alabama regulation is

starkly revealed when it is realized that the regulation

singles out from the Alabama needy dependent children

a particular class who are illegitimate, or whose mothers

engagé in an illicit sexual relationship, or who have an

illegitimate child born in their family, and for one or

more of these reasons renders ineligible those children

otherwise eligible to receive financial benefits: under the

Aid to Dependent Children. program. This ‘‘substitute

father’’ gains his parental status under the Alabama reg-

ulation not by any act of fatherhood to the children and.

not by any support furnished, but merely by having

sexual relations with the mother. The regulation assumes

that from the mother’s alleged sexual relationship the

- man has assumed the role of: thé father to her children;

this despite the fact that the man is not the father of the

children, is not married to the mother, is not living in

_ the home, oyes no duty of fatherhood to the children and

gives them no financial support or parental care. ‘

This Court concludes that the Alabama ‘‘substitute

father’? regulation ‘is an arbitrary and discriminatory

— 59 —

classification which results in the denial of financial

benefits to neédy children who are clearly eligible and —

entitled to receiye such benefits under both the federal —

and state statutes and constitutional regulations and that

said children are denied for reasons: unrelated to “and in

conflict with the purposes of these statutes. For this

reason, on its face, and as the evidence’ reflects it has_

been applied in this case, the Alabama ‘‘substitute father”

- regulation deprives those children of the equal protection

of the laws’ in violation of the Fourteenth Amendment

to the Constitution of the United States.

In view of the conclusions herein, reached, it is not con-

sidered necessary or even appropriate to deal with plain-

tiffs’ other contentions.

A formal order will be entered accordingly.

Done, this the 8th day of November, 1967.

- JOHN C. GODBOLD, . ;

. United States Oirenit Judge,

FRANK W. JOHNSON,

United States District Judge,

VIRGIL PITTMAN,

United ven District J judge.

DECREE.

(Caption 7

3 (Filed Nov. 8, 1967.)

~ Pursuant to the findings ‘ina conclusions set forth i in the

opinion. and order of this Court’made and entered in this —

cause this date, it is Ordered, Adjudged and Decreed that:

“() The regulation promulgated by the Alabama State

Department of Pensions and Security entitled ‘‘Child ineli-

COLMAN NIG ER ATEL! § DRS SLED te Bo Bo 4 be Nb

es 2

NE ae Oe ee LD Ce SIN

: \

- 60 ?

—

- gible if. There Is a Father or Mother Substitute’? and set

_ forth in the Alabama Manual for Administration of Pub-

lic Assistance, Part I, Chapter II, Seetion VI,-be and the ©

same is hereby declared invalid for the reason that it is

in violation of the Equal Protection Clause of the Foure

teenth Amendment to the Constitution of the United

| States.

(2) The defendants ‘Ruben K. King, daiiidienes of

_ the State Department of Pensions and Security, State of

Alabama; Lurleen Burns Wallace, Chairman, State Board ,

of Pensions and Security, State of Alabama; James Rec-

ord, Mrs, Mary Waite, William M. Clarke, Temple Coley,

, Grant Whiddon, Mrs. Mary Ella Reavis, members’ of the

State Board of Pensions and Security, State of Alabama,

and Mrs. Clinton S. Wilkinson, Sr., Direetor, Dallas

County Department of Pensions and Security, their agents,

employees and successors, and all persons in active -con-

cert and participation with them, are permanently en-

joined and restrained from enforcing or giving any fur-

ther effect to that regulation entitled ‘‘Child Ineligible if

_ There Is a Father or Mother Substitute’’ and set forth in

the Alabama Manual for Administration of Public Assist-

ance, Part 1, Chapter II, Section VIL.

(3) The defendants, their agents, employees ory suc-

_ 3essors, immediately reinstate upon the Alabama Aid to

Dependent Children rolls, regardless of their race or color,

. each of the ‘children who has been declared ineligible for

Aid to. Dependent Children ‘financial assistance through

the use of the regulation entitled ‘‘Child .Ineligible if

There Is a Father or Mother Substitute” and set forth in

the Alabama Manual for Administration of Public As-

_sistance, Part I, Chapter II, Section VI, provided the said

| children are now otherwise eligible and entitled to receive

said assistance.

(4) The defendant Ruben K. King compile and file with :

the Clerk of this Court within not less than ninety days -

+ ~

. from the date of this order a list setting forth the names -

®.

and addresses of the individuals who have been restored

to the Alabama Aid to Dependent Children rolls pursuant z

to the opinion and decree. of this Court.

“The Clerk of this Court i is Ordered and Directed to take .

the necessary and appropriate steps to have the United

_ States Marshal for this district personally serve a copy of

the opinion of this Court and of this decree upon each of

the defendants. ,

It is further Ordered that the costs’ incurred in this_

proceeding be and ‘they are hereby taxed against the State

of Alabama.

Done, this the 8th -— of November, 1967.

~ JOHN C. GODBOLD,

_ United States Circuit Judge,

FRANK W. JOHNSON, JR.,

United States District Judge,

VIRGIL PITTMAN, a

United States District Judge.

Supreme Court of the United States.

ae , October Term, 1967.

Ruben K. King, Commissioner of the State Department of

Pensions and Security, State of Alabama, et al.,

Appellants,

Vv. =

Mrs. ‘Sylvester Smith, Tadividually ‘and on Behalf

of Her Minor Children.

ORDER. = .

‘(Filed Noy. 29, 1967.) .

Upon ‘Ounsideratinn of the application of counsel for.

‘ appellants, and * the opposition thereto,

—62— }

It Is Ordered that the execution and enforcement of the

decree of the U. S. District Court for the Middle District.

of Alabama be, and the same is hereby, stayed pending

‘the docketing of the appeal within thirty days from this

date. Should the appeal be so docketed, this stay is to

remain in effect pending the Court’s consideration of such

appeal. In the event the judgment is affirmed or the ap-

: peal is dismissed, this stay shall expire automatically.

] Should the Court note probable jurisdiction or postpone

consideration of the: jurisdictional aspect until a hearing

. on the merits, this stay is to remain in effect pending

the issuance of the judgment of this Court.

/s/ HUGO L. BLACK,

Associate Justice of the Supreme -

Court of the United States.

Dated this 27th day of November, 1967.

A true copy

Test: . .

. JOHN F. DAVIS, |

Clerk of the Supreme’ Court

of the United States,

By (Illegible) _ 3

Chief Deputy.

. ioe 63 as .

In the District Court of the United States

. For the Middle District of Alabama,

‘Northern Division.

Mrs. Sylvester Smith, et.al.) — pias

| am -. Givil Action No. 2495-N.

Ruben K. King, et al. : |

DEPOSITION OF RUBEN K. KING.

(No. 2 as Noted on p. 1, of Stipulation Filed 4-27-67.)

% Mareh 9, 1967 |

- Montgomery, Alabama.

ee ee eee

[1] In the District Court of the United States

For the Middle District of Alabama, —

Northern Division.

Mrs. Sylvester Smith et ai, —s,

Pia:atiffs,

vs. - ° | Givil Action.

; > No. 2495-N.

Ruben K. King et al.,

Defendants. |

Deposition of Mr. Ruben K. King, taken in the above

_ styled cause pursuant to the Federal Rules of Civil Pro-.

cedure, on the 9th day of March, 1967, at 11:00 a. m., in

the office of Commissioner King, of the Department of

Pensions and Security, State Administrative Building,

Montgomery, Alabama, before Ira Fred Watson, a Court

‘Reporter, and a Notary Public at Large for the State of

— 64 — °

Appearances:

Hon. Charles S. Conley and Hon. Martin Garbus hie

the Plaintiffs. : a

Hon. Mary Lee Stapp and Hon. Carol Miller for the

Defendants.

[2] | INDEX.

Witness | ’ Direct in Redirect

Mr. Buben:K. King °° ~ ae. 71 71

) : “Exhibits, ee

) Bxhibit No. 13 .......- Ar "Sea ehe mua a |

ie ME a, La Lo cee Scactaueaanemaes ee

| MEM ok tc eee

| Exhibit Mp, 16 ...........-.- eee er re iene

Exhibit No. 17 ...... Pe ratte 7 eee

Webbie Me, WA ccosa sg scccesavesssceeesee Pee et

a Nn oe aaa ee 10~

| Exhibit No. 20 .........i600000 eee er

Exhibit No. 21-A, 21-B,.21-(.dnd 21-D ...0.......... 12

acc bes upc 13

a OP os sis eases ieee ae

i | | : : \\

[3] : | Stipulation. :

It is stipulated and agreed by and between counsel rep-

resenting the parties that the deposition of Mr. Ruben. K. -

King may be taken before Ira Fred Watson, as Commis-

sioner, at the offices of Mr. King, No. 500, State Admin- S

istrative Building, Montgomery, Alabama, on March 9,

1967, at 11:00 a. m., and that all notice and issuance of

a commission are waives and the parties further agree .

that the submission of said deposition to ‘the witness for

reading and signature is waived, the said deposition to

have the same force: gnd effect as if full compliance has

been had with all laws and rules of court relating to the

taking of depositions.

-It is further agreed’ that it shall not be necessary for

‘any objections to be made by counsel to say questions

except as to form or leading questions, and that ‘counsel

for both Plaintiff and Defendant may make objections —

and assign grounds at the time and place of trial ors orat

-* the- time the said deposition. is offered in: evidence or

~ prior “thereto. :

It i is further. agreed that notice - the party taking the

deposition of the. filing’ of said deposition to any. or all

other parties is hereby waived.

[4] oie ae Deposition.

Whereupon,

RUBEN K. KIN G,

aie first being duly sworn, was examined, and deposed

as follows: :

Direct Examination,

by Mr. Conley:

Q. Would you state your name, please?

A. Ruben K. King.

Q. Avid where do you reside?

A. At Alexander City, Alabama. eee

Q. Where are you employed, Mr. King?

A. I am employed with the State Department of Pen- ;

sions and Security, Montgomery, Alabama-

_-_ =

Q. What specitically is $ your commission, sirt |

_ A, Conmutesioner, State —_——- of Pensions and

Security. :

Q. How long Have you been wae the Department of

Pensions and ‘Security? :

A. Since January 15, 1963. . ‘ ee.

* Q. Now, Mr. King, can you state ‘the number or. én ap-

proximate 1 number of persons under your supervision?

A. Direct’ ‘supervision, Or working with the Department

throughout the State?

'Q. Working with the Department i aus the State.

[5] A. Approximately fifteen hundred. —

Q. Approximately fifteen hundred?

A. Yes, sir.

Q. How many persons are ‘oe your direct super-

vision t

_ A. Here in the State = I think er there

are 175. , f

Q. All right, sir.

. A. The rest of them are in the 67 County offices

throughout the State.

Q. Now, Mr. King, are you familiar with the Substitute

Parent Rule? |

A. Yes, sir, I am fiitiee with it.

Q. Would you explain briefly how this =" was ar-

rived at?

‘ A. When I came down as Commissioner in 1963, I was

aware at that time that there was a great deal of contro-

versy. I think the Aid: to Dependent Children program

is. the most controversial, not only here in the State of

Alabama, but any other State in the Union. There was a

great deal of talk at that time about abolishing the pro-

gram; period. We were getting a great deal of inquiries.

from the people throughout the. State, as well as members

of the Legislature; and so I asked for a complete investi-

gation of this program. A complete investigation of the

—_ an

program was made. After it was ‘side it was pretty

- 6] apparent that there were a great many weaknesses

in the program. It pointed out for one thing, the laxity

__of the non-support laws in. this State. We immediately

went before the Legislature in regular session, and asked

that non-support be made a felony in this State. After

that that, it also pointed out that there were : many people

in and out of thé homes who were enjoying the privileges —

of the husband, but who were not carrying the responsi-

bilities of the home. So, in order to save the whole pro-

- gram, there had to be something done. After conferring

with many, many people in this State, we came 7 with

the Substitute Parent policy.

Q. Were public hearings held prior to the adoption of

this?

A. No, there were no public hearings held. -

Q. And who finally formulated the rule? ‘ad

A.‘ finally formulated the rule, with the help of my

Department.

Q. Can you tell us the approximate t the number of re-

cipients under the child eligible rule?”

A. Do you want it prior to the substitute parent ws

Q. Prior to and subsequent to.

A. In’ June of 1964, there. were 22,373 cases in Aid to

Dependent Children. In June of 1964, there were 92,124

[7] recipients: of these, 72, 764 were children. In January

’ of 1967, there were 71,228. total number ,of recipients

under the’ ADC program; of which 56,822 wile children. _

(Off record discussion. )

Mr. Garbus: I would suggest that we mark as Exhibits -

13 and 14, the two decuments just referred to by Mr.

King. °

Q. (By Mer _ Garbus) Mr. King, will you describe for

A. Ali right. ‘The first document showing that there

~ were 92,124 recipients under ADC, is referred to as Sta-

tistics, dated J une, 1964, State of Alabama, —

_ of Pensions and’ Security.

(The docunient referred to, Witness King, was aoe

as Plaintiff’s Exhibit No. 13.) . ,

The Exhibit showing 71,228 people as the whine of .

recipients in January of 1967, of which 56,822 were chil-

dren, is shown as Statistics, January, 1967, o— of Ala-

bama, Department of Pensions and Sectrit |

(The document referred to, Witness = was marked

"cas Plaintiff's Exhibit No. 14.)

documents which you have before you, and which I would

appreciate if you would describe. e:

A. All right. Comparative. case load data’ for the

[8] months of May; 1964 and June of ’64, will be referred

to as Exhibit No. 16. ‘é

(The document referred to, Witness King, was sere

as Plaintiffs Exhibit No. 15. )

Comparative case loads data for the months of ‘Decem-

ber, 1966 and January, 1967, will be referred to as Pisin-

tiff’s Exhibit No.~16. -

. (The document referred to, Witness King, was marked

as Plaintiff’s Exhibit No. 16. ) ;

_Q. (By Mr. Conley) Cen you give us a further ns.

down on the number of recipients ho are Negro and the °

number who are White? . Pi :

. A During that particular timet

Q. Yes, sir.

_. A. I don’t know if we have them for these particular

months, because we only have, those sfatistics are only -

. made available, I believe, in January.and June of each.

Mr. Garbus: May we mark, that document as Plaintiff’s

Exhibit No. 17. | , “ne

—69 —

(The document referred to, Witness” King, ‘was marked

as Plaintiff’s Exhibit No. 17.)

. (Off record discussion.) 7

Witness: Public Assistance cases for Dévember of 1966

classified by Race, will be shown as Plaintiff’s Exhibit

[8-A] No. 17. Now, you asked a specific question in regard -

to the number of Negro? 4

Q. Yes. ;

A. Are you talking about in our Xe case load, or

overall? gate

' Q. ADC case load. $f

A. In December of 1966,. there were a total of 17,157.

families in this State. The figure shows that 67.3 per cent

were members of the Negro Race, 32.4 per cent were

members of the White Race, the other was three tenths

of one per cent of other Races. These figures here =

also show a breakdown by counties also.

Q. What isthe figure then for the overall welfare =

_ gram? |

(Off record ileal.

A. Total cases receiving public assistance for December ;

of 1966 showed that there were a total of 149,063 in all

categories tf public assistance; and 56.3 were White; 43.6

per cent were members'ef the Negro Race; and, one-tenth

of one per cent were members of other Races.

Q. Can you give“us the approximate amount or the

average amoung of checks received for this program?»

_ A. Will you re-phrase your question? I am not sure

that I understand it.

Q. Can you give us an approximate figure as’ to the

"amount each family received, ‘first under the. ADC pro-

gram? .

[9] Mrs. Stapp: Mr. Conley, do you mean the amount,

the total amount of money, or do you mean the indi-

ee \

_— =

Mr. Conley: The total amount of money which was

received.

The Witness: I don’t think ‘that our figures wéuld

show that. These documents are going to be in evidence.

I don’t think that it shows the amount of money that

they are getting. These statistical bulletins over here

may show something; but I don’t think that it is going to .

show in regard to’ Race. It will show you what the

average payments were:

Q. (By Mr. Conley) Well, what about the average pay-

ments then? ;

“ A. All right. In June of ,1964, the average payment

per family was $48.15, or $11.69 per recipient. This was

in June of 1964, as shown by Plaintiff’s Exhibit No. 13.

In Plaintiff’s Exhibit No. 14, referring to the amount of

payment per family as of January of 1967, shows that

the average payment per family was $52. 68, $12.72 ad

recipient.

Q. Have you additional information which would celate

to the amount of the average payment received by the

Negro as opposed to the White family, a White man?

A. I don’t think that we have it broken down.: We

’ have the number of recipients, but I don’t think that we

have it that way. I am not aware of any statistics which

[10] would show that.

Q. Have you any statistics to show the . saad of

times in ’65 and ’66 where the Substitute Parent Rule

has been invoked ‘for the purpose of: withdrawing cover-—

age?

A. I don’t know. I think your ai themselves will

show. I would assume that your greatest reduction, Mr.

Conley, in the number. of recipients and families, were,

as a result, of your Substitute- Parent policy, I don’t

- know that we have any eae that will show that in

particular. ‘ eens

(Off record Section.)

fs ees

Mrs. Stapp: Mr. King, ‘this is the only thing that has

been done that we know to date on the Substitute Parent

policy. This is the only material that we know of that

has been done on this policy as such.

Mr. Garbus: We would like to mark that document

as Plaintiff’s Exhibit No. 18. ;

(The above-mentioned document, Witness King, was

marked as Plaintiff’s Exhibit No, 18.) ,

The Witneds: Could we also mark as Plaintiff’s Ex-

- hibit No. 19, Public Assistance cases’for June of (1964, .

classified by Race?

‘(The document referred to, Witness King, was marked

as. Plaintiff’s Exhibit No. 19.) , |

[11] .Q. ‘(By Mr. Conley) Is it my understanding that

you don’t have any information with respect to the num-

ber of eases which would reflect-——

‘A. Well, we have something here which shows Public

Assistance cases closed because of change in Agency

policy inevitable because of substitute or This is

July, 1964 to June of 1965. e,

(Question by Mr. Garbus):— _

—Q.<«€ain we ‘then mark as Plaintiff’s Exhibit No. 20, a° -

document entitled ‘Public Assistance Cases Closed Be-

cause of Change in Agency Policy, July, 1964 to June,

1965? I assume, Mr. King, when you are talking about

the change in Agency policy in this document, we are

talking about implementation application of the substitute

father rule, as the last column of that page seems to

indicate. ,

_ A. That’s right. - | ‘

(The document referred to, Witness King, was marked

as Plaintiff's Exhibit No. 20.)

oe -

A pikenartahipiltciaalebbatns i hea

poe ee

- -Q. (By Mr. Conley) Have you any additional. informa-

tion which would relate on a county-wide hasis the num-

ber of withdrawals?

- A. Yes, we have it. We have it, but it is for the y year

of July of ’64 to June of 1965. It is marked as Plaintiff’s

Exhibit. No. 20.

Q. (By Mr. Garbus) Mr. King, do you. have any mn

_ tistics which would indicate the total amount that the.

pon various programs cost the State of Alabama during

, 1961, 1962, 1963, 1964, 1965, 1966, and 1967 to ad-

minister the Old Age ‘Pensions program, the Aid to the

Blind. program, the’ Aid.to Dependent Children program, -

the Aid to the Children in Foster Care county program,

"the Aid to the Children in Foster Care State program, the —

' Aid to the Permanently and totally disabled, the tem-

porary aid, the medical assistance to the aged, and the

aid to the children—— |

A. Yes. I don’t know if we have it in’ here, but it

would show it in the annual reports; because we can get

--copies of those annual reports.

. (Off record discussion.)

The Witness: We will make available to the Plaintiffs

the annual reports for the years which-he asks for, which

is 1960, 1961, 1962, 1963, 1964; 1965, 1966, and of course

"67 will not be available. The annual report for 1967 will

not be available until September—

Mr. Garbus: We will mark -as Plaintiff’s Exhibit. No. o.

21 the document designated as the Annual Report of the

Alabama Department of Welfare, which Mrs. Stapp ad-

vises me is the most recent Alabama annual report. ~

(The document referred 1. Witness King, was marked

as Plaintiff’s Exhibit No. 21-A.)

Mr. Garbus: Feat‘ ‘mark the exhibit No. 21-A, 21-B,

_ 21-C, and 21-D.

—73—

{13] Mr. Garbus: We will mark as Plaintiff’s Exhibit

No. 22 a document described as Characteristics of Fami-

lies and Children Receiving Aid to ) Depengent Children,

in March of. 1963.

_ (The document referred to, Witness King, was marked

as Plaintiff’s Exhibit No. 22.) ~

We will mark as Exhibit No. 23, a letter from the

Secretary of Health, Education and Welfare concerning

the Civil: Rights hearing held pursuant to Section 602.

“(The document referred to, Witness King, was marked

as Plaintiff’s Exhibit No. 23)"

(Off record discussion. ),

The’ Witness: I will also want marked as the Defend-

ant’s’ Exhibit my letter to Senator Long the other day.

Mr. Garbus: If you will let me see it, I will even mark

it as a Plaintiff’s Exhibit. .

' The Witness: Make it available to them. I would like

to have my answer to his accusations.

Q. Mr. Garbus: N: ow, Mr. King, you mentioned that the

ne ‘welfare program, when you came into office in

anuary of 1963 was, quote ‘‘most controversial,”’ un-

quote. What did you niean by that? ,

A. I didn’t-say the entire program. If I said it, I -

didn’t mean to. I said that the Aid to Dependent Chil-

dren [14]. was.a very controversial program.

Q. Controversial in what way? .

A. Controversial to the effect that ‘there were. many

people on the Welfare rolls, justly or unjustly so, and

there was -a great deal of talk about it by the people of

this State; there was talk eine — the ADC .

program, abolishing it.

_ Q. Was there a feeling that the shinai was too ex-

pensive for the State in the manner in ‘which it was being

conducted ? ;

—/

AI don’t think that it was that neathnctaiie. because

it is not an expensive program as compared to say, for

example, our Old Age Pension program, which was 75.

‘per cent of the total expenditures.

Q. Roughly what were the total ee. of the

ADC program.

A. I don’t have that —_— right here with me——

(Off fecord discussion.)

The Witness: Aid to ‘neces Children . i8 6. 4 per:

cent.

Q. That’s the cost. i

A. Aid to Dependent Children.

Q. ——the administration of the program, the checks

that are paid out?

_ A. That is not the cost of the administration. The [15]

administration of the overall whole welfare program is

6.9 per cent. This is, in our Aid to Dependent: Children,

_ 8.4 per cent of the togal 100 per cent. Administration, it

still shows the administration being 6.9 per cent; Old Age

Pensions, 74.6 per cent. I am referring to a chart sonal

on Page 11 of Plaintiff’s Exhibit No. 21-A.

Q. So that the controversy which arose in the early

part of 1963 did not have to do so much—as I understand

your testimony—with the cost of the program, but with.

_. other aspects of the program; is that right?

~ A. Other aspects not. only here, but if you will also

‘check, Mr. Garbus, it was also a very. controversial pro-

gram not only here but in Washington, D. C. and in all

other areas of this country, too. It has always been a very

controversial program, much: more so than ed of your

other /programs.

Q. Had the program been controversial before you came

into office? |

A. Oh, yes.. This has been: a controversial program in

this State for -_ some time: in fact, there have. been

‘

many bills introduced in the Legislature of this State

which would limit the number ‘of illegitimate children ”

_ that could draw under this particular program.

Q. Was the major concern then, in so far as the pro-

gram was céncerned was that—at least in the eyes of

[16] certain people, or a good segment of the population

—that it appeared to promote illegitimacy? -

_ A. Well, yes, sir, that was—— ,

Q. Would you say that that was the primary dissatis-

faction with the program? —

A. Oh, I think that that would be the major factor,

yes, sir.

Q. And when you say that it would promote illegiti-

macy, you are talking about Negro illegitimacy, or White

. illegitimacy? | |

A. We are talking about both. . :

Q. Do you know what the illegitimacy rates were dur-

ing the years 1960, 1961, 1962, 1963, 1964, 1965 and 19661

_ A. I don’t think that that was ever made available un-«

til our complete study: and I believe it showed, our study

showed something like, something like 26 per cent. The

- illegitimacy rate as related to the total. was only approxi-

mately 26 per cent of the children illegitimacy: but in re-.

gard to Races, I think we have those figures available.

It came out in the study that we made. .

‘Q. May I have a copy of that study?

A. If we have it here.

(Off record discussion.)

) iy

The’ Witness: Here’s the legitimacy status of children —

in Plaintiff’s Exhibit No. 22. [17] It shows that as of

March, 1963 there were 71,753 children receiving aid un-

der our ADC program: of this, 73.7 were legitimate, and

26.3 were illegitimate.

(Off record 7 discussion.)

‘

—76—

'Q. (By Mr. Garbus) Do vein, Mr. King, any similar

statistics for the years of 1964, 1965, 1966 and 19672 it

A. I don’t believe that we have one any study since

that time on them..

Q: Mr. King, do you know what portion of the illegiti-

mate children, set forth in March, 1963 study, were re-

ceiving ADC Aid? |

* -€S : A. Well, all of these children were receiving aid here.

Q. Do you know what er

"A. No :

Q. Of the—

A. It could be figured out, though, ‘from your figures

here.

Q. Do you know what percentage of ihe Negro i

legitimate children that were in the country that were

——s aid in 1963; and do you know what percentage

-of-the illegitimate White chilfiren were -Feceiving aid in

1963

A. Are you talking about in the country, or in the

State of Alabamat ~ Seed

- [18] Q. In the State of Alabama.

A. These are the only figures that we: have, and this

there will show; and of course we have slaps in

regard to the total number.

Q. Mr. King, you indicated that the primary . réason |

for the concern on behalf of the constitutents of Alabama ~

‘—and you indicate that perhaps throughout the country

—with the ADC program, was that it was promoting

purpose behind the enactment and application of ~ the

Substitute Parent plan that Alabama now- has?

_ A. It was one of the factors: but, of course, the other

factor was that we also have a-resource law which says

that any available resources available to a family must ~

be taken into consideration. It all goés back to what

came as a result of our study. So whatever the figures

illegitimacy. Is it your feeling that that was the primary -

— jon

_I had said earlier, it shows a great laxity on the non-

support laws. It’s like I have said so many times in

speeches throughout this State that if a man wants to

play, then let him pay; and if he has the pleasures ‘of

a husband, then he ought to have the responsibilities

of a husband. eau | :

Q. When you. said pleasures of a husband, do you

mean sexual relationship? :

A. Yes, I am talking about that. _

Q. And when you say privileges of a husband, do you ~

[19] mean sexual relationship?

_ A. Yes; but not only that, but the other privileges:

that. a husband enjoys; ‘that is, the company of the

children, and the company of the person, as well as any .

privileges that a person in such circumstances would _

enjoy. Rees ae, ce et

_ Q. And when ‘you use the word ‘‘cohabitation” in the

Substitute Parent policy,. were you equating that with

sexual relationship! a

A. Well, are you talking about cohabitation?

Q. Yes. Bice |

cohabitation, we took from Black’s Dictionary. 3

Q. And in your understanding of that term, does it

mean sexual relationship?

A. Yes, it means -sexual relationship, in and out of

the home, — neers -

Mr. Garbus: Off the record.

(Off record ‘discussion. )

Mr. Garbus: Back on the record.

Q. (By Mr. -Garbus) Mr. King, were you appointed

by Governor Wallace, formerly? |

A. No, sir. I was appointed by the State Board.

Q. And who was the State Board appointed by?

A.. The State Board was appointed by the Governor,

oe —*

but not by Governor Wallace. Bt was “appointed by prior

[20] Governors. ‘At the time.I came here in January

of 1963, every appointee on the Board at that.time. had

been appointed either by Governor Folsom or by Gover-

nor Patterson.

Q. Had there been a Substitute Parent policy before?

A. No, sir

Q. Before you came into office?

A. No, sir, there had not been.

Q. Had there been a Suitable Home policy before you

A. Yes, there had been a Suitable Home policy before.

Q. Was that Suitable Home policy in effect at the

time you came into office?

A. Yes, it was. |

Q. Is the Suitable Home aed presently in effect?

A. Yes. 5

-Mrs. Stapp: I am going to éhjont to that question,

if I may. I think he previously testified that—well, let’s

go off pe record.

(Off record iemeiien:)

Mr. Garbus: Back on the record, please.

-Q. (By Mr. Garbus) As I understand your testimony

-off the record, Mr. King, the present Substitute Parent

‘policy includes what had been your Suitable Home policy

as well as several new provisions; is ~ right?

Q. When for the first time was a Substitute Parent

policy suggested to you: or when for the first time you

suggested it to somebody else? .

"A. Well, as I stated earlier, when I came down as

Commissioner in 1963, I asked for a complete study of the

Aid to Dependent Children program. As soon as the

study was completed, we then started talking about the .

Substitute Parent policy. .

—, ae

Q. And the purpose of the Substitute Parent policy at

that time, as I understand, it was to cut down the illegiti-

macy rates of the people on the welfare rolls; is that

right? ee . :

A. Not necessarily that. ‘That was only one factor. I

don’t say that that was the major factor. I think the

major factor was that we were taking a look at our

resources, and here were resources that I considered ‘to

be legitimate resources that were not being used.

Q. What percentage of the State’s resources were being

. used to support illegitimate children on the ADC rolls

when you came into office?

_A. I don’t know that I have those figures. I would say

t the annual report for 1962 would show the per cent

of payments into ADC; but, of course, as it was pointed

out in our study, it only shows that 26 per cent of the

[22] children, of all the children, were illegitimate.

Q. And so that certainly less than 26 per-cent of your

total ADC program was involved when you came into

. Office; is that right?

A. Well, if you are referring to the support of illegiti-

mate children, I would say that. Of course, at that time,

we were not even aware of the percentages, because that’s

what the study itself brought out. Mer

_ Q. What are the percentages for the years of 1964,

1965, 1966, and 1967 with respect to the cost to the State

for the illegitimate children? |

A. Well, we will have*to go back and take a look at

the annual reports. Those figures would be available in

' your exhibits for those years in your annual reports. I

don’t have them before me.

Q. Do you have any memoranda between you and any

other members of your office, or the Governor, or the

Legislature, or the offices of the Department of. Health,

' Education and Welfare prior to your promulgation of the

July, 1964 Substitute Parent policy?

— ee

A. I’m not sure. In fact, I am: sure that we don’t

have; but, as I stated to you, I was aware, I was an

Attorney before I came here, and I was also a Judge,

and I was aware of the problem, aware of the criticism.

When I came here in January, there was a special session

of the [23] Legislature called. At that time I started

talking with numerous members of the Legislature; ana

as a result, there was a great feeling on my part that this

program was going to be abolished.

Q. And do you have a file concerning any letters or

complaints made to you or your gffice concerning the

ADC program that was in existence when you came into

office ?

A. I don’t know that we have those files.just particu- —

larly for that, but I am sure that if we go through cor-

respondence here, that we could show yeu thousands of

. letters criticising our ADC program of the State, as well

as some other programs, too.

Q. Were there any letters or correspondence exchanged

between you and the then Governor——

A Ge... *

Q. ——Concerning the ADC program?

aa” No, sir. I discussed the matter with the Governor,

because he was the Chairman of the Board.

Q. Was this March, 1963 study made available to you

prior to the time you formulated the Substitute Parent

policy? | ;

Alt certainly was, yes, sir.

_ Q. Was the’ Substitute Parent policy adopted in 1964

the same, in-the same form, as when = originally drew

it?

[24] A. Well, the policy today i is not the same as when we

drew it in 1964, because we have made certain changes on

recommendations of the Department of Health, Education

and Welfare.

Q. Had you made any prior drafts of the policy before

you put it into effect?

a a eee

—

A. I don’t know whether we made any prior drafts, I

am sure that we have made drafts,

Q. Do you have a,copy of any of those drafts?

A. The only copy that we have is the final draft that

went out...

Q. Do you at some time go to Washington to discuss

the Substitute Parent policy with representatives of the *

Department of Health, Education and Welfare?

A. We have discussed it. I don’t know whether we

lked about it in Washington, or talked about it here, or

( in Atlanta; but the on. the policy was discussed with

officials.

Q. You Reina it with Mr. Perry and Mr. Steininger?

A. I don’t think I discussed it with Fred, Fred Stein-

inger; because I don’t believe Fred was in Washington at

the time. I think that he was still in Indiana.

Mrs. Stapp: Let’s get off the record for a little while.

( Off record discussion. )

[25] Mr. Garbus: Let’s get back on the ney

Q. (By Mr. Garbus) Mr. King, did-you, Mr. Steininger

.or Mr. Perry exchange any letters concerning the Substi-

tute Parent policy?

* A. I can’t recall any; but I am sure that we have. There

have been exchanges of letters. .

‘Mr., Garbus: Off record, please.

(Off record discussion.) -

Mr. Garbus: Back on the record.

. The Witness: Well, in response to your question, I am

_ sure that there has been correspondence i in there. I mean, °

whatever we bave got, it will be made available to you.

Mr. Garbus: Well, I would like to see it. Maybe we can

see-it before we start again tomorrow.

Mrs. Stapp: All right.

Q. (By Mr. Garbus) Mr. King, does your office 1 main-

tain a ile concerning the preparation and submission of

itself.

ab iho tm "i Na Ete wll

—82—.

fhe Suitable Home policy that had been in existence in

Alabama, as I understand it, from 1949 until immediately

prior to the Substitute Parent policy of 19641

(Off record discussion-)

(Back on record.) |

The Witness: For the record, | still want you to object. .

[26] Mrs. Stapp: We object to that question. —

The Witness: And if a Judge says submit it, then we

will do it, We have got thousands of records in this De-

partment; and if we are going to be required to produce

all the records in the Welfare Department, I am just going |

to get a transfer truck and take-them down there and let.

Judge Johnson sort them out.

‘I asked my attorneys to object to the relevancy of that

question; and if we are going to be required to take every

_record of the Welfare Department down to the Court

Judge Johnson sort them out. —

Q. (By Mr. Garbus) Mr., King, do your files indicate

the kind of information that was used to declare individu-

als ineligible because of the Substitute Father rule during

the first menth of the application of the Substitute Parent

rule? ie .

Mrs. Stapp: Now what was that question?

- Mr. Garbus: Off the record, please.

(Off record discussion. )

Mr. Garbus: Back on the record. ;

The Witness: I don’t think that-we-would have it broken

down; but we do, Mr. Garbus, have it broken down in

regard to the application of the Substitute Parent policy

[27] Q. (By Mr. Garbus) Do you have it broken down -

further, Mr. King?

A. No, sir, we do-not have it broken down further.

— 834

Q. And 40 as I understand ; your » deaths if I were

to look into your files to determine under which provision

of the Substitute Father rule of a particular person who

_ had been denied aid, say in July of 1964, I could not

find that information; is that correct?

A. No, sir. As far as I know, that is not cratteise,

Now. we do have in regard to being removed - because

of the policy itself, but not a particular essen of the

policy.

Q. But you don’t know, for example, of the 516 cases

closed in July of 1964, how many of those cases were

closed on the ground that a substitute parent was a

person who did not cohabit in the home, but had the

privileges of a husband, as you say, outside of the home?

A. No, sir. As far as 1 know, that information is not

available.

Mr. Garbus: Off the record, please,

(Off record discussion.)

Mr. Garbus: Back on the record. Mr. ‘hen will

you read back the previous question?

(The previous question was read back by the Reporter:)

Q.-(By Mr. Garbus) ‘Will you please answer?

[28] A. As far as I know, the information is not avail-

able, Mr. Garbus.

-,Q. The only way that that could- be found out is if we

were to make an independent investigation of each case’

closed because of the Substitute Parent rule; is that

right?

A. That is correct.

Q. Would the files themselves have that information?

A. Yes, the files themselves, each individual file would

have it; yes.

Q. Mr. King, when a file“is closed because of the

application of the Substitute Parent rule, is the file sent

from the County office to the main office? .

See er. One ee Seen

Bree SS aS OM Ta

or ae

A: It still remains in the County. But of course for

our own central file, I think that we will get a notation

that this particular. case has been closed. I think that

. our files here would show it; but it may not be broken

‘down as much as you are asking for,

Q. Now,’ Mr. Ing, the Substitute Parent regulation,

which we have marked as Exhibit 9, the complaint, con-

tains the following statement; namely, that aid may. be

denied where the substitute parent ‘‘though not living

in the home regularly, he visits frequently for the pur-

poses of cohabiting with the child’s natural or adopted

' mother.’’’ Now, how often is “frequently ?’?

[29] A. Well, I don’t. know. You are asking me a ques-

tion I really don’t know. _ : |

Q. Well, you drafted the Substitute Father rule—_

A. Yes, sir, I drafted ‘it, along with other’ members .

of my staff; because, as I say, I have got fifteen hundred

employees, and as Commissioner of the Department,: it

is impossible for me—although the work is done under

my direction—it is impossible for me to supervise every-

thitig.that goes on in the Department. - |

Q. Wellin your. terms then, sir does the term ‘‘fre-

quently’’ mean once a year, once “every two years, or

A. I think that it would all depend under the circum-

stances. I think that each case would have to stand on

its own. er : :

Q. In other words, some circumstances frequently could

mean once a year? ny: | .

. A. No, sir, I would. not consider that to be frequently

at all. 20 au

Q. What would you consider to be frequently?

A. I would consider to be frequently at least once

a week. ' :

Q. And if the case was closed because. someone had

visited a recipient less than once a week, then that case

would have been erroneously closed; is that night?

85 ;

[30] A. Well, I would think that anything less than once

a week would not be considered by me as frequent.

Q. Do-you know whether the caseworkers consider 0 once

a week as frequent? .

A. I don’t know. We sent out, we have serit out elati-

fying material on this. I don’t know {hat we have ever

gotten down to specifically saying ‘what the word ‘‘fre-

quently’’ is; because the word frequent, as you know, can

~ have many, many interpretations. |

Q. Do you have any material which you sent out in-

_terpreting that particular clause of the Substitute Parent

regulation?

A. I don’t know whether we do or not. Let me ask

Miss Bryan. For the record, I think this policy, the people

‘ who lave been removed, I think that the poliey has been

interpreted very conservatively.

Q. When you- - interpreted invicta, is you

mean——_ ~*

A. I think that the Welfare workers in this State « are

people with a great deal of intelligence; and I think that

any policy that is promulgated by us here, and given to

the counties, is carried out in a conservative manner.

There have never been any intentions on the part of me

as Commissioner, or any of my workers to purposely re-

move people that we considered to be eligible for public

[31] assistance. There has never been. any head hunting

on our part. There ought to be more of it; and if there

were, in the whole country, I think that people would be

more receptive to the welfare stern! than what saad

are right now. .

Q. When you use the term ‘‘regalarty*? in the dene: ‘to

that agreement, what did you mean by that term?

Mrs. Stapp: You are looking at the policy itself?

Mr. Garbus: Yes. It is the next to Exhibit ‘‘A”’ of the

* agreement. It is Exhibit ‘‘A’’ to the complaint.

The Witness: Now, would you ask the question again,

Mr. Garbus?

——, D SS ee ee a wipsccas . et ee gna De ea Bate

Mr. Garbus: Sir, could you mgread the question! |

(The Reporter re-read the question.) —

The Witness: Well, that is what I am ie to find.

‘Where is the.word ‘‘regularly’’ used at here, and in what

paragraph are you talking about? Where is the word,

“‘regularly’’ used at, Mr. Garbus?

Mr. Garbus:, Let’s .go off the record.

(Off record discussion. )

Mr. Garbus: All right, back on the record.

- The Witness: Well, if we are talking about regularly,

about living in the home regularly, we are talking about

being there most of the time when he is not [32] working.

Now, if you want to break it down to where we are talk- .

ing about thirty per cent, twenty per cent, or sixty per

cent, I don’t know. I say, I think each case, I think each

case under the varying circumstances, would have to

stand ‘on its own.

-Q. And your Department hasn’t formulated a _ .

policy for what is regularly——

‘A. For what is the word, ‘regularly?’

Q. Yes. °

A. No, sir

Q. What is frequently?

A. Nor what is frequently. . . I don’t think that oe |

has been in regard to the word “‘frequently”’ or the word

“‘regularly. 2°

Q. You have already established for ‘the language for

the, quote, ‘‘purpose of cohabitating’’ end quote, means

sexual relationship; is that right?

A. Tome C;tC«‘(<“

Mr. Stapp: I am going to object to this; because he said

that it included all of the meanings that thé Black Law

Dictionary gave: in other —- that would be one of

them. .

The Witness: It includes cohabitation

nls,

Q. (By Mr. Garbus) What else does it include?

A. Well, as I say, it includes cohabitation not- only in |

the: aie, but out of the home.

[33] (Off record discussion.)

Q. With respect to allegation in paragraph three——

A. Let me say this for the record, too, Mr. Garbus:—We _

have got a regulation here just like the Federal Govern-

ment. If you get down to the interpretation of particular.

words, such as the word frequent or such as the word

regular, then I think, with the directives that they send

down, that they expect any of these words to be inter-

_ preted with- reasonableness: and I think that when we

talk about the word frequent, or when we talk about the

word regular, we are talking about something, that I

think each individual case has on its own so to stand,

has to stand on its own; and where one case might be

considered frequent or regular, it may not be considered

frequent or regular in the other circumstances.

A. Well, for example, we may have a situation of a .

who is a traveling salesman; although he lives, say in

the city of Montgomery, his job carries him away from

the city most of the time during the week. And then if

the man comes home on Friday night, and he stays with

- @ woman all week end, then I would consider that to be

frequent or regular. Whereas another situation might

have a man who is not a salesman. ,

-Q: How about a man who is a salesman and he comes

[34] ‘into Montgomery one night a week and stays with

- the woman, is that regularly or frequently?

A. I told you a few minutes ago that in my opinion

that’if he was with a woman at least once a week, and

he went to the home and lived in the home, or there were

‘circumstances there that would lead a reasonable person —

to think that the man was having the privileges of a

— 88 —

husband:—And there may be situations where a man

comes in once a week and there may not be such a rela-

tionship there, that would lead such a person to think ~

that he had the responsibility of a husband.

Q. How about a traveling salesman that comes in once

a month then and act with a family, would that be .

sufficient? :

A. I don’t think it would a no, sir, ‘I sure don’t: And

I would hate, I couldn’t tell you truthfully whethér or -

not there has been anyone- cut off of the welfare program °

in this State because of it; but if they have been, then I

would say that the policy has not been — with

reasonableness. :

Q. Now, with respect to the third annie of the Substi-°

| tute Parent policy, the policy states, ‘‘He does not fre-

quent the home, but cohabits with the child’s natural or

adopted mother elsewhere,’’ end quote. Now, with the

‘term cohabit as used there, does it: have any meaning

other [35] than sexual relationship? :

Q. Well, I think, I think that when you get out of the

home, that the policy would be interpreted more from a |

standpoint of sexual relationship than it “or be if they,

were living in the home.

Q. So in these in so far as conduct outside of the home

is concerned’ about, the factor which would require the

“ implementation -of the Substitute Parent ene — be

sexual relationship? |

A. That would be one of thei

— Q. What are the other relationships?

—(Q. What are the other factors? _

‘ A. I don’t know what some of the other factors would

be. AsI say, each individual case would stand on its own.

I think that you would have to take the whole thing and

take a look at the case record, and from‘that try to reach

a reasonable solution as. to whether or not—Well, cer-

» ever -—.

ee oa

alain. I think if there was 3 nd cohabitation outside of the

‘home, that it would be insufficient to remove any one.

' Q. When you say no nn you mean no sexual

relation——

A. in that particular respect, 1 mean sexual relation-

ship. ~

136) Q. And so if a man and a woman went out for one

evening once a month, but did not have a sexual" relation

ship, and he did not ‘live in the home——.

A. Well, 1 will say that if they went out once a month

- and they had sexual relationship out of the home, that-.

this policy right here ought not to bé interpreted as that;

and if I, as Commissioner, is shown that it has ever been

- interpreted like that, I will immediately see that the people.

are put back on the welfare rolls, These policies, - these

policies, in my opinion, and our instructions have been

that these policies be interpreted with reasonableness.

_ Q. With respect to the—withdraw that.- Do you know

how many cases that were closed because of a substitute *

parent relationship, were subsequently re-opened, and as- —

' sistance given upon a showing that the. re termi-

nated?

. <A. I don’t know that we have Satins, but I bie that

there have been many, many of them, because I have ruled

_ personally on some of the cases. where there was some

controversy and where it had been brought to our atten-

tion either through some of your eivil. rights organizations,

or.by members of the Legislature. When these cases are

called to my attention, I of course naturally look into them.

Many ofthese things are dene routinely.

[37] Q. But’as I understand your testimony, you have no

information concerning the number of cases in which a

mother denied aid because of the implementation of the

Substitute Parent policy has subsequently re-applied?-

A. No, I don’t. I don’t guess we have any figures; but

I know that all of the people who were removed, as a

result of this paler, were ngfified, and are notified as a

matter of policy, that they can be put back on the welfare

rolls provided they show that the ‘relationship has been

broken. tees ms . ees

Q. If they show that the relationship has been broken?

A. That’s right. Sas |

Q. How. were they notified of this?

A. They were notified by letter.

Q. And does this letter go out immediately after the

person is cut off? ~ cae

A. Yes, it does. I think that we have copies of it avail-

able, too. | |

Q. Does the Gase worker contact the person who has

been cut off, and discuss with the person who has been cut

_ off the manner in which the person can be restored to aid?

A. I don’t know. I know that they are notified, and

_ then I know that we sent letters to all-of the ppople. This

- was one of the things that the Federal Government

[38] asked us to do, was to notify these people who had

been cut off; and I believe that this came about as a re- -

‘sult of our discussion with Fred Steininger. I believe that

that was one of the things that we agreed to do. ,

_-Mr. Garbus: Mrs. Stapp, will you furnish me with that

letter? ‘afl |

_ Mrs. Stapp: The letter that the worker sends, ‘or the | |

State letter, the administrative letter?

Mr. Garbus: Yes. |

Mrs. Stapp: All right.

Q. (By Mr. Garbus) So it is fair to say, Mr. King,

that so far as you know, there are no cases where a per-

son who had been cut off,from aid, had ever submitted

evidence showing that the relationship had been discon-

tinued, with the result that that person was restored to

aid? -

A. Yes, I know that there are some cases. I know that

re , there are some cases, because I have been asked to rule ~

on the cases myself. , /

Q. I am not talking now about appeals—— ~

—o1— Pi

' A. I am not talking about appealed cases. I am talking

about cases where the members of the NAACP or some

of the civil rights organizations called it to my attention

personally: I have asked for the files: I have looked at

the files myself. There have been cases. 7

Q. Were there any cases where some organization had

[39] not called it to your attention, where a person on

her own has obtained the evidence necessary to show the

relationship had been discontinued?

A. Yes, there are some; but I don’t know if we have

any statistics on it, but I know that there are cases of re-

instatement. .

Q. Do you have any idea what percent of the cases

closed——

A. Have been re-instated?

Q. Have been re-opened or re-instated because the

recipient has been able to show that the relationship had

been discontinued?

A. I don’t have any statistics to that effect.

(Off record discussion. )

Mr. Garbus: Back on the record.

Q. (By Mr: Garbus) Do you-know, Mr. King, in how

many cases affidavits were submitted by law enforcement

officials, ministers, neighbors, or grocers in the attempt of

the recipient to show that the nn had been dis-

continued ?

- A. No, sir, I don’t have any breakdown on ie but

_ I know that there have been some probably in every cate-

gory that you talked about. I know that these people have —

been notjfied and how to get back on, and our workers are

also trying to help them get back on.

[40] Q. Do. you know of any appeals that were ‘taken from -

the denial of aid because of the existence of a substitute

father?

A. I think that we have got—I know of one, it is: ; Syl

vester Smith, Mrs. Sylvester Smith was one——

Mrs. Steno: She never took an appeal.

The Witness: Oh, I thought that there was an appeal.

Q. (By Mr. Garbus) Other than Mrs. Sylvester Smith,

who never took an appeal, do you know of anyone else who

had ever been cut off because——

A. I think; I think that there have been some cases

before me on appeal. I can’t recall them right now. ~

Q. How many would you say?

A. There would be very few, but I know that there

- have been some cases.

Q. By very few, you mean more or le

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