Appendix — Dandridge v. Williams

Supreme Court brief1970

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Text

Docket Entries

Complaint .

Complaint — Exhibit A

Exhibit B!

Exhibit Bz

Exhibit B®

Exhibit B-

Exhibit B5

Exhibit B®

Exhibit B/

Exhibit B®

Memorandum in Support of Plaintiffs’ Motion For A

Temporary Restraining Order and A Prelimi-

nary Injunction

Supplementary Memorandum in W of Plain-

tiffs’ Motion For A Temporary Restraining

Order and A Preliminary Injunction

Amended Motion To Dismiss

Memorandum or Law in Support of Defendants’

Amended Motion to Dismiss

Stipulation of Facts

Stipulation — Exhibit 1

Exhibit 2

Proceedings in Open Court, June 24, 1968

Proceedings in Open Court, June 25, 1968

Initial Opinion

Motion to Amend Findings of Fact and Judgment or

in the Alternative to take Additional Testimony,

or for A New Trial, or in the Alternative to

Alter or Amend the Judgment

PAGE

Exhibit to Defendants’ Memorandum in Support of

Motion to Amend Findings of Fact and Judg-

ment or in the Alternative to Take Additional

Testimony, or for a New Trial, or in the Alterna-

tive to Alter or Amend the Judgment—

Exhibit A (Excerpts from) 100

Exhibit J to Exhibit ....................... 116

Exhibit K to Exhibit 3 119

Exhibit C 120

c ͤͤ TT 126

Exhibit E (Excerpts fromm) 127

OE PRS ˙ AAA PEERS 147

Exhibit A to Exhibit F. 163

Exhibit 6 ae 165

r „

wen eae Cc

Proceedings in Open Court, January 3, 199 195

Exhibits to Memorandum of Plaintiffs in Opposition

to Defendants’ Motion

Exhibit A! (Excerpts from) 203

Exhibit A? (Excerpts from) 204

00 ˙ A — dawtheudts 206

Exhibit B? (Excerpts from) 208

NS a i otra acct ckinccsapatinerindsiics ccaaninaes 208

%%% 209

, ̃ tet 213

Supplemental Memorandum of Defendants in Sup-

port of Motion for Reargument 9 214

Attachments to Supplemental Memorandum of De-

fendants in Support of Motion for Reargument—

ment—

Excerpts from:

Cohen, Factors Influencing the Content

of Federal Public Welfare Legisla-

Cohen & Ball, The Public Welfare

Amendments of 1962

Hearings before the Committee on

Ways and Means

Supplemental Opinion on Motion

Order

DOCKET ENTRIES

United States District Court for the

District of Maryland

1968

Feb. 28—Complaint, request for a Three-Judge Court

and Exhibits A, and B-1 through B-8, inclusive, filed.

Feb. 28—(Issuance of process withheld — see letter on

file).

Feb. 28—Points and Authorities in support of Applica-

tion for a Three-Judge Court, filed.

Feb. 28—Motion of Plaintiff, Linda Williams, and her

minor children, Affidavit and Order (Thomsen, C. J.) grant-

ing leave to file in forma pauperis, filed.

Feb. 28—Motion of Plaintiffs, Junius Gary and Jeanette

Gary, and their minor children, Affidavit and Order

(Thomsen, C. J.) granting leave to file in forma pauperis,

filed.

Feb. 28—Motion of Plaintiff, Linda Williams and her

minor children, for temporary restraining order and pre-

liminary injunction and Affidavit in support thereof, filed.

Feb. 28—Motion of Plaintiffs, Junius Gary and Jeanette

Gary, and their minor children, for temporary restrain-

ing order and preliminary injunction and affidavits (2) in

support thereof, filed.

March 1—Request of Plaintiff to issue summons as to

Defendant, Esther Lazarus, filed.

March 1—Summons issued as to Defendant, Esther La-

zarus. (Summoned — 4 March 1968).

March 1—Notification and Request of the Court (Thom-

sen, C. J.) for designation for Three Judge Court, filed.

March 18—Designation of Haynsworth, C. J., Fourth

Cir., of Three-Judge District Court, designating Winter,

Cir., J., and Thomsen and Harvey, JJ., filed.

March 21—Answer of Defendant, Esther Lazarus, Direc-

tor of Public Works, etc., filed.

March 21—Motion of Defendants, Edmund P. Dandridge,

Jr., Chairman of the State Board of Public Welfare; Ra-

leigh C. Hobson, Director of the State Department of Pub-

lic Welfare; and Mrs. Barbara Stevenson, Howard W. Mur-

phy, Julius O. Shuger, Dr. W. Richard Ferguson, Lester

S. Levy, Nicholas C. Mueller, Calhoun Bond and Mrs.

Charles D. Harris, members of the State Board of Public

Welfare, to Dismiss, and Memorandum in Support thereof,

filed.

March 21+-Answer of Defendants, Edmund P. Dan-

dridge, Jr., Chairman of the State Board of Public Wel-

fare; Raleigh C. Hobson, Director of the State Department

of Public Welfare; and Mrs. Barbara Stevenson, Howard

W. Murphy, Julius O. Shuger, Dr. W. Richard Ferguson,

Lester S. Levy, Nicholas C. Mueller, Calhoun Bond and

Mrs. Charles B. Harris, members of the State Board of

Public Welfare, filed.

March 25—Amended Answer of Defendant, Esther La-

zarus, Director of Public Works, etc., filed.

April 1—Memorandum of Plaintiffs in opposition to De-

fendants’ Motion to Dismiss, filed.

June 7—Memorandum of Plaintiffs in support of Motion

for Temporary Restraining Order and Preliminary 8

tion, filed.

June 21—Amended Motion of Defendants to Dismiss,

and Memorandum in support thereof, filed.

June 24— Hearing on Motion of Defendants to dismiss

and to abstain, before the Court, Winter, Circuit J., Thom-

sen, C. J. and Harvey, J

June 24—Argued and held sub-curia.

June 25—Stipulation of counsel re Statement of Facts,

filed.

June 25—Oral opinion of the Court rendered.

June 26—Order (Winter, Cir. J., Thomsen, C. J., and

Harvey, J.) denying Amended motion to dismiss, filed.

July 16—Supplementary Memorandum, Attachment and

Amended Affidavits (3) in support of Plaintiffs’ Motion

for a Temporary Restraining Order and Preliminary In-

junction, filed.

Aug. 6—Appearance of Sheldon London, Esquire, as co-

counsel for Defendant Esther Lazarus, Director of Public

Welfare for the City of Baltimore, filed.

Aug. 6—Reply Memorandum of Defendants, State Board

of Public Welfare and Raleigh C. Hobson, State Depart-

ment of Public Welfare, filed.

Sept. 11—Transcript of Proceedings before the Court

(Winter, Circuit, J., Thomsen, C. J., and Harvey, J.) on

June 25, 1968, filed.

Dec. 13—Opinion (Winter, Cir. J., Thomsen, C. J., and

Harvey, J.), filed.

Dec. 23—Motion of Defendants to amend Findings of

Fact and Judgment, or in the alternative to take additional

testimony, or for a New Trial, or in the alternative to alter

or amend the Judgment, filed.

1969

Jan. 2—Answer of Plaintiffs to Defendants’ motion to

amend findings of fact and Judgment, etc., filed.

Jan. 3—Hearing on Motion of Defendants to amend Find-

ings of Fact and Judgment, or in the alternative to take

additional testimony, or for a New Trial, or in the alterna-

tive to alter or amend the Judgment, and Answer of Plain-

tiffs, thereto, before (Winter, Cir. J.) (Thomsen, C. J.)

and (Harvey, J.).

Jan. 3—Argued-held sub-curia. Briefs to be submitted.

Jan. 10—Memorandum of Plaintiffs in opposition to De-

fendants’ Motion to amend Findings of Fact and Judgment,

etc., and Exhibits A through G, filed.

Jan. 13—Stipulation of Counsel, re: Facts, and attach-

ments, filed.

Jan. 20—Motion of Sheldon London to strike his appear-

ance and to enter the appearance of J. Warren Eberhardt,

Esquire, as attorney for Mayor and City Council of Balti-

more; and Order (Thomsen, C. J.) granting leave as

prayed, filed.

Jan. 24—Reply Memorandum of Defendants in support

of motion for Re-Argument, etc. and attachments, filed.

Jan. 27—Motion of Defendants to Amend Findings of

Fact and Judgment or in the Alternative to take additional

testimony, or for a New Trial, or in the Alternative to alter

or Amend the Judgment, and Exhibits A, B, C, D, E, F, G,

H. I, J, and K,. attached thereto, filed. (Filed separately).

Feb. 6—Supplemental Memorandum of Defendants in

Support of Motion for Reargument, and Attachments,

filed.

Feb. 25—Opinion and Order of Court (Winter, Circuit

Court Judge), (Thomsen, Chief Judge United States Dis-

trict Court) and (Harvey, Judge U. S. District Court)

granting in part and denying in part the Defendants mo-

tion to amend findings of facts and judgment, grant a new

trial. Or receive additional evidence and alter or amend

judgment, filed.

March 5—Memorandum of Defendants in Support of

Proposed Order and Proposed Order attached, filed.

March 11—Memorandum of Plaintiffs in opposition to

Defendants proposed order, filed.

March 14—Appearance of J. Michael McWilliams, Esq.

co-counsel for defendants (except Esther Lazarus), Order

of attorney, filed.

March 18—Order of Court (Winter, Circuit J., Thom-

sen, C. J. and Harvey, J.) permanently enjoining the De-

fendants as set forth etc., filed.

March 21—Notice of Appeal of Defendants, to the Su-

preme Court of the United States, filed. (copies mailed by

counsel. )

April 3—Motion of Plaintiff Linda Williams to amend

title of action to include additional members of the Mary-

land State Board of Social Services (formerly Maryland

State Board of Public Welfare) as named parties defend-

ant herein: Julian P. King, Lester S. Levy and Howard H.

Murphy and to correct all further entries in the case to

conform to said amendment, etc. and Order (Winter, J.)

Circuit Court, Judge granting leave as prayed, filed.

May 15—Tanscript of Proceedings before the Court

(Winter, Cir. J., Thomsen, C. J. and Harvey, J.) on June

24, 1968, June 25, 1968 and January 3, 1949, filed. (filed

separately ).

United States District Court for the

District of Maryland

Civil Action No. 19250

Linda Williams, et al.,

— Plaintiffs.

Edmund P. Dandridge, Jr., Chairman of the Maryland

State Board of Public Welfare, et al.,

Defendants.

COMPLAINT

The jurisdiction of this Court is invoked pursuant to

Title 28 U.S.C. §§2281, 2284, and 1343(3). This is a suit

for injunctive relief authorized by Title 42 U.S.C. §1983

to be commenced by any citizen of the United States or

other person within the jurisdiction thereof to redress the

deprivation under color of any state law, statute, ordinance,

regulation, custom or usage, of those rights, privileges and

immunities secured by the Constitution of the United

States. The rights, privileges and immunities sought herein

to be redressed are those secured by the due process and

equal protection clauses of the Fourteenth Amendment to

the Constitution of the United States and the Federal Social

Security Act, 42 U.S.C. SS60 1-609. 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.

This is a proper case for determination by a three-judge

district court under 28 U.S.C. §2281, since it seeks an in-

junction to restrain the enforcement, operation and execu-

tion of the regulation set forth in the Maryland Manual of

the Department of Public Welfare, Part II, Rule 200, Sec-

tion VII,1. commonly referred to as the “maximum grant”

regulation (a copy of which is attached hereto as Exhibit

A) by restraining certain officials of the State of Maryland

from the enforcement and execution of such state-wide

administrative regulation on the ground of its unconsti-

tutionality under the Constitution of the United States

and on the ground of its conflict with the aforesaid federal

statutes.

II.

This is a proceeding for an injunction enjoining the

defendants from continuing to enforce or otherwise apply

its maximum grant” regulation. This is also a proceeding

for a declaratory judgment that defendants’ “maximum

grant” regulation:

(A) Contravenes the equal protection and due process

clauses of the Fourteenth Amendment to the Constitution

of the United States; and

(B) Is contrary to the purposes of the federal and state

Aid to Families with Dependent Children program as

expressed by the Federal Social Security Act (42 U.S.C.

§601 et seq.) and the statutes of the State of Maryland.

(Article 88A, §§44A, and 49, Ann. Code of Md., 1957 ed.).

III.

This is a class action authorized by Rule 23 (b) (2) of

the Federal Rules of Civil Procedure. The class which

plaintiffs represent are all persons similarly situated who

are needy parents of dependent children and their needy

dependent children eligible for Aid to Families with De-

pendent Children (hereinafter referred to as AFDC) and

who are or may be subjected to the onerous limitations of

the “maximum grant”. This class is so numerous as to

make joinder of all members impracticable; there are

questions of law or fact common to the class; the claims of

the plaintiffs are typical of the claims or defenses of the

class, and the plaintiffs will protect and represent the

interests of the class. The defendants in their administra-

tion of the “maximum grant” have acted in a way gen-

erally applicable to the class plaintiffs represent.

IV.

The named plaintiffs in this case are:

A. Mrs. Linda Williams, a Negro adult, 33 years of age,

and a citizen of the United States and Maryland, residing

in the City of Baltimore, who is entitled to receive AFDC

from the State of Maryland. She is the sole support of her

eight children:

Name Age Date of Birth

Dorothy 16 November 1, 1951

Linda Gayle 14 October 11, 1953

Mildred 11 May 6, 1956

James 10 June 1, 1957

Anthony 0 October 18, 1958

Ronnie 7 October 9, 1960

Angela 5 October 29, 1962

Wanda 4 June 4, 1963

All of these children, live permanently with Mrs. Wil-

liams in a place of residence maintained by her as their

home. The father is continuously absent from plaintiff's

home. Plaintiff's health is very poor, and she is presently

suffering from a serious breast condition that has already

required five surgical procedures. In addition, one of her

children, Ronnie, has required hospital care and attention

and continuing medical supervision, for convulsions from

which he has suffered since his early childhood.

B. Junius Gary and Jeanette Gary, his wife, are Negro

adults and citizens of the United States and Maryland,

residing in the City of Baltimore, who are entitled to re-

ceive AFDC from the State of Maryland. Mr. Gary is the

sole support of his eight children:

Name Age Date of Birth

Junius 11 February 20, 1957

Catherine 10 January 8, 1958

Anthony 9 November 4, 1958

James September 21, 1959

Lynn Dora November 29, 1960

Pamela November 18, 1961

Mark November 23, 1962

Thelma November 14, 1963

All of the children of Mr. and Mrs. Gary live with them

in their place of residence maintained as their home. Mr.

Gary suffers from a severe neurological condition, which

causes him to have seizures, lose consciousness, and is

completely disabled from working. Mrs. Gary is required

at home to care for her children, and is also in ill health,

being treated at a hospital clinic for hypertension and

painful conditions of her arms and legs. The only source

of income for Mr. and Mrs. Gary and their children, is the

maximum grant of $250 per month which they receive

from AFDC.

The named defendants are: Mr. Edmund P. Dandridge,

Jr., Chairman of the Maryland State Board of Public Wel-

fare; Mr. Raleigh O. Hobson, Director, State Department

of Public Welfare; Mr. Calhoun Bond, Mrs. Ralph O.

Dulany, Dr. W. Richard Ferguson, Mrs. Charles D. Harris,

Mrs. Julian P. King, Mr. Lester S. Levy, Mr. Howard H.

Murphy and Mr. J. O. Shuger, members of the Maryland

State Board of Public Welfare, and Esther Lazarus, Di-

rector of Public Welfare for the City of Baltimore.

VI.

At all times hereinafter mentioned, the State of Mary-

land in order to receive federal funds for the AFDC

programs, was required by the provisions of 42 U.S.C.

§§601-609 to have formulated and submitted to the Secre-

tary of the United States Department of Health, Education

and Welfare for his approval a “state plan” for AFDC

consistent with the Constitution of the United States and

the provisions of the Federal Social Security Act (42 U.S.C.

§§601 et seq.).

VII.

Part II, Rule 200, Section VII 1. of the Maryland Manual

of the Department of Public Welfare provides that “(T)he

amunt of the grant is the resulting amount of need when

resources are deducted from requirements as set forth in

this Rule, subject to a maximum on each grant from each

category:” The maximum grant permitted under AFDC

in Baltimore City is $250 per month regardless of the size

of the family unit and its actual need. Public assistance

standards applicable to the City of Baltimore have been

formulated (these schedules are attached hereto as Exhibit

B). These schedules provide, inter alia, a standard for

determining the cost of subsistence needs, shelter, insur-

ance premiums, school supplies, laundry and clothing. The

Department of Public Welfare uses these standards in

determining the amount of an AFDC grant.

VIII.

Defendants acting under color of authority vested in

them by the laws of the State of Maryland in the enforce-

ment, operation and execution of the maximum grant

regulation have pursued and are presently pursuing poli-

cies and practices which violate the constitutional rights

of plaintiffs and the class they represent and which are

contrary to the expressed policy of the Federal Social

Security Act as follows:

A. Under the maximum grant regulation a family no

matter what its size may receive no more than $250 per

month in AFDC benefits. Thus the maximum grant regu-

lation prevents the satisfaction of the needs of all children

in a family of seven persons or more, as plaintiffs herein.

For example, according to the standards of subsistence

(food, clothing, and household supplies) and shelter for-

mulated by the Maryland Department of Public Welfare a

family of seven persons ‘should receive $254. per month

and a family of eight should receive $280. per month. This

does not include the cost of insurance premiums, school

supplies, and laundry since the amount would vary with

the age of the children; the amount of need would be

greater if these items were included. This disparity be-

tween the amount that should be received according to

the standards of subsistence and shelter and the amount

actually received because of the limitation of the maximum

grant increases with the size of the family. Children in

smaller families of six persons or less are not so affected by

the maximum grant e.q., the family of six persons may re-

ceive the full amount determined by the Department of

Public Welfare to be necessary to satisfy their subsistence

and shelter needs since this amount ($229) is less than $250.

Plaintiffs and their children and the class they represent

are denied rights guaranteed by the equal protection clause

of the Fourteenth Amendment since the maximum grant

regulation has the effect of treating needy children dif-

ferently based on an arbitrary standard not related to the

purpose of AFDC — the size of their family.

B. The express policy of the Federal Social Security

Act (42 U.S.C. §§601 et seq.) is to “strengthen family life.”

This maximum grant regulation fails to effectuate this

policy and indeed it encourages the disruption of families,

since (as will hereafter be demonstrated) the needs of a

child in a large family can best be satisfied if the child were

to leave the family and live with a relative.

C. The maximum grant regulation complained of herein

contravenes Maryland’s expressed purpose of AFDC, which

is to strengthen family life (Article 88A, §44A, Ann. Code

of Md., 1957 ed.) since it encourages the disruption of

families. Its limitation makes the amount of assistance

insufficient to provide each child receiving AFDC with a

reasonable subsistence compatible with decency and health

as required by Article 88A, §49 of the Annotated Code of

Maryland.

IX.

Under the maximum grant provision, plaintiffs are de-

nied an amount of assistance commensurate with the

standards of need established by the Maryland Department

of Public Welfare. (The schedules are attached hereto as

Exhibit B).

A. Mrs. Linda Williams, according to the standards of

need formulated by the Department of Public Welfare,

including the cost of insurance premiums, school supplies

and laundry, should receive $296.15 per month for herself

and her eight children, $46.15 more than the maximum

grant of $250 per month which she actually receives.

B. Mr. Junius Gary and his wife, Jeanette, according to

the same standards formulated by the Department of

Public Welfare, including the cost of insurance premiums,

school supplies and laundry, should receive $331.50 per

month for themselves and their eight children, $81.50 per

month moré than the maximum grant of $250 per month,

which they actually receive.

Two hundred fifty dollars ($250.00) per month is insuffi-

cient to provide plaintiffs with a reasonable subsistance

compatible with decency and health and is inadequate to

meet their minimum financial needs. After the payment of

their rent each month, the Garys have a mere $175 per

month to meet all of their needs for food and clothing and

heating of their home and this amount is grossly inade-

quate, often leaving Plaintiffs with no money to purchase

food, and putting their children to considerable embarass-

ment and disadvantage in school activity because of their

cast-off clothing and the other effects of poverty, which

sometimes causes them to miss school. The family has no

money, automobile, or other property of any kind save

a few items of old furniture and the inadequate clothing

they have been able to purchase. They are in serious debt,

particularly in regard to public utilities companies, which

has caused their gas and electricity to be shut off on

numerous occasions for failure to pay current charges,

Their home is heated by gas space heaters, and the cut

off of their utilities often leaves them with no heat in

their home.

The maximum grant regulation denies to plaintiffs and

members of their class equal protection of laws in violation

of the Constitution since they are given : smaller assistance

grants per person than are other recipients under the

program on a basis wholly unrelated to the purpose

of the program. The amount a needy child receives varies

with the size of its family, so that children in smaller fami-

lies are in the preferred position of receiving much more

per child than children in larger families receiving AFDC.

Unhampered by the maximum grant, in a family of four

(one parent and three children), on the basis of subsistence

and shelter standards (since the cost of insurance and school

supplies varies with the age of the child) the parent and

each child receives assistance at the rate of $44.50 per

month; in a family of five persons (one parent and four

children), $41.50 for the parent and each child; and in a

family of six persons (one parent and five children), $38.50

for the parent and each child. Since Mrs. Williams’ chil-

dren are in the position of being members of a large

family, each person receives assistance at the rate of $27.78

for the parent and each child, although according to

Maryland’s standards of subsistence and shelter they

should receive assistance at the rate of $32.16 per person.

Each person in Mr. Junius’ family receives assistance at

the rate of $25.00 per person although according to Mary-

land’s standards of subsistence and shelter they should

receive assistance at the rate of $33.15 person. (The parents

in each family receive the identical amount as each child.)

XI.

The maximum grant regulation encourages the disrup-

tion and separation of families in the following ways:

A. Mrs. Williams receives $250.00 per month in AFDC

payments. Divided by the number of persons in the assist-

ance unit, this amounts to $27.78 per person. If, however,

she were to place two of her children of 12 years of age or

over with relatives, each child so placed would be eligible

to receive $79.00 each as an assistance unit, in accordance

with schedule AA, attached hereto; with two of her chil-

dred out of her family, she would still be eligible to receive

the maximum grant of $250.00; however, each of the

remaining children would receive aid at the rate of $35.71

per child. Thus, she and her eight children would then be

receiving over-all benefits of $408.00; $158.00 above the

maximum grant, constituting an anomolous situation of

benefits accruing as a result of the break-up of the family.

B. Mr. and Mrs. Gary receive $250.00 per month in

AFDC payments. Divided by the number of persons in the

assistance unit this amounts to $25 per person, per month.

If, however, they were to place two of their children be-

tween the ages of six and twelve with relatives or

strangers, each child so placed would be eligible to receive

$65 each as an assistance unit, in accordance with schedule

AA, attached hereto; with two of their children out of

their family, they would still be eligible to receive the

maximum grant of $250; however, each of the remaining

members of the assistance unit would receive aid at the

rate of $31.25 per person. Thus, Mr. and Mrs. Gary and

their eight children would then be receiving over-all

benefits of $380, $130 above the maximum grant, consti-

tuting an anomolous situation of benefits accruing as a

result of the break-up of the family.

Because of the operation of the maximum grant regula-

tion, families are rewarded if they break up their families

and place their children outside the home with relatives or

others, since the amount received per child is increased

and the maximum grant may be circumvented. Plaintiffs

and the class they represent have the option of keeping

their families together, the goal expressed by the Federal

Social Security Act, or placing their children with relatives

or strangers in order that their needs be satisfied. Failure

by the Maryland Board of Public Welfare to accommodate

the actual needs of children of necessity, results in the

disruption of family solidarity.

XII.

Under the Maryland AFDC status and the “maximum

grant” provisions complained of, enforced, applied and

implemented by defendants, plaintiffs are denied a minimal

standard of living commensurate with the minimum

standard of need established by the State of Maryland

Department of Public Welfare for a family of eight

children, as prescribed in the standards established by the

Department of Public Welfare, which sets said minimum

for Linda Williams and her family at $296.15 per month for

herself and her eight children, and at $331.50 per month

for Junius Gary and his wife and eight children, as more

particularly described in the schedules attached hereto as

Exhibit B.

The “maximum grant” provisions herein complained of

as enforced, applied and implemented by the defendants,

their predecessors in office, agents and employees, bear no

reasonable relation to and contravene the purpose and

intent of the Federal Social Security Act, Title 42, United

States Code, Section 601, which is to furnish assistance to

needy dependent children, to maintain and strengthen

family life, and to help the parents of such children to

attain personal independence and self-support, in that said

provisions:

(a) result in a discriminatory lack of uniformity in the

amount of assistance available to individual children and

parents with similar needs;

(b) penalize children and parents in large families and

encourage the break-up of such families into small units;

surate with the minimum standard of assistance and

standard of need as promulgated by the Maryland State

Welfare Department as determined by its own economic

calculations.

(d) deny plaintiffs and other large families receiving

public assistance even sufficient assistance as will meet

minimum nutritional standards and thereby gradually ef-

fect a program of starvation.

The “maximum grant” herein complained of, enforced,

applied, and implemented by defendants, their predeces-

sors in office, agents and employees, violates and is re-

pugnant to the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution in that by

imposing an arbitrary restriction on the amount of assist-

ance available to any family regardless of the individual

needs of particular children or parents said provisions

discriminate against plaintiffs and all others similarly

situated, because of the size of their families, in a manner

which bears no substantial, reasonable, or fair relation to

the purposes and intent of the federal and state AFDC

legislation under which said provisions operate, and there-

by create arbitrary, irrational, and discriminatory classi-

fications which deprive plaintiffs and members of their

class of equal protection of the laws.

Defendants’ enforcement, application, and implementa-

tion as to plaintiffs of the “maximum grant” provisions

herein complained of has caused plaintiffs extreme hard-

ship, suffering, and anxiety, including inadequate food,

clothing, and shelter, and will continue to suffer severe and

irreparable injury to their health and well-being, and to

their family life, as a result of the enforcement, application,

and implementation of the “maximum grant” provisions

until said provisions are declared unlawful and unconstitu-

tional and their enforcement enjoined by this Court.

XIII.

Finally, the enforcement, application and implementa-

tion of the “maximum grant” provisions by the defendants,

has violated and continues to violate the due process clause

of the Fourteenth Amendment to the United States Con-

stitution, as applied to the plaintiffs, in that it violates the

due process guarantee of marital privacy. All of the

children of the plaintiffs, Junius Gary and Jeanette Gary,

his wife, and the plaintiff, Linda Williams, were born be-

fore application was made for welfare benefits, and no

additional children have been born to the plaintiffs since

they began receiving an AFDC grant from the defendants;

nevertheless, the amount of their grant is less than the

adequate assistance for minimal food and shelter needs

as computed by the defendants, even though the plaintiffs

freely choose a large family before receiving AFDC assist-

ance. Thus the “maximum grant” provision intrudes on

the right of marital privacy of the plaintiffs both before and

during the period of AFDC assistance hy imposing an un-

constitutional burden on the exercise of a constitutional

right by the plaintiffs, by denying an amount of assistance

equal to the actual needs of the families of the plaintiffs.

XIV.

No adequate administrative remedy, or adequate remedy

at law, is available.

Wherefore, plaintiffs respectfully request the Court, on

behalf of themselves and others similarly situated, to:

1, Convene a three-judge district court to determine

this controversy pursuant to Title 28 U.S.C. §§2281 and

2284;

2. Enter a preliminary and permanent injunction:

(a) prohibiting, restraining and enjoining defendants,

their successors in office, and all of their agents from

enforcing, applying or implementing said maximum grant

regulations;

(b) prohibiting payments of assistance which are less

than the minimum subsistence and shelter needs as estab-

lished by the Maryland Board of Public Welfare, and

ordering and requiring defendants to make welfare pay-

ments to plaintiffs and members of the class they represent

in accordance with minimum subsistence and shelter needs

as established by the Maryland State Board of Public

Welfare; and

in office, all of their agents, to furnish AFDC assistance to

Plaintiffs and all others similarly situated without regard

to said maximum grant regulations:

3. Enter a declaratory judgment pursuant to Title 28

U.S.C. §2201, declaring that said maximum grant regula-

tions:

(a) contravenes the purpose and intent of the AFDC

Program as explained in the Federal Social Security Act

(42 U.S.C. §§601 et seq.), and the Maryland Public

Legislation (Article 88A, §§44A and 49); and

(b) contravenes the equal protection and due process

clauses of the Fourteenth Amendment to the Constitution

of the United States, and for such further or alternative

relief as this Court may find to be just and equitable.

(Signatures of counsel and certificate of service.)

EXHIBIT A

Public Assistance Rule 200

VII — Amount of Grant and Payment

1, Amount — The amount of the grant is the resulting

amount of need when resources are deducted from

requirements as set forth in this Rule, subject to a

maximum on each grant from each category:

A. For local departments under any “Plan A” of

Shelter Schedule B $250

For local departments under any “Plan B” of

Shelter Schedule B $240.

Except that:

a. If the requirements of a child over 18 are in-

cluded to enable him to complete high school

or training for employment (III- 3, C), the

grant may exceed the maximum by the amount

of such child’s needs.

If the resource of support is paid as a refund

(V-2, F), the grant may exceed the maximum

by an amount of such refund. This makes con-

sistent the principle that the amount from pub-

lic assistance funds does not exceed the maxi-

mum.

B. A grant is subject to any limitation established by

any existing rule on insufficient funds.

. GPA or ADC-E is not Apailable — To supplement

full-time wages. To meet need due to being disquali-

fied for unemployment insurance. To supplement un-

employment insurance; except when the individual

receiving it is enrolled in an educational and/or train-

ing program to learn a skill needed to have oppor-

tunity for employment, acquire a new skill which is

in demand in the labor market, or improve an exist-

ing skill.

. Period Covered and Method of Payment — The

period covered by a grant shall be the calendar month.

The amount of the grant is calculated on a monthly

basis and is paid by check, unless otherwise specified

by local policy. It is paid for current need and may

not be paid for a past period excepting as specifically

permitted by the State Manual.

R. #312

5/67

II — Rule 200 — Page 20

EXHIBIT B.

Public Assistance

ScHEDULE A

STANDARD FOR DETERMINING COST OF

SUBSISTENCE NEEDS

I 11 111 IV *

Number of persone in — MoNTHLY Costs WHEN

assistance unit ve heat or Light 4% r Heat with Heat, cook- Heat 4 ou

(include unborn child wtttities cooking fuel or without ing fuel 4 utilities

aa an additional t luded light water heat- included

person) with with included ing included with

shelter shelter with shelter with shelter shelter

1 person living—

Alone ‘ oa $ 51.00 $ 49.00 $ 43.00 $ 40.00 $ 38.00

With 1 person 42.00 41.00 38.00 36.00 35.00

With 2 persons 37.00 35.00 34.00 33.00

With 3 or more per-

aS N 35.00 34.00 33.00 32.00

2 persons tiving—

Alone “a 82.00 76.00 70.00

With 1 other person 74.00 70.00 66.00

With 2 or more

other persons 70.00 68.00

3 persons living—

1 110.00

With 1 or more

other persons 106.00

1 . 140.00

5 persons 3 . 162.00

6 person . 181.00

235.00 231.00

259.00 256.00

284.00 281.00

24.50 24.50

Modification of Standard for Cost of Eating in Restaurant

Add $15.00 per individual.

R. #314

11/67 II — Rule 200 — Page 27

EXHIBIT B?

Public Assistance Rule 200

ScHEpuLe AA

STANDARD FOR ROOM AND BOARD ARRANGEMENT

FOR A CHILD

Modrury ALLOWANCE*

Kind of Care Room & Pre-added

Board Clothing Totals

Regular Care

Infant up to 6 $50.00 $ 9.00 $59.00

6 up to 12 50.00 15.00 65.00

12 and over 60.00 19.00 79.00**

Special Care N

Infant up to 6 $75.00 $ 9.00 $84.00

6 up to 12 75.00 15.00 90.00

12 and over 75.00 19.00 94.00**

Regular Care — t which requires the usual and ordinary supervision in the home.

Special Care t which requires unusual supervision and attention from a home

No other items allowable in the grant.

** When calculating need for mother of unborn child, add to maximum $24.50: $20.00

additional food allowance; $4.50 towards cost of layette.

R. #314

11/67 II — Rule 200 — Page 28

EXHIBIT B

Public Assistance Rule 200

Scuepute B — Pran A

STANDARD FOR DETERMINING COST OF SHELTER

Pian A to be used by the following local departments :

Allegany Baltimore City Cecil Prince George’s

Anne Arundel Baltimore County Montgomery

I 11 111 IV V

MonTBLY Costs WHEN

“Ne heat or Light 4% r Heat with Feat, cook- Heat 4 an

Boater of percene utilities cooking fuel or without 4 utilities

* 3 — — light sis bam included

with with included ingincluded with

shelter shelter with shelter with shelter shelter

1 or 2 persons $ 35.00 $ 37.00 $ 43.00 $ 46.00 $ 48.00

1 — —ů 35.00 38.00 43.00 47.00 49.00

1 35.00 38.00 43.00 47.00 50.00

5 or 6 persons 45.00 48.00 53.00 57.00 60.00

7 or more persons 45.00 49.00 53.00 57.00 61.00

R. #307

2-66 II — Rule 200 — Page 29

EXHIBIT B.

ScHepute B — Pian B

STANDARD FOR DETERMINING COST OF SHELTER

Plan B to be used by the following local county departments

Calvert Frederick

Caroline Garrett

Carroll Harford

Charles Howard

Dorchester Kent

Public Assistance

No heat or Light 4% Heat with

— of 8 utilities cooking fuel or without

assistance included included light

wnit with

shelter

1 or 2 persons

5 IE: —

5 or 6 persons

7 or more persons

R. #307

2-66 II — Rule 200 — Page 30

EXHIBIT Be

Scuepute E

STANDARD FOR DETERMINING THE COST

OF INSURANCE PREMIUMS

: Insurance “as paid” not to exceed a

Age of Individual maximum monthly cost per individual

$0.25

1.10

Public Assistance

™

Scuevute F

STANDARD FOR DETERMINING THE COST

OF SCHOOL SUPPLIES

Monthly Cost Per Child in School

$0.50

1.00

II — Rule 200 — Page 32a

EXHIBIT Be

Scuepute G

STANDARD FOR DETERMINING THE COST

OF SPECIAL DIETS

Monthly Cost

$19.00

Moderete fat high carbohydrate

high protein

Scuepute H

STANDARD FOR DETERMINING THE COST

OF LAUNDRY

Cost of laundry may not be added to Standard for Nursing Home Care

Size of Family Monthly Cost

One or two persons $2.00

Three or more 4.00

R. #306

11-65

II — Rule 200 — Page 32b

EXHIBIT B7

Public Assistance

ScHEDULE J

STANDARD FOR DETERMINING AMOUNT

OF RESOURCE IN FOOD

MONTHLY AMOUNT OF RESOURCE

For Specified Food Groupe

Milk Mak

4 Milk

Eggs Only

$ 6.75 $ 5.25

6.25 4.85

5.40 4.15

Each additional

person over 10

person

R #312

5-67

EXHIBIT B

Public Assistance Rule 200

ScHEDULE K

STANDARD FOR DETERMINING AMOUNT OF RESOURCES

IN CLOTHING

Number of Persons in Assistance Unit Monthly Amount of Resource

One person 8 8 4.50

2 persons 9.00

39 —96—ͤÄ2ͤð—, 3 14.50

4 persons 2 20.00

5 persons 24.00

6 persons — 28.00

7 persons LU 8 . 31.50

8 persons : 35.00

9 persons 2 38.50

10 persons a 42.00

Each additional person over 10 persons 3.50

R. #307

2-66 II — Rule 200 — Page 34

United States District Court for the

District of Maryland

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MO-

TION FOR A TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION

I. INTRODUCTION

This is a class action for declaratory and injunctive re-

lief brought by Plaintiffs who are recipients of public as-

sistance under the Maryland Program for Aid to Families

with Dependent Children, against public welfare officials

of the State of Maryland challenging the constitutionality

of the maximum grant provision, Rule 200 VII, 1. of the

Manual of the Department of Public Welfare. Rule 200 im-

poses an absolute limit on the amount of AFDC assisvance

to a family unit regardless of the actual need of the family

as computed under schedules issued by the State Board

of Public Welfare of the State of Maryland.

This court has jurisdiction to entertain this action since

plaintiffs seek to have a state-wide regulation declared un-

constitutional and to enjoin its operation on the grounds of

its repugnance to the United States Constitution. The

Court’s attention is also respectfully directed to the cases

cited in Plaintiffs’ Points and Authorities In Support of Ap-

plication For A Three-Judge Court, and in particular the

case of Smith v. King, 277 F. Supp. 31 (M.D. Alabama,

1967), probable jurisdiction noted, 390 U.S. 903 (1968), also

a suit for injunctive relief against enforcement of a state-

wide regulation, set forth in the Alabama Manual for Ad-

ministration of Public Welfare.

II. STATEMENT OF Facrs

Plaintiffs are members of a class composed of needy par-

ents of dependent children and their needy dependent chil-

dren, residing in the State of Maryland and eligible to re-

ceive public assistance under the Maryland Aid to Families

with Dependent Children (AFDC) Program. The amount

of this aid is and has been restricted and limited by the

application and enforcement of the “maximum grant” pro-

visions hereby complained of, to wit: Rule 200 VII 1., Mary-

land Manual of the Department of Public Welfare.

Plaintiff, Linda Williams, is an adult citizen of the United

States and a resident of the City of Baltimore, State of

Maryland. She is the mother and sole support of the Plain-

tiff children: Dorothy, age 16; Linda Gayle, age 14; Mil-

dred, age 12; James, age 10; Anthony, age 9; Ronnie, age 7;

Angela, age 5; Wanda, age 4; all of the children named live

with her in a place of residence maintained by her as her

home. The Plaintiff’s husband, Willie Williams, the father

of all the named children, is continuously absent from the

plaintiff's home, having deserted her after the birth of

their last child. Plaintiff has no income, resources, sup-

port or maintenance other than the public assistance which

she receives in the amount of $250 a month, which is the

maximum grant permitted under AFDC in Baltimore City,

regardless of the size of the family unit and its actual need.

The plaintiffs, Junius Gary and Jeanette Gary, his wife,

are adult citizens of the United States and residents of the

City of Baltimore, State of Maryland, and Mr. Gary is the

sole support of the Plaintiffs’ children: Junius, age 11;

Catherine, age 19; Anthony, age 9; James, age 8; Lynn

Dora, age 7; Pamela, age 6; Mark, age 4; Thelma, age 4.

All of the children of Mr. and Mrs. Gary live with them

in their place of residence maintained by them as their

home. Mr. Gary suffers from a severe neurological condi-

tion, which causes him to have seizures, dizzy spells and

loss of consciousness. He has been found to be completely

disabled from working. Mrs. Gary is required at home to

care for her children, and is also in ill health, being treated

at a hospital clinic for hypertension and painful condi-

tions of her arms and legs. The Plaintiffs, Mr. and Mrs.

Gary, have no income, resources, support or maintenance

other than the $250 a month they receive in public assist-

ance, which is the maximum grant they are entitled to

under the Maryland Aid to Families with Dependent Chil-

dren Program (hereinafter referred to as AFDC program).

The effect of applying the maximum grant” regulation

by the State of Maryland is to reduce the Plaintiffs and

their families to a standard of living substantially belew

that established as a minimum standard of need by the

State of Maryland Department of Public Welfare; the

minimum standard of need formulated for Mrs. Williams

and her eight children by the Department of Public Wel-

fare, including the cost of insurance premiums, school sup-

plies and laundry, is $296.15 per month, $46.15 more than

the maximum grant of $250 per month which she actually

receives; the standard of need formulated by the Depart-

ment, including the cost of insurance premiums, school

supplies and laundry, for Mr. and Mrs. Gary and their

eight children is $331.50 per month, $81.50 per month more

than the maximum grant of $250 per month which they

actually receive. (The above needs are determined in ac-

cordance with the schedules attached to the Bill of Com-

plaint as Exhibit B, representing the schedules for estab-

lishing need in the Maryland Manual of the Department of

Public Welfare.)

III. ARGUMENT

Introduction

This court “* * * may, at any time, grant a temporary

restraining order to prevent irreparable damage

Title 28 U.S.C. Sec. 2284 (3). As to the standards for the

granting of a preliminary injunction, these have been

clearly stated in Embassy Dairy v. Cammalier, 211 F. 2d 41

(1954). In that case it was stated on page 48:

% * Whether or not a preliminary injunction should

issue is ordinarily a matter for the discretion of the

District Court to be exercised upon this series of esti-

mates: ‘The relative importance of the rights asserted

and the acts to be enjoined, the irreparable nature of

the injury allegedly flowing from denial of prelimi-

nary relief, the probability of the ultimate success or

failure of the suit, the balance of damage and conveni-

ence generally.’ (Quoted from Communist Party v.

McGrath, 96 F. Supp. 47, 48 (D.C. D.C., 1951).”

A. Plaintiffs are suffering irreparable injury because

of the enforcement by the Defendants of the “mazxi-

mum grant” regulation in the payment of welfare

assistance.

Where issues raised by attack on the constitutionality of

a state statute or regulation discloses that something more

than a frivolous or unreasonable attack is being made on

the regulation and where continued enforcement will re-

sult in greater injury to plaintiffs than to Defendants,

should the regulation ultimately be held invalid, enforce-

ment of the regulation should be temporarily enjoined

pending determination as to its constitutionality. Traffic

Tel. Workers Federation of N.J. v. Driscoll, 71 F. Supp.

681 (D.C. N.J. 1947). It is conceded that in any motion for

a preliminary injunction, the court must find as a condi-

tion of granting the relief requested that irreparable in-

jury will be suffered by the Plaintiff if relief pendente lite

is not granted. Virginia Petroleum Jobbers Ass’n v. Fed-

deral Power Commission, 259 F. 2d 921 (C. A. D.C. 1958).

The plaintiffs and their minor children are in great,

immediate and continuing need of public assistance com-

mensurate with the minimal standards of need as estab-

lished by the Defendant Department. The Plaintiff parents

have no other source of support to provide their families

with food, shelter and the other necessities of life. As set

forth in greater particularity in their Bill of Complaint,

and in their affidavit in support of motion for a temporary

restraining order and preliminary injunction, the Plaintiffs

are faced with a difficult choice. They must choose be-

tween keeping their families intact, an express purpose

of the Federal Social Security Act (42 U.S.C. Sec. 601 et

seq.) and Article 88A of the Annotated Code of Maryland

(1957 ed.) sec. 44A, with inadequate food, clothing and

shelter; or separating their families by placing some of

their children in institutions or foster homes, since the

present provisions enable the needs of a child in a large

family to be met if the child is so placed. Each choice

means immediate and certain irreparable injury to the

families’ cohesiveness and unity. The plaintiff parents

wish to keep all of their children at home and to provide

them with the basic necessities of life.

B. Defendants will suffer no substantial damage or in-

convenience if assistance is granted to Plaintiffs

pendente lite, whereas Plaintiffs and their children

will suffer substantial and irreparable harm.

If the plaintiff parents would receive public assistance

payments in the amount determined by the Defendant De-

partment of Public Welfare, to be the minimal standards

required for the support of the families of the Plaintiff

parents, which is in excess of the maximum grant of $250

per month, the amount that they now receive, the State

of Maryland would suffer de minimis injury. The plaintiff,

Linda Williams, would be eligible to receive $296.15 per

month for herself and her eight children, $46.15 more than

the maximum grant of $250 per month which she actually

receives. The plaintiffs, Junius Gary and Jeanette Gary,

his wife would receive $331.50 per month for themselves

and their eight children, $81.50 per month more than the

maximum grant of $250 per month, which they actually

receive. Although the amounts received in excess of the

maximum grant by the plaintiffs represents for them their

only possibility of retaining their family unit, in terms of

the effect it would have upon the Defendant, State De-

partment of Public Welfare, when compared to the more

than $89,396,891.43 which was spent in the year ending

June 30, 1967, by the Department of Public Welfare, the

additional grant to the Plaintiffs of $46.15 per month for

the Williams family and $81.50 per month for the Gary

family is so inconsiderable as to be de minimis. Such a

temporary restraining order was granted by this Honor-

able Court in the case of Mantell v. Dandridge, (Civil

Action #18792, Dec. 4, 1967) to prevent irreparable injury

to Plaintiffs as a consequence of the State of Maryland’s

statutory requirement of one year’s residency for public

assistance. A finding of de minimis damage was explicitly

made by the three-judge court in a number of the other

residency cases in other federal district jurisdictions.

A three-judge court in the District of Columbia stated:

“* * * Plaintiffs will suffer irreparable loss, injury

and damage without comparable loss to the public un-

less preliminary relief is granted * * *.”

Harrell v. Tobriner, 279 F. Supp. 22 (D.C. D.C. 1967),

compare also the case of Smith v. Reynolds, 277 F.

Supp. 65 (E.D. Pa. 1967), Ramos v. Health and Social

Services Board, 276 F. Supp. 474 (E.D. Wisc. 1967)

(preliminary injunction granted); Denny v. Health and

Social Services Board (Civil Action No. 67-C-426,

E.D. Wisc., temporary restraining order granted De-

cember 22, 1967); Johnson v. Robinson (Civil Action

No. 67-C-1883, N.C. 111, preliminary injunction granted

December 28, 1967); Porter v. Graham (Civil Action

No. Civ. -2348- Tucson, D. Ariz., ꝓreliminary injunc-

tion granted January 24, 1968.)

There, as in the present case, the record disclosed on its

face that something more than a merely capricious or

wholly unreasonable attack was being made on a state

regulation, that important rights were at stake, and that

denial of relief would result in greater injury to applicants

than would be inflicted upon defendants by the granting

of relief, and in those courts, temporary or preliminary

relief was granted. Compare also Traffic Tel. Workers v.

Driscoll, supra.

In Woods v. Wright, 334 F. 2d 269 (5th Cir., 1964) the

Circuit Court of Appeals held that where Negro children

were expelled from school without a hearing after being

arrested in a civil rights demonstration, the District Court

should have issued a temporary restraining order pro-

hibiting the expulsions and ordering the children read-

mitted to school. In so doing, the court stated:

When there is a clear and imminent threat of

an irreparable injury amounting to manifest oppres-

sion it is the duty of the court to protect against the

loss of the asserted right by a temporary restraining

order. 334 F. 2d at 374.

If expulsion of children from school is sufficiently seri-

ous harm to require a temporary restraining order, how

much more warranted is such an order in this case to pro-

tect the minimal subsistence level of life and health of the

plaintiffs. As was stated in the case of Harris Stanley Coal

& Land Co. v. Chesapeake & O. Ry. Co., 154 F. 2d 450, 453

(6th Cir., 1946), cert. denied. 329 U.S. 761 (1946):

„A court of equity will not gamble with human

life, at whatever odds and for loss of life there is no

remedy that in an equitable sense is adequate. * * *”

C. The Temporary Restraining Order and Prelimi-

nary Injunction Should Be Issued Since Plaintiffs

Will Likely Prevail On The Merits.

1. The Maximum Grant Provision of Rule 200, Sec-

tion VII 1. in Maryland’s Aid to Families with

Dependent Children Program violates the equal

protection clause of the Fourteenth Amendment

to the United States Constitution.

The guarantee of equal protection of the laws under the

Fourteenth Amendment to the United States Constitution

has been stated to mean that:

“The courts must reach and determine the question

whether the classifications drawn in a statute are rea-

sonable in light of its purpose * * *.” McLaughlin v.

Florida, 379 U.S. 184, 189 (1964).

While the government may classify people for various

purposes it may not classify on arbitrary or irrational

grounds. Yick Wo v. Hopkins, 118 U.S. 356 (1886), Car-

rington v. Rash, 380 U.S. 89 (1965). In the instant case the

classification is subject to even closer scrutiny because it is

created by administrative regulation under Rule 200 VII 1.,

issued by the Maryland State Department of Public Wel-

fare. The same deference to legislative judgment is not due

to administrative rule-making and it is clear that an agency

may not make rules or regulations which are out of har-

mony with the act being administered. 1 Am. Jur. 2d Ad-

ministrative Law, Section 132, and cases there cited. The

classification created by Rule 200, VII 1. is unreasonable

in light of the purposes of the Aid to Families with De-

pendent Children (hereinafter referred to as AFDC pro-

gram). The most accurate guide to those purposes in Mary-

land is the statutory declaration of purpose in Section 44A

of Article 88A of the Annotated Code of Maryland (1957

ed.):

“* * * It is hereby declared that the primary purpose

of aid given under this subtitle is the strengthening of

family life through services and financial aid, whereby

families may be assisted to maximum self-support in

homes meeting the requirements of child care estab-

lished by law in this State * * *.” (Emphasis supplied).

This statutory declaration of purpose implicitly refers to

the social, evil that the AFDC prograrfi reaches: the insta-

bility of family units that lose the support of one parent.

This declaration is reinforced by a similar federal decla-

ration of purpose in the Social Security Act of 1935, 42

U.S.C. §601:

“* * * (to encourage) the care of dependent children

in their own homes or in the homes of relatives by en-

abling each state to furnish financial assistance and re-

habilitation and other services, as far as practicable

under the conditions in such state, to needy dependent

children and the parents or relatives with whom they

are living, to help maintain and strengthen family life

and to help such parents or relatives to attain or retain

capability for the maximum self-support and personal

independence consistent with the maintenance of con-

tinual parental care and protection * * *.” (emphasis

supplied).

The AFDC program in Maryland is required by the Social

Security Act, 42 U.S.C. §602, to implement these federal

policies in order to qualify for federal grants to its AFDC

program. Rule 200 VII 1. provides that:

“1. Amount — the amount of the grant is the result-

ing amount of need when resources are deducted from

requirements as set forth in this Rule, subject to a

maximum of each grant from each category:

A. For local departments under any “Plan A” of

Shelter Schedule B $250

For local departments under any “Plan B” of Shelter

Schedule B 5240 (emphasis supplied).

Rule 200 VII 1. imposes an absolute maximum limit on

AFDC assistance regardless of the actual need of the re-

cipient family unit. For example, the Department of Pub-

lic Welfare of the City of Baltimore computes the costs of

subsistence needs of a family of seven persons at $254.00

per month. For a family of eight persons subsistence needs

are calculated to be at least $280.00 per month.( See sched-

ule attached to Bill of Complaint as Exhibit B.) The maxi-

mum grant permitted in Baltimore City is $250.00 per

month. In effect the maximum grant provision of Rule 200

VII 1. limits AFDC assistance to an amount less than actual

need in family units of seven persons or more. Obviously,

the disparity between actual need and the amount of AFDC

assistance increases in larger family units.

Rule 200 VII 1. creates two classes of needy dependent

children and their parents. The first class, families of six

persons or less, is granted AFDC assistance equal to actual

need; the second class, families of seven persons or more,

receives an amount of assistance which not only is insuf-

ficient to meet actual need but also is unrelated to actual

need. The ctassification created by Rule 200 VII 1. is based

solely on the size of the family unit. In the instant case

the minimal standard of need for the family unit of the

plaintiff, Linda Williams, is $296 per month according to

the schedule issued by the Maryland State Board of Pub-

lic Welfare. The application of the arbitrary maximum

grant of $250 denies plaintiff’s family the basic necessities

of adequate food and shelter.

None of the purposes of the AFDC program is served by

the classification created by Rule 200 VII 1. Instead of

strengthening family life, large family units are encour-

aged to separate in order to meet their needs. If plaintiff,

Linda Williams, placed two of her eight children who are

12 years of age or over with eligible relatives, each child

so placed would be entitled to receive $79 per month as

an assistance unit. In addition, the rest of the old family

unit would still qualify for the maximum grant of $250.

The family unit would thus be receiving a total amount of

AFDC assistance of $408, as a result of the dissolution of

the family unit. However, the dissolution of family units

prompted by Rule 200 VII 1. defeats the very purpose of

the AFDC program.

As an economy measure Rule 200 VII 1. still lacks a con-

stitutionally permissible purpose. This issue was squarely

faced in Collins v. State’ Board of Social Welfare, 248 Iowa

369, 81 N.W. 2d 4 (1957) in which the court held that the

Iowa maximum grant provision violated the equal pro-

tection clause of the Iowa Constitutioh. Equal protection

under the Iowa Constitution is identical with the federal

guarantee. Dickinson v. Porter, 240 Iowa 393 at 400, 35

N.W. 2d 66 at 77 (1948). The court stated in the Collins

case at p. 7 of 81 N.W. 2d:

“The books are replete with cases dealing with the

above constitutional provision both here and else-

where. The general rule is that if there is any reason-

able ground for the classification and it operates

equally upon all within the same class, there is uni-

formity in the constitutional sense

Under the record it appears that the State Board in

the administration of the Act and to insure a uniform

state-wide program for aid to dependent children

(Section 239. 18, Code, 1954) has established a stand-

ard schedule of amounts necessary for the minimum

of subsistence, which amounts are based upon the

needy-per-child basis . . . Under the chapter prior

to the amendment each child receives such amount

irrespective of the number in the home. Undgr the

chapter as amended each child may receive the mini-

mum amount without regard to the number in the

home, up to the point where the sum total reaches

$175, at which point additional assistance to that home

terminates. Stating it an ther way, under the amend-

ment assume that the minimum amount per child is

$47 per month. Each child receives the amount pro-

vided the total amount paid to any one recipient does

not exceed $175. If in excess of this amount, the pay-

ment to such recipient is on a pro-rata basis per child

in the home. However, if the instant children should

be distributed among the homes of various relatives

named in Section 239.1 (4), and nothing in the chap-

ter seems to prohibit such distribution, each of the in-

volved children would be entitled to the minimum

allowance.

The amendment on its face appears to be, and was,

we think, intended as an economy measure. In effect

it is a sub-classification of the original classification,

i.e., dependent children, based solely on the number

of children in the home, with no consideration as to

need, a circumstance completely disconnected with

the basic classification and the purpose and reason

therefore. See Keefner v. Porter, 228 Iowa 844, 293

N.W. 501. We think the amendment is clearly dis-

criminatory between dependent children as defined

in Section 239.1 (4) and is purely arbitrary and un-

reasonable in view of the announced purpose of the

act.” (emphasis added).

In the welfare residency cases courts have stated re-

peatedly that the preservation of the public purse does not

justify separate treatment of persons similarly situated.

Thompson v. Shapiro, 270 F. Supp. 331 (D. Conn. 1967),

probable jurisdiction noted, 36 L.W. 3286 (1968); Green

v. Department of Public Welfare, 270 F. Supp. 173 (D. Del.

1967); Harrell v. Tobriner, 279 F. Supp. 22 (D.C. D.C.

1967). In Green the court stated, at p. 177 of 270 F. Supp.,

that, “The protection of the public purse, no matter how

worthy in the abstract, is not a permissible basis for dif-

ferentiating between persons who otherwise possess the

same status in their relationship to the State of Delaware.”

In other words, the arbitrary selection of a class which

bears the burden of state economizing is constitutionally

impermissible. Rinaldi v. Yeager, 384 U.S. 305 (1966);

Green v. Department of Public Welfare, 270 F. Supp. 173

(D. Del. 1967), Smith v. Reynolds, 277 F. Supp. 65 (E.D.

Pa. 1967). The governmental economizing is even more

arbitrary here because, unlike the invalid residency re-

quirement, the maximum grant provision does not even

arguably protect against unscrupulous recipients.

Furthermore, in light of our expanding economy, it is

fallacious to assume that welfare expenditures are rising.

In Research Report Number 2, July, 1967, published by

the defendant, State Department of Public Welfare of

Maryland, it is stated on p. 6:

Costs and numbers of recipients of assistance have

risen due to the extension of Public Welfare services

and benefit levels; it must be noted however that while

actual dollar costs have risen, blic Welfare ex-

penditures have decreased as a percentage of both Na-

tional Personal Income and Gross National Product.

2. Rule 200 VII 1. violates Section 601 of the Fed-

eral Social Security Act which requires that as-

sistance meet basic needs in order to strengthen

the family unit.

The federal policies of the Social Security Act of 1935

are expressed in Section 601 of Title 42 of the United States

Code:

„. . to help maintain and strengthen family life and to

help such parents or relatives to attain or retain capa-

bility for the maximum self-support and personal ir:

dependence consistent with the maintenance of con-

tinual parental care and protection .. (emphasis sup-

plied).

The administrative interpretation of basic federal policy

which is binding on the states is set forth in regulation

3401, Part IV of the Federal Handbook of Public Assistance

Administration:

“To live in the family to which he belongs is the foun-

dation of a child’s security. The public has an inter-

est and an obligation in sustaining the contribution

which parents and immediate family make to the de-

velopment of a child. Financial inability to meet a

child’s needs, therefore, should not be allowed to force

a parent to surrender responsibility for bringing up

the child.”

Section 601 clearly expresses a legislative intent to

strengthen family life through AFDC assistance.

The federal statutory policy of Section 601 of the Social

Security Act is binding on the states. Cf. State v. Band-

jord, 92 P. 2d 273, 279 (Mont. 1939). See also, Pearson v.

State Social Welfare Board, 54 C. 2d 184, 353 P. 2d 33, 35,

39 (1960); Fenton v. Department of Public Welfare, 182

N.E. 2d 528, 530 (Mass. 1962). Maryland statutes require

that the State Department of Public Welfare comply with

all pertinent federal requirements in order to qualify for

federal grants to its AFDC program. Section 15, Article

88A of the Annotated Code of Maryland. Moreover, the

State of Maryland has adopted the very language of sec-

tion 601 as its AFDC policy in Section 44A of Article 88A

of the Annotated Code of Maryland which states that:

It is hereby declared that the primary purpose of aid

given under this subtitle is the strengthening of family

life through services and financial aid, whereby fami-

lies may be assisted to maximum self-support in homes

meeting the requirements for child care established

by law in this state.”

Rule 200 VII 1. imposes an arbitrary limit on the amount

of AFDC assistance regardless of the actual need of the

family unit. It ignores the clear legislative mandate of

Section 601 to meet actual need. Furthermore, it encour-

ages the dissolution of family units in violation of the fed-

eral and state policy of strengthening family life. The

policies of meeting actual need and strengthening family

life are interwoven for surely a healthy family environ-

ment is possible only if actual needs are met.

Administrative rules and regulations must conform to

legislative policy. SEC v. Chenery, 318 U.S. 80 (1943),

Thomas v. Owens, 4 Maryland 189 (1853). In the ancient

and authoritative case of Thomas v. Owens the court dealt

with a suit to compel payment to a comptroller that the

Maryland Constitution and law said he should receive.

The court so ordered, noting that legally defined amounts

of payment could not be reduced by agencies or officials

any more than payments could be withheld. To the offend-

ing official the court at p. 225 of 4 Md., stated that.

this fiat of the Supreme Will is not to be nullified by the

mere ipse dixit of a mere ministerial officer.” Nor should

the legislative command to aid the individual need of needy

dependent children and their parents be nullified by the

arbitrary regulation of the State Board of Public Welfare.

A similar question of ultra vires administrative action

was raised in Staub v. Department of Public Welfare, 198

P. 2d 817, (1948). The welfare department fixed a ceiling

on the amount of assistance to a needy blind person even

though that amount did not meet the recipient’s needs as

computed by the department itself. The court reviewed

pertinent state statutes and regulations which required

assistance to meet actual need. The court set aside the ad-

ministrative action of the welfare department as “arbi-

trary and capricious” (at p. 825 of 198 P. 2d).

3. The Maximum Grant Provisions of Rule 200

(VII) (1) Violates the Right of Marital Privacy

of AFDC Recipients Under the Due Process

Clause of the Fourteenth Amendment to the

United States Constitution.

Even if the Court rules that the maximum grant provi-

sion of Rule 200 (VII) 1. does not deny plaintiff the equal

protection of the laws and does not violate Section 601,

of 42 U.S. C., the maximum grant provision punishes AFDC

recipients with large families in violation of their right of

marital privacy. Griswold v. Connecticut, 381 U.S. 479

(1965). The state cannot require that recipients of public

assistance relinquish a cherished constitutional right as a

condition of eligibility. Sherbert v. Verner, 374 U.S. 398

(1963), Thompson v. Shapiro, 270 F. Supp. 331 (D. Conn.

1967). The condition of family size is completely irrele-

vant to the purposes of AFDC assistance. In welfare resi-.

dency cases courts have invalidated provisions that condi-

tion assistance on the relinquishment of the constitutional

right of interstate travel. Thompson v. Shapiro, supra,

Green v. Delaware, supra, Harrell v. Tobriner, supra. In

our hierarchy of constitutional values surely the marital

right of procreation ranks just as high. And, its relinquish-

ment as a condition to equal AFDC assistance is equally

repugnant to the Constitution. The Supreme Court has

recognized a penumbral right of marital privacy in Gris-

wold v. Connecticut, supra. The right of procreation has

traditionally been zealously safeguarded against govern-

mental interference. Skinner v. Oklahoma, 316 U.S. 535

(1942), Griswold v. Connecticut, supra. The government

must show a compelling interest in order to justify the in-

fringement by Rule 200 VII 1. of this fundamental consti-

tutional right. Bates v. Little Rock, 361 U.S. 516 (1960),

Sherbert v. Verner, 374 U.S. 398 (1963). A money benefit

cannot be denied a person solely because he exercised a

constitutionally protected right. Speiser v. Randall, 357

U.S. 513 (1958), Harman v. Forssenius, 380 U.S. 528, 540

(1965), Garrity v. New Jersey, 385 U.S. 493 (1967), Thomp-

son v. Shapiro, 270 F. Supp. 331 (D. Conn. 1967), Sherbert

v. Verner, supra.

Rule 200 (VII) 1. punishes AFDC recipients who exer-

cise their freedom of choosing a large family. A family

unit that decides to have a large number of children is

denied an amount of assistance equal to its actual needs.

This denial penalizes the birth of additional children in

family units of six or more persons by withholding ade-

quate food and shelter, even though they may all have

been born before the family was ever required to apply

for welfare benefits. For example, all of the children of

Mr. and Mrs. Gary were born before Mr. Gary was forced

by his illness to apply for welfare benefits and they have

not had additional children while receiving AFDC assist-

ance. Likewise, Mrs. Williams’ children were all born prior

to her need for welfare benefits. Nevertheless, they re-

ceive less than adequate assistance for minimal food and

shelter needs even though they chose a large family be-

fore receiving AFDC assistance. Thus, Rule 200 (VII) 1.

intrudes on the right of marital privacy both before and

during the period of AFDC assistance. It imposes an un-

constitutional burden on the exercise of a constitutional

right. Sherbert v. Verner, supra, Collins v. State Board of

Social Welfare, 248 Iowa 269, 81 N.W. 2d 4 (1957). The

right of plaintiffs as married persons, to freedom of choice

in procreation and reproduction is firmly established, Gris-

wold v. Connecticut, 381 U.S. 479 (1965). A state may not

penalize the exercise of a constitutional right by withhold-

ing benefits. Sherbert v. Verner, supra. See also the case

of Thompson v. Shapiro, 270 F. Supp. 331 (D. Conn. 1967),

in which the court held that a state may not punish the

exercise of the freedom to travel from state to state by

imposing an arbitrary durational residence requirement

asa condition of receiving public welfare benefits.

4. The Maximum Grant Provision of Rule 200

(VII) (1) Violates the Right to Life Guaranteed

to the Plaintiffs Under the Fifth and Fourteenth

Amendments to the United States Constitution.

In introducing the Fourteenth Amendment in the United

States Senate in 1868 Senator Howard of Michigan, stated:

“* * * The last two clauses of the first section of the

amendment disable a state from depriving * * * any

person, whoever he may be, of life, liberty, or prop-

erty without due process of law, or from denying him

the equal protection of the laws of the State. * * *

It establishes equality before the law, and it gives to

the humblest, the poorest, the most despised of the

race the same rights and the same protection before

the law as it gives to the most powerful, the most

wealthy, or the most haughty * * * Without this

principle of equal justice to all men and equal pro-

tection under the shield of the law, there is no

republican government and none that is really worth

maintaining.” William D. Guthrie, Lectures on the 14th

Article of Amendment To The Constitution of the

United States, Little, Brown and Co., 1898, p. 22.

In their often cited dissent Mr. Justice Field and Mr.

Justice Strong, in the case of Munn v. Illinois, 94 U.S. 113,

142, defined the meaning of the term “life” as used in the

14th Amendment. They stated:

“* * * by the term ‘life’, as here used, something more

is meant then mere animal existence. The inhibition

against its deprivation extends to all those limbs and

facilities by which life is enjoyed. * * * The depriva-

tion not only of life, but of whatever God has given

to everyone with life, for its growth and enjoyment,

is prohibited by the provision in question, if its efficacy

be not frittered away by judicial decision.”

The maximum grant provision of Rule 200, contained in

the Manual for the Department of Public Welfare of the

State of Maryland strikes at this most basic right of all,

the right to life itself. It allows the Department of Public

Welfare to determine the minimal subsistence needs of a

family, and then to deny any family consisting of more than

six units this minimal subsistence that the Department has

itself defined to be necessary to life. The State of Mary-

land has established a system to provide for the necessities

of life for the less fortunate members of its society, and

then has placed in the balance “* * * all that makes life

worth living.” Cf Ng Fung Ho v. White, 259 U.S. 276, 284

(1922); MacMullen v. City of Middletown, 98 N.Y.S. 145,

150 (1906).

The tragi@ effect of the denial of the minimal subsistence

benefit necessary for life was recently recognized in the

report of the President’s National Advisory Commission on

Civil Disorders. In recognizing that the national average

grant for welfare recipients was well below the poverty

subsistence level of $3,335 for an urban family of four, the

commission reported the effect of this inadequacy. It

quoted the Advisory Council of Public Welfare, in stating

that these inadequacies:

“* * are themselves a major source of such social

evils as crime and juvenile delinquency, mental illness,

illegitimacy, multi-generational dependency, slum en-

vironments, and the widely deplored climate of unrest,

alienation, and discouragement among many groups in

the population.” Report of the National Advisory Com-

mission on Civil Disorders, Bantam Books, 1968, p. 460.

This description is borne out in the instant cases. In

her affidavit, the plaintiff, Linda Williams, states that she

is constantly in debt because of her inability to meet the

bare necessities of life, and that her children are presently

without adequate shoes and clothing, and sometimes are

required to stay home from school, because they do not

have the necessary clothes to wear, especially in the winter-

time. Her oldest daughter has just stopped going to school

because she does not have the right kind of clothes to wear

and is ashamed to go with what she has. Mrs. Williams

states in her affidavit that if she could simply afford the

necessitids of life for her children, she could provide the

kind of home life that they need to grow up to be “good

people.” She is constantly faced with the worry of having

to break up her family because of her inability to meet

her expenses.

The plaintiffs Junius Gary and his wife, Jeanette Gary,

point to the same difficulties in their affidavits, concerning

their children and their inability to clothe them properly

for school. They also point out that in the wintertime their

gas and electricity bill is always behind because of inade-

quate funds, which causes the gas and electricity to be

shut off, leaving them without heat and light in their

home. They are not even left with sufficient money to

participate in the food stamp program which would allow

them to purchase more nutritious food in greater quantity.

The situation that the Williams family and the Gary

family are left in certainly violates that constitutional pro-

tection to a life of more than “mere animal existence”.

Munn v. Illinois, supra, at page 142. The deprivation here

is of everything necessary to the growth and development

of life.

Moreover, the administrative classification deprives the

plaintiffs of other liberties secured by the due process

... CE OEE

clause of the Fourteenth Amendment. Without the bare

necessities of life the full exercise of freedom of speech,

for example, is curtailed. As a result poor persons have

not fully participated in the political processes. Cf. United

States v. Carolene Products Co., 304 U.S. 144, 147 (1938);

Hobson v. Hansen, 269 F. Supp. 401, 513 (D.C. D.C. 1967).

When a legislative classification has the effect of placing

such additional burdens on a class of persons characterized

by its extreme poverty and a practical inability to escape

from the problems which the classification creates, the

court gives close scrutiny and requires full justification

before permitting such a result. Harper v. Board of

Elections, 383 U.S. 663 (1966); Hobson v. Hansen, supra at

513. The right to life guaranteed by the Fourteenth

Amendment recognizes that man is not a mere animal

but a political and social creature as well. Munn v. Illinois,

supra.

The City of Baltimore, in which the maximum grant

regulation is most harshly felt, has itself acknowledged the

complete inadequacy of the welfare grant. In submitting

its application to the Department of Housing and Urban

Development, for a grant to plan a comprehensive city

demonstration program, the city, in its application, com-

mens on the public welfare program as follows:

Public welfare has the mission of providing a guar-

antee against economic poverty and related social

deprivation. This guarantee means that public wel-

fare should be available to all who need its protection,

be adequate to their needs consistent with the stand-

ards of this society for minimum decent living, and

available as a matter of legal right. (Emphasis sup-

plied. )

Public assistance payments are so low in Baltimore

(as elsewhere in the United States) that the public

welfare program itself can be termed a major source

of poverty. Part III, Page 3 of 1 Planning Grant

Application: Title 1 of the Demonstration Cities and

Metropolitan Act of 1966.

1 ae

The application concludes that:

At this stage in the planning process, it does not appear

that there are local laws, regulations or requirements

which are glaringly inconsistent with the objectives of

the program, with the exception of public welfare

laws, and regulations which are primarily national and

state laws and regulations. (Emphasis supplied.) Part

III, Page 1 Planning Grant Application, Title 1 of the

Demonstration Cities and Metropolitan Act of 1966.

It is apparent that the inadequate welfare grant which

is magnified by the maximum grant regulation under at-

tack here, could well cause the City of Baltimore serious

difficulty in obtaining approval of its application for a

model cities program, and thus further penalize the poor of

the inner: city.

CONCLUSION

John Adams, one of the founders of the American Re-

public once wrote: “The poor man’s conscience is clear

yet he is ashamed * * * he is not disapproved, censured or

reproached; he is only not seen * * * to be wholly over-

looked, and to know it, are intolerable.”

The poor of our society, created and perpetuated by a

welfare system which is characterized by inadequate

grants and unrealistic regulations are no longer hidden,

however. And as the court stated in the very recent case

of Edwards v. Habib: opinion of May 17, 1968, (C.A. D.C.

No. 20,883) :

As judges, “we cannot shut our eyes to matters of

public notoriety and general cognizance. When we take

our seats on the bench we are not struck with blind-

ness, and forbidden to know as judges what we see as

men.” Ho Ak Kow v. Nunam, C.C.D. Cal. 12 Fed.

Cas. 252 (No. 6546) (1879).

This court cannot fail to take judicial notice of the

vicious cycle of poverty created in our cities by the ille-

gality and unfairness of our present welfare system. The

maximum grant provision, Rule 200 VII 1, creates an

arbitrary classification that penalizes recipient family units

of more than six persons. A classification based on family

size is totally unrelated to the purpose of the AFDC

program. According to the schedules of the defendant,

State Department of Public Welfare, the amount of assist-

ance granted to Plaintiff Linda Williams and her family,

and plaintiffs Junius and Jeanette Gary and their family,

is inadequate to sustain even a minimal standard of life.

If this Honorable Court enjoins the operation of Rule 200

VII 1. plaintiffs could provide for the minimal subsistence

needs of their families. For all of the foregoing reasons,

plaintiffs respectfully request that their motion for a pre-

liminary injunction and a temporary restraining order be

granted to the plaintiffs and their children.

(Signatures and Certificate of Service.)

United States District Court for the

District of Maryland

SUPPLEMENTARY MEMORANDUM IN SUPPORT OF

PLAINTIFFS’ MOTION FOR A TEMPORARY RE-

STRAINING ORDER AND PRELIMINARY INJUNC-

TION.

I. Legislative History and Administrative Interpreta-

tion Regarding the Maximum Grant Regulation.

At the Court’s request, counsel for Plaintiffs have re-

viewed the legislative history of the Social Security Act

of 1935, Title IV, Grants to States for Aid and Services to

Needy Families with Children. The Senate and House

Reports since the initial enactment of the Act, and testi-

mony that was given concerning the various enactments,

as well as the administrative interpretation of the act,

have been examined, to determine congressional concern,

if any, with a “maximum grant” regulation, such as the

one here under attack. The original act and the subsequent

amendments to it, while they do not speak directly to the

problem of maximum grant regulations, contain considera-

ble language which support the position that a maximum

grant regulation, such as the one here under attack, does

defeat the purposes for which the AFDC provisions of the

Social Security Act, 42 USC, Sec. 601, et seq. were enacted.

The language referred to is contained in the legislation

itself, relevant reports from congressional committees

connected with the promulgation of such legislation, HEW

interpretation of the Social Security Act, and statements

of members of Congress which appear in the congressional

record. All of the sources support the position that the

original congressional intent was clearly to meet the ob-

jectives of the AFDC provisions of the Social Security

Act, as presently set forth in 42 USC Sec. 601, to “* * *

strengthen family life and to help such parents or rela-

tives to attain or retain capability for the maximum

self - support and personal independence consistent with

the maintenance of continuing parental care and protec-

tion * * *” and to encourage “* * * the care of dependent

children in their own homes or in the homes of rela-

tives 8 * 92

Senate Report No. 628, 74th Congress (May 13, 1935)

states: Through cash grants adjusted to the needs of the

family it is possible to keep young children with their

mother in their own home, thus preventing the necessity

of placing children in institutions. This is recognized by

everyone to be the least expensive and altogether most

desirable method for meeting the needs of these families

that has yet been devised.” (Emphasis supplied.) The

Report goes on to note that because in many States the aid

is inadequate to meet the objective of providing for the

needs of families, there was a requirement for Federal

aid to States.

The initial House version of the Social Security Act

reiterated the viewpoint of the Senate committee. It

emphasized “* * * it has long been recognized in this

country that the best provision that can be made for

families of this description (without a potential bread-

winner) is public aid with respect to dependent children

in their own homes.” House Report No. 615, 74th Con-

gress (1935). (Emphasis supplied.)

Congressional testimony at the time of the consideration

of the original Social Security Act adds considerably to the

argument that a maximum grant regulation is incon-

sistent with the legislative intent of the Social Security

Act. Senator Harrison of the Senate Committee on Fi-

nance, in explaining the House Ways and Means Commit-

tee’s proposals of Title IV stated during the Senate debate:

the provisions are not for general relief of poor

children but are designed to hold broken families together.”

(Emphasis supplied.) 79 Cong. Rec. 9269 (1935). Senator

Wagner of Mississippi, the sponsor of the Social Security

legislation, emphasized the need for flexibility in allocating

funds, by commenting that: “* * * These grants will be

extended primarily upon a matching basis in order to

stimulate the States to action, but they will take full

account of the special needs of those localities which are

genuinely without capacity to help themselves.” 79 Cong.

Rec. (1935).

The present objectives of the Social Security Act were

reaffirmed by the Act of August 1, 1956, which amended

Title IV, by restating the purposes to include encourage-

ment of care of dependent children in their own homes or

in the homes of relatives with the same objective of

“strengthening family life.” August 1, 1956 c. 936 Title II.

Section 312 (a), 70 Stat. 848.

Discussing the 1956 Amendments to Title IV of the

Social Security Act, Senator Byrd, of the Senate Commit-

tee on Finance, stated that: “* * * Services that assist

families and individuals to attain the maximum economic

and personal independence of which they are capable

provided a more satisfactory way of living for the recipi-

ents affected. To the extent that they can remove or

ameliorate the causes of dependency they will decrease the

time that assistance is needed.” 102 Cong. Rec. 13034

(1956). In the same vein, Senator Magnuson proposed to

liberalize the grants to dependent children “* * * to a

level commensurate with other social security benefici-

aries * * *” (in order to alleviate) “* * * one of the

significant deficiencies in our present social security legis-

lation.” 102 Cong. Rec. 13081, (1956). Similar sentiment

was voiced by Representative Knox in commenting on the

conference report of public assistance titles: “* * * I am

gratified to observe that the amendments provided in the

conference agreement to these public-assistance titles will

insure to * * * our dependent children a liberalized benefit

level that more realistically recognizes the cost of even

the barest subsistence today. It should be recognized that

people who are compelled to avail themselves of public

assistance are entitled to an adequate benefit commen-

surate with the costs of their living requirements in our

present-day economy.” (Emphasis supplied.) 102 Cong.

Rec. 14835 (1956).

That , an arbitrary maximum grant regulation on the

amount of a grant to a family defeats the purposes of the

Social Security Act, concerning AFDC, is further high-

lighted by examining the 1965 Amendment to the Act,

subsection (a)(1) public law 89-97, Sec. 122, 401 (c),

which increased the share of the average monthly assist-

ance payment from 14/17 of the first $17 of assistance to

a recipient, to 5/6 of the first $18 of such payment, thus

raising the ceiling for federal participation from $30 to

$32 a month per recipient. See 42 U.S.C.A. Sec. 603 (1967

Com. Annual Pocket Part) and Annotation thereto, con-

cerning the 1965 amendment.

The purpose of the 1965 amendment was to improve and

expand the public assistance program by increasing the

federal matching share for cash payments for the needy

aged, blind, disabled and families with dependent children.

1965 U.S. Code Cong. and Adm. News, at page 1944. It is

of course noted that the method of improving and expand-

ing the assistance to families with dependent children was

by increasing the matching funds from $30 to $32 per

recipient, not by giving an increase to the family as a

whole. Such a method of increase makes sense when one

finds that the amount of payments is based on the indi-

vidual’s need and on the cost for meeting that need. Thus,

for the State arbitrarily to set a maximum grant for

family, without regard to the number of dependent chil-

dren in the family, patently defeats the very purpose of

the 1965 amendment and all the prior provisions of the

Social Security Act which conipute the amount of payment

to the States on the basis of the number of recipients

eligible for assistance.

This viewpoint is further reinforced by the 1967 amend-

ment to the Social Security Act, Public Law 90-248, 90th

Congress, H.R. 12080. While not specifically passing upon

the matter of meeting the full needs of welfare recipients,

the amendment does require in Section 402 (a) (23), that

the amounts used by the State to determine the needs of

individuals will have been adjusted to reflect fully

changes in living costs, since such amounts were estab-

lished * It also requires adjustments of any maxi-

mums imposed by a State on the amount of aid paid to

families in proportion to the rise in living cost.

Thus for the State arbitrarily to set a maximum grant

per family, without regard to the number of dependent

children in the family, patently defeats the very purpose

of the Social Security Act, which has consistently com-

puted the amount of payment to the State on the number

of recipients eligible for assistance, and has amended the

Act so as to meet the rise in the cost of living be determin-

ing how such rise has effected the needs of individuals.

In the testimony that was given, concerning the 1967

amendments to the Act, Wilbur J. Cohen, the present Sec-

retary, Department of Health, Education and Welfare, had

an interesting exchange with Senator Ribicoff, a member

of the committee on finance, concerning the effect of fail-

ure to meet minimal needs which directly results from

maximum grant regulations:

Senator Ribicoff: I know, but you take all that into

account in the standards that are being set. What they

are receiving is not just a question of the amount they

receive from the welfare agencies, you take into ac-

count all they receive. What happens to the child or

the adult who receives so much less than what you

consider or what is considered a proper standard?

How do they live?

Mr. Cohen: They have to live on the lesser amount.

Senator Ribicoff: How do they live?

Mr. Cohen: They have to cut back on their food and

clothing and other needs to live on the amount that

the state gives them.

Senator Ribicoff: Well, is not a study made or do

not you know what happens to these people? I mean

just what is happening to them?

Mr. Cohen: Well, I think that the evidence shows —

I do not have it immediately before me — that many

of these children and these families grow up without

adequate food, without adequate medical care, and

certainly their whole aspirations for improving in

their education status are stunted, and I think that the

evidence from the State administrators when you hear

them will bear that conclusion out.

Secretary Gardner: It shows up most clearly, I

think, in the medical data. You will find a higher in-

cidence of just about every kind of medical disorder

and physical handicap in these youngsters — malnu-

trition and everything else.

Senator Ribicoff: Well, in looking to the cost to so-

ciety ultimately, the people who are below standard

cause a greater drain eventually upon what the society

has to pay out in every conceivable way, is that not

right?

Senator Gardner: No question about that, Senator.

Hearings before the Committee on Finance, United States

Senate 90th Congress, First Session on H.R. 12080, August

22, 1967.

In initially establishing the Act, Congress recognized

that in the long run the least expensive and altogether

most desirable method of providing for needy families was

cash grants adjusted to individual needs, and such failure,

which directly results from a maximum grant regulation,

in regard to large families, not only defeats the very pur-

poses of the Act, but also may well result in a greater ex-

pense to the State, apart from the tragic cost in human

resources to society and to the individuals in question.

An examination of what the Department of Health, Edu-

cation and Welfare has said in this regard is also illumi-

nating. The policies and standards for the public assist-

ance program as administered by the states are set forth

in the Handbook of Public Assistance Administration and

related releases (hereinafter referred to as Handbook)

issued by the Department. This Handbook describes its

functions as follows (Pt. 1, Sec. 4210):

“* * * The policies and standards are set forth in

the form of interpretations of the Social Security Act,

requirements for State plans, criteria for the adminis-

tration of State plans, conditions for Federal financial

participation, and recommendations for improving

public assistance programs and administration * * *

The Handbook constitutes the principal means of in-

forming the States regarding official policies and stand-

ards * it

* * * * * *

1. The Federal requirements described in this Hand-

book are based on the pertinent provisions of the So-

cial Security Act, and on the intent and purpose of the

law as identified in official statements and as derived

from the history of the legislation and from other

available evidence.” (emphasis supplied).

Thus, in the Handbook of Public Assistance Administra-

tion, Supplement A, Pt. II — A — 3000, it is stated:

“* * * Sufficient funds should be made available by

the State to meet need in full in accordance with the

State standards of need and to assure that for the es-

tablished State fiscal period, there will be continuity

of operations under the plan throughout the State.”

(emphasis supplied).

HEW, in another section, Pt. IV, Sec. 42231, of the Hand-

book goes on to actually define what is meant by the phrase

“Strengthening Family Life” which appears in 42 U.S.C.

8602:

Strengthening family life means sustaining and in-

ereasing the ability of parents to carry their parental

responsibilities in the care, protection, and support of

their children; and to sustain and increase the capaci-

ties of children to carry their appropriate role in total

family life, to the end that children may have a home

life conductive to healthy physical, emotional, and so-

cial growth and development. Families have the right

and responsibility to provide for adequate health care,

education, and vocational training in accordance with

the capacities of their children; and to provide for

their participation in community life.

Thus, while Congress has not spoken definitively, concern-

ing its viewpoint of the effect of maximum grants on the

purposes of the Social Security Act, statements contained

in the Congressional Reports and testimony at Congres-

sional hearing, as well as the administrative interpreta-

tion in the Handbook, certainly support the conclusion

that accomplishment of the primary purpose of aid under

Title IV, the “strengthening of family life through services

and financial aid,” can only be met adequately by meeting

all needs of all individuals in all families, whether they be

large or small families. Nowhere in the Social Security

Act and its various amendments or in the Handbook, is

there any justification for a discrimination between large

and small families. The maximum grant regulation here

in question defeats the very purposes of the Social Secur-

ity Act, “to encourage the care of dependent children in

their own homes” by establishment of such a regulation.

In the very recent case of King v. Smith, No. 949, Octo-

ber term, 1967, 36 L.W. 4703, the Supreme Court opinion in-

cludes extensive research on the Social Security Act, inso-

far as it touched upon the Alabama welfare regulation

dealing with the so-called “substitute father.”

While the regulation there is not related to the maxi-

mum grant regulation here under attack, there was a rec-

ognition of the importance of the legislative purposes of

the act as further interpreted by the Handbook, which is

frequently cited. There, as in this case, the Supreme Court

found that the regulation itself is unrelated to need,

because the actual financial situation of the family is irrel-

evant in determining the existence of a substitute father.”

36 L.W. 4706.

The Court went on to state, at 36 L.W. 4709:

“A contrary view would require us to assume that

Congress, at the same time that it intended to provide

programs for the economic security and protection of

all children, also intended arbitrarily to leave one class

of destitute children entirely without meaningful pro-

tection. Children who are told, as Alabama has told

these appellees, to look for their food to a man who

is not in the least obliged to support them are without

meaningful protection. Such an interpretation of con-

gressional intent would be most unreasonable, and we

decline to adopt it.” (Court’s emphasis).

The Court concluded that the purpose of the AFDC pro-

gram was to provide economic security and services to

needy children who lost the support of a “breadwinner”.

Parents of a large family are required to completely ignore

children beyond the sixth individual in a family, which is

humanly inconceivable, or to spread already inadequate

resources thinner. The effect of the maximum grant regu-

lation, as in the King v. Smith case, is to arbitrarily leave

one class of destitute children entirely without meaningful

protection, and is equally unreasonable in view of the pur-

poses of the Act.

II. Supplemental Argument That the Maximum

Grant Provision of Rule 200 VII 1. Violates the

Equal Protection Clause of the Fourteenth Amend-

ment to the Constitution of the United States.

Plaintiffs contend that there is enough evidence on Con-

gressional intent and administrative interpretation to war-

rant a finding by the Court that Rule 200 VII 1. violates

Section 601, 42 U.S.C. the Federal Social Security Act, and

is the very antithesis of the purposes of the Act. However,

even if the Court should not reach this conclusion, the regu-

lation in question must still fall, as a clear violation of plain-

tiffs’ constitutional rights under the equal protection and

due process clauses of the Fourteenth Amendment to the

United States Constitution.

Plaintiffs have already filed an extensive memorandum

in support of their argument on this point. By way of fur-

ther supplementation of that memorandum, plaintiffs main-

tain that the application of the maximum grant to children

of large families is a denial of equal benefits to them.

on a wholly arbitrary standard or on a consideration that of-

fends the dictates of reason.” Schward v. Bd. of Bar Exami-

ners, 358 U.S. 232, 249 (Frankfurter, J., concurring). The

children of the plaintiffs and all children of families belong-

ing to the class here represented are thus denied rights on

the basis of a status which they are powerless to influence,

1. e., that they are members of a family of more than six

persons.

The very recent case of Anderson, et al. v. Schaefer, Civil

Action No. 10443, (D.C. N.D. Ga. April 4, 1968) is close on

the point to the instant case. For the Court’s convenience

a copy of the opinion and order, findings of fact and conclu-

sions of law are attached hereto. In that case, the state of

Georgia promulgated an “employable mother” regulation

which discriminated between AFDC recipients in the cal-

culation of their grants on the basis of the sources of their

income. Thus, under the regulation a family whose income

resulted from employment would in most cases receive less

in AFDC supplementary benefits than a person whose in-

come came from other sources.

The Court in Anderson, found that the regulation bore

“* * * no reasonable relationship to plaintiffs’ financial

needs, and therefore to the purposes of the Social Security

Act * * *”. (emphasis supplied). We would submit that

the regulation here challenged bears even less reasonable

a relationship to the plaintiffs’ needs, arbitrarily discrmi-

nating against the child or children of a large family. The

members of the Gary family receive assistance at the rate

of $25.00 per person although according to Maryland’s mini-

mal standards of subsistence and shelter they should re-

ceive assistance at the rate of $33.15 per person. Likewise,

the members of the Williams’ family receive assistance at

the rate of $27.78 although minimal subsistence standards

calculated for them by the defendant call for payments of

$35.71 per person. A family of six persons, unhampered by

the maximum grant regulation receives assistance at the

rate of $38.50 per person, the full amount calculated to be

their minimal subsistence needs.

Thus, as in the Anderson case, the maximum grant regu-

lation penalizes the plaintiffs on a basis which “bears no

reasonable relationship to their financial needs and there-

fore to the purposes of the Social Security Act.” Anderson

v. Schaefer, supra.

The Court in Anderson held that the defendants shall not

give any force or effect to the regulation in question. It is

respectfully submitted that the court should likewise en-

join any enforcement of the maximum grant regulation

herein under attack.

(Signatures and Certificate of Service.)

United States District Court for the

. District of Maryland

AMENDED MOTION TO DISMISS

Now come the Defendants Edmund P. Dandridge, Jr.,

Chairman of the State Board of Public Welfare; Raleigh C.

Hobson, Director of the State Department of Public Wel-

fare; and Mrs. Barbara Stevenson, Howard W. Murphy,

Julius O. Shuger, Dr. W. Richard Ferguson, Lester B. Levy,

Nicholas C. Mueller, Calhoun Bond and Mrs. Charles D.

Harris, members of the State Board of Public Welfare, by

Francis B. Burch, Attorney General, and Frank A. DeCosta,

Jr., Assistant Attorney General, their attorneys, and by

way of an Amended Motion to Dismiss, by leave of this

Court, respectfully say:

1. That this Court is without jurisdiction by reason of

the Eleventh Amendment to the United States Constitution

because the Plaintiffs, residents of the State of Maryland,

assert a monetary claim against the State of Maryland to

which it has not consented.

2. That the Governor of the State of Maryland and/or

the President of the Maryland Senate and the Speaker of

the House of Delegates are indispensable party defendants

under Rule 19 (a) and (b) of the Federal Rules of Civil

Procedure and their joinder will divest this Court of juris-

diction. 5

3. That this Court should abstain from exercising juris-

diction because on the face of the Complaint there is al-

leged to be a State statute susceptible of construction by

the State courts which would avoid or modify the constitu-

tional question raised.

4. That the Complaint does not raise a substantial con-

stitutional question nor state a claim upon which relief can

be granted, because “poor relief” is a State question and

there is no constitutional right thereto.

Wherefore, Defendants request that an Order be entered

dismissing the Complaint in accordance herewith.

(Signatures and Certificate of Service.)

United States District Court for the

District of Maryland

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANTS’ AMENDED MOTION

TO DISMISS

ARGUMENT

Eleventh Amendment

The Plaintiffs do not merely contend that the Maryland

Department of Public Welfare’s maximum grant regulation

(Maryland Manual of the Department of Public Welfare,

Part II, Rule 200, Section VII 1) of $250 is violative of the

State and Federal Enabling Acts [Article 88A, Sections 44A

and 49, Annotated Code of Maryland (1964 Replacement

Volume), and 42 U.S. C., Sections 601, et seq.) and the equal

protection and due process clauses of the Fourteenth

Amendment to the United States Constitution, but they

additionally contend that the Williams family (Plaintiffs

herein) is entitled to an additional $46.15 more per month

in AFDC benefits from the State (Paragraph IX A of the

Complaint) and that the Gary family (Plaintiffs herein)

is entitled to an additional $81.50 per month in AFDC

benefits from the State (Paragraph IX B of the Com-

plaint).

That the Plaintiffs are really seeking a monetary judg-

ment against the State becomes even clearer from the

nature of the specific relief requested. They request a

preliminary and permanent injunction:

“(a) prohibiting, restraining and enjoining defend-

ants . from enforcing, applying or implementing

said maximum grant regulations”.

Obviously, if the State may not apply its $250 maximum

grant regulation, the next step becomes obvious:

“(b) prohibiting payments of assistance which are

less than the minimum subsistence and shelter needs

as established by the Maryland Board of Public Wel-

fare, and ordering and requiring defendants to make

welfare payments to plaintiffs . . . in accordance with

minimum subsistence and shelter needs as established

by the Maryland State Board of Public Welfare”.

In the case of the Williams family this would amount to an

affirmative award of $46.15, and in the case of the Gary

family this would amount to an affirmative award of

$81.50. Not content to rest with (a) and (b), Plaintiffs

further clarify the true nature of their monetary claim

by requesting this Court to

(e) order and require “defendants . . to furnish

AFDC assistance to Plaintiffs and others similarly

situated without regard to said maximum grant regu-

lations”.

The essence of the Plaintiffs’ claim, then, is that they

are entitled to monetary relief against a State by virtue

of the equal protection and due process clauses of the

Fourteenth Amendment to the United States Constitution.*

The Eleventh Amendment to the United States Constitu-

tion provides:

“The Judicial power to the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.”

In Hans v. Louisiana, 134 U.S. 1 (1890), the Supreme Court

construed the Eleventh Amendment to prohibit suits in fed-

eral courts against a state for a monetary judgment by one

of the state’s own citizens unless the state itself consents.

This constitutional doctrine has been reaffirmed since Hans.

Great Northern Life Insurance Co. v. Read, 322 U.S. 47,

51-52 (1944).

The present claim for monetary relief may not, by virtue

of the Eleventh Amendment, be maintained in this Court

since it is one to which the judicial power of the United

States shall not extend.

II.

Joinder of Indispensable Parties

The Plaintiffs in this elass action are essentially asking

that the State provide additional money in the budget of

the Maryland State Department of Public Welfare for in-

creased grants under AFDC. That will be the ultimate

* More alarmingly, their assertion, when cut to the “bare bones”,

is that they are entitled to “poor relief” as a matter of “right” by

virtue of the same constitutional provision.

effect, if grants beyond the 8250 maximum are constitu-

tionally required.“

Under Article III, Section 52 (3) of the Maryland Con-

stitution, the Governor is charged with the ultimate re-

sponsibility for the preparation of the budget of the State

Department of Public Welfare. The Governor may reduce

or exclude from his budget an appropriation requested by

one of his executive departments. Moreover, the General

Assembly may only reduce executive appropriations in-

cluded in the budget as submitted. However, the General

Assembly may appropriate additional moneys by way of

a Supplementary Appropriation Bill, provided that a rev-

enue source by way of a ‘ax is established to support the

Supplementary Appropriation Bill. Maryland Constitu-

tion, Article III, Section 52(8).

Further, the State Department of Public Welfare does

not have the authority, within its fiscal year 1968 or 1969

budget, to transfer funds from one program [i.e., Aid to

the Blind (AB), Old Age Assistance (OAA), or Aid to the

Permanently and Totally Disabled (APTD)] to AFDC, in

the absence of a legislative amendment, without obtaining

the approval of the Governor. Article 15A, Section 8 of

the Maryland Code (1968 Replacement Volume), in perti-

nent subsections, provides:

“(a) What constitutes initial plan of disbursement.—

The items and amounts making up the appropriation

in any budget bill, supplementary appropriation bill

or bond issue shall represent the initial plan of dis-

bursement and apportionment of the appropriations

of which they are part. Each appropriation shall be

paid out only in accordance with the schedule therefor,

unless such schedule be amended, within the limits

of such appropriation, in the following manner

* „ * * * =

*The Department estimates that there are approximately 2,300

grants which would have to be increased if this class action pre-

vails, requiring increased grants for AFDC of $957,600, neither ap-

propriated in the present 1968 fiscal year budget nor appropriated

in the 1969 fiscal year budget.

“(e) Amended schedules submitted by departments,

etc., and approved by Governor; amendments made

or approved by Governor to be reported to General

Assembly. — Any department, board, commission, of-

ficer or institution may, at any time submit in writing

to the Governor an amended schedule for the disburse-

ment and apportionment of the appropriations made

to it by him. If the Governor shall approve such

amended schedule, he shall transmit the same, with

the certificate of approval, to the Comptroller and

thereafter, such appropriation shall be paid out in ac-

cordance with said amended schedule, subject to the

provisions of subsection (f). Any such amended sched-

ule so submitted to the Governor may be withdrawn

at any time before the Governor has acted thereon.

Any, amended schedule approved by the Governor

may be again amended at any time in like manner and

with like effect. All amendments and schedules made

or approved by the Governor shall be reported by

him to the next session of the General Assembly.”

In order to achieve the fiscal scheme contemplated by

the Plaintiffs, namely, increasing the AFDC grants by

$957,600, the Governor and/or the President of the Mary-

land Senate and the Speaker of the House of Delegates

are indispensable parties.

Rule 19(a) of the Federal Rules of Civil Procedure, in

pertinent part, provides:

“A person who is subject to service of process and

whose joinder will not deprive the court of jurisdic-

tion over the subject matter of the action shall be

joined as a party if (1) in his absence complete relief

cannot be accorded among those already parties

If he has not been so joined, the court shall order that

he be made a party.”

Rule 19(b) of the Federal Rules of Civil Procedure pro-

vides:

“If a person as described in subdivision (a) (1) (2)

hereof cannot be made a party, the court shall de-

termine whether in equity and good conscience the

action should proceed among the parties before it, or

should be dismissed, the absent person being thus re-

garded as indispensable. The factors to be considered

by the court include: first, to what extent a judgment

rendered in the person’s absence might be prejudicial

to him or those already parties; second, the extent to

which, by protective provisions in the judgment, by

the shaping of relief, or other measures, the prejudice

can be lessened or avoided; third, whether a judgment

rendered in the person’s absence will be adequate;

fourth, whether the plaintiff will have an adequate

remedy if the action is dismissed for nonjoinder.”

Rule 19(a) is satisfied because, in the absence of the

Governor and/or the President of the Maryland Senate

and the Speaker of the House of Delegates being made a

party, “complete relief cannot be accorded among those

already parties”. Rule 19(b) is satisfied because each is

a State official charged with statutory responsibilities

which would be affected by this action and the relief

prayed by the Plaintiffs. These State officials are, there-

fore, “indispensable” parties within the meaning of Rule

19 (a) and (b).

Since the Plaintiffs’ action would be essentially asking

for monetary relief against these State officials, an in-

crease in the AFDC grants beyond the present $250 maxi-

mum, their joinder could divest this Court of jurisdiction

because of the Eleventh Amendment as construed in Hans

v. Louisiana, supra, and Great Northern Life Insurance Co.

v. Read, supra.

These additional defendants are, therefore, “indispensa-

able” parties whose joinder would divest this Court of

jurisdiction and (1) any judgment rendered in the absence

of these parties will be prejudicial to them; (2) in shaping

relief, a monetary award to the Plaintiffs against the State

will necessarily result; (3) in the absence of the additional

defendants, relief will not be adequate because of the fis-

cal scheme established by State law; and (4) the Mary-

land courts have jurisdiction to entertain the Plaintiffs’

action. These factors being present, Rule 19(b) author-

izes this Court to dismiss the Complaint under these cir-

cumstances.

III.

Abstention

The Complaint states:

“This is a proceeding for injunction enjoining the

defendants from continuing to enforce or otherwise

apply its ‘maximum grant’ regulation. This is also a

proceeding for a declaratory judgment that defend-

ants’ ‘maximum grant’ regulation:

(A) Contravenes the equal protection and due proc-

ess clauses of the Fourteenth Amepdment to the Con-

stitution of the United States; and

(B) Is contrary to the purposes of the federal and

state Aid to Families with Dependent Children pro-

gram as expressed by the Federal Social Security Act

(42 U.S.C. Sections 601 et seq.) and the statutes of the

State of Maryland (Article 88A, Sections 44A and 49,

Ann. Code of Md., 1957 ed.).”

On the face of the Complaint the Plaintiffs allege the nar-

rowly limited “special circumstance” which permits this

Court to decline to exercise jurisdiction, namely, that the

“maximum grant” regulation promulgated by the Mary-

land State Board of Public Welfare [ils contrary . . . to

the statutes of the State of Maryland”.

In Harrison v. NAACP, 360 U.S. 167 (1959), the Supreme

Court, in approving the District Court’s declension of ju-

risdiction, held that abstention is properly exercised when

a state statute is susceptible to a construction by the state

courts that would avoid or modify the constitutional ques-

tion. This principle has been recently reaffirmed by the

Supreme Court in Zwicker v. Koota, 36 L.W. 4041, 4043

(1967), although abstention was held to have been im-

properly applied in that case because it was conceded

there that a construction of the state statute would not

render unnecessary a decision of the constitutional chal-

lenge. In the present case, however, the Plaintiffs them-

selves assert that the “maximum grant” is inconsistent

with a state statute. If this is true, as the Plaintiffs claim,

such a construction would avoid the constitutional ques-

tion. Regard for the interest and sovereignty of the state

and reluctance needlessly to adjudicate constitutional is-

sues are appropriate considerations by a federal District

Court in the ultimate determination of whether to ex-

ercise jurisdiction, where the Harrison “special circum-

stance” is present. In this connection, it is interesting to

note that recently in King v. Smith, 36 L.W. 4703 (1968),

the Supreme Court struck down Alabama’s “substitute

father” regulation which denied AFDC benefits on statu-

tory rather than the asserted constitutional grounds.

Moreover, there is every danger that a federal decision

on the merits of the constitutional claim will disrupt an

entire regulatory scheme, not only in Maryland where

appropriations were made for both the fiscal year budgets

1968 and 1969 with the $250 “maximum grant” regulation

for AFDC in mind but also by implication in one-third of

all states participating in AFDC categorical assistance pro-

grams under the Social Security Act. One-third of all

states fix the maximum amount of grants to families with

dependent children.* The Supreme Court has observed

without disapproval that:

“The level of benefits is within the State’s discre-

tion, but the Federal Government’s contribution is a

varying percentage of the total AFDC expenditures

within each State [citations omitted]. The benefit

levels vary greatly from state to state. For example,

in May, 1967, the average payment to a family under

AFDC was about $224 in New Jersey, $221 in New

York, $39 in Mississippi, $20 in Puerto Rico, and $53

in Alabama [citations omitted].” King v. Smith, 36

L.W. 4703, 4706 (1968).

See Sparer, Social Welfare Law Testing, 12 Prac. Law 13, 21

(1966). In Georgia the maximum grants in AFDC are $36 for

the first child, $27 for each additional child up to and not to exceed

$144 per family per month. Ga. Manual of Public Assistance, Part

III, Section VII, at G-37 (1966).

The “special circumstances” doctrine of Harrison has

not been tampered with in Damico v. California, 389 U.S.

416 (1967). In Damico the question presented was whether

a three-judge court properly declined to exercise jurisdic-

tion to hear a Section 1983 claim upon the doctrine of

abstention because the plaintiff had failed to exhaust state

administrative remedies. No such ground is asserted in

the present case.

Finally, the doctrine of abstention is properly raised by

a Motion to Dismiss (compare Government & Civic Em-

ployees Organizing Committee, CIO v. Windsor, 353 U.S.

364; Shipman v. DuPre, 339 U.S. 321, with Stainback v.

Mo Hock Ke Lok Po, 336 U.S. 368) although it may be the

better practice to retain jurisdiction pending adjudication

in the state court. See Note, “Federal Question Absten-

tion: Justice Frankfurter’s Doctrine in an Activist Era”,

80 Harv. L. Rev. 604 (1967).

IV.

“Poor Relief” is a state question and there is no constitu-

tional right to a level of benefits beyond that provided

by the states.

Public welfare takes the forms of general assistance and

categorical assistance in the United States. General as-

sistance is financed by local and state governments. Al-

though programs of this sort provided the only public aid

available prior to the Depression, the now furnish only a

small portion of public welfare funds. Categorical assist-

ance is today the predominant form of public welfare.

Under this scheme, state programs which are supported

by grants-in-aid from the federal government pursuant

to the Social Security Act administer aid to specific cate-

gories of needy individuals and families. The federal stat-

ute recognizes four major categories: Old Age Assistance

(OAA), Aid to the Blind (AB), Aid to the Permanently

and Totally Disabled (APTD), and Aid to Families with

Dependent Children (AFDC).

State participation is not required by the federal statute.

States may choose not to apply for federal assistance or

may join in some, but not all, of the programs. In order to

receive federal funds, however, state plans must be sub-

mitted for the approval of the Secretary of Health, Educa-

tion and Welfare. Although the establishment of criteria

for need and other factors of eligibility is left largely to

the states, the plans must meet certain basic qualifications

under the act and must conform to the rules and regula-

tions promulgated by the Secretary.

The state plans themselves are usually devised pursuant

to general enabling legislation empowering a state agency

to promulgate rules and regulations for administering the

federal program. The Maryland AFDC program is legis-

latively authorized and detailed in Article 88A, Sections

44A, et seq., Annotated Code of Maryland (1964 Replace-

ment Volume).

Maryland, together with every other state, Puerto Rico,

the Virgin Islands, the District of Columbia and Guam,

participates in the Federal Government’s AFDC program,

which was established by the Social Security Act of 1935.

King v. Smith, 36 L.W. 4703 (1968). The category singled

out for welfare assistance by AFDC is the “dependent

child”, who is defined in Section 406 of the Act, 49 Stat.

629 (1935), as amended, 42 U.S.C. Section 606(a), as an

age-qualified “needy child . . who has been deprived of

parental support or care by reason of the death, continued

absence from the home, or physical or mental incapacity

of a parent, and who is living with” any one of several

listed relatives.

The Maryland State Department of Public Welfare, with

respect to AFDC grants, promulgated the following regula-

tion:

“The amount of the grant is the resulting amount

of need when resources are deducted from require-

ments as set forth in this Rule, subject to a maximum

on each grant from each category:

A. For local departments under any ‘Plan A’ of

Shelter Schedule B $250. For local departments under

any ‘Plan B’ of Shelter Schedule B $250, except that:

a. If the requirements of a child over 18 are included

to enable him to complete high school or training for

employment (III-3, C), the grant may exceed the

minimum by the amount of such child’s needs.

b. If the resource of support is paid as a refund

(V-2, F), the grant may exceed the maximum by an

amount of such refund. This makes consistent the

principle that the amount from public assistance funds

does not exceed the maximum.

B. A grant is subject to any limitation established

by existing rule on insufficient funds.” Maryland

Manual of Departnient of Public Welfare, Part II, Rule

200, Section VII.

The Department has established schédules by which they

determine the actual needs of a particular family under

AFDC based upon standards established by the Depart-

ment. When those standards are applied to the Plaintiffs,

the Williams family, the schedules show that they “need”

$296.15. When those standards are applied to the Plaintiffs,

the Gary family, the schedules show that they “need”

$331.50. However, in each case the “maximum grant”

regulation, set out aBove, only authorizes a grant of $250.

The Plaintiffs contend that because of this effect the

“maximum grant” regulation is an impermissible statewide

regulation under the equal protection and due process

clauses of the Fourteenth Amendment to the United States

Constitution and inconsistent with both the State and

Federal enabling statutes.

Among other hardships wrought by the “maximum

grant” regulation, the Plaintiffs assert that the $250 limita-

tion destroys family unity and establishes an unrealistic

standard of living inconsistent with the Department’s own

notions of what is “needed”. Plaintiffs apparently ignore

the very practical reason for the limitation, namely, that

it is a legitimate way of allocating the State’s limited re-

sources available for AFDC assistance.

In another context, with respect to recoveries by AFDC

recipients, a federal court has observed:

. .. The plain flaw that nonetheless destroys plain-

tiffs’ thesis is that it is brought to the wrong forum.

Plaintiffs’ complaints might move us to vote for

changes if we sat as state legislators. But they do

not approach the showing of irrationality or arbitrari-

ness warranting exercise of the limited veto power of

the federal judiciary under the Fourteenth Amend-

ment.

“Against plaintiffs’ views, as defendants point out,

there are arguments of policy which can scarcely be

dismissed as frivolous, whether or not we would find

them convincing if the judgments of policy were for

us. The State is entitled, they note, to consider rela-

tive need and available resources in distributing its

limited welfare funds.” Snell v. Wayman, 281 F.

Supp. 853, 862 (D.C. S.D., N. V., 1968).

* * * * * *

“We sketch these countervailing points for the

single purpose of indicating what seems plain to us —

that we could hold the statutes unconstitutional only

if we were invested by the ‘convenient vagueness’ of

the Due Process Clause with a power, long since

denied us, to invalidate state laws ‘because they may

be unwise, improvident, or out of harmony with a

particular School of thought’.” (Citations omitted.)

“To be sure, cases like those just cited reflect mainly

the recognition of our highest Court during the last

thirty years or so that it does not sit as final arbiter of

state social policies affecting matters of business and

industrial regulation. .. Id.

„ * * * * ®

“And, it is said, the subject welfare administration,

where the primitive needs of desperate people are

at stake, is altogether different. There is a difference,

certainly, but not a constitutional one — not any that

commissions us to tell those the people elect how they

should resolve competing values of the kind here in

question.

“It is appropriate from time to time to appreciate the

full measure and continued vitality of what Mr. Justice

Holmes meant when he said: ‘The 14th Amendment

does not enact Mr. Herbert Spencer’s Social Statics.’

Lochner v. State of New York, 198 U.S. 45, 75, 25

S. Ct. 539, 546, 49 L. Ed. 937 (1905) (dissenting). Now

that his dissenting thought has won the day, we ought

not to trivialize the achievement by viewing it only

as the interment of Spencer’s social doctrines. The

principle applies to the social philosophers that most

of us, including judges, find more persuasive than

Spencer. If we were free to enforce what we may

modgstly deem our more enlightened view, we might

seriously consider the changes plaintiffs propose. But

we have no such power, and it is better in the end

for everyone that this is so.

“We were reminded only the other day, though

the context was different, of the basic principle: The

purpose of the Constitution and the Bill of Rights,

unlike more recent models promoting a welfare state,

was to take government off the backs of people.’

Schneider v. Smith, 309 U.S. 17, 25, 88 S. Ct. 682, 19

L. Ed. 2d 799 (1968). The principle counsels that it is

not for federal judges to be ‘liberal’ or ‘conservative’

in advancing and ordering measures which undoubt-

edly relate to basic matters of human decency and

welfare. The constricted test in this forum is one of

minimal rationality. By that test plaintiffs’ due

process argument must fail.” Id. at 863.

* . * * * *

“Like the life of the law generally, the Fourteenth

Amendment was not designed as an exercise in logic.

It is ancient learning by now that a classification meets

the equal protection test ‘if it is practical, and is not

reviewable unless palpably arbitrary’. Orient Insur-

ance Co. v. Daggs, 172 U.S. 557, 562, 19 S. Ct. 281, 282,

48 L. Ed. 552 (1869). If the classification has ‘some

reasonable basis’, it cannot be held offensive to the

Equal Protection Clause ‘because it is not made with

mathematical nicety or because in practice it results

in some inequality.’ Lindsley v. Natural Carbonic

Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 340, 55 L. Ed.

369 (1911). The problems of government are practical

ones and may justify, if they do not require, rough

accommodations — illogical, it may be, and unsci-

entific.’ Metropolis Theatre Co. v. City of Chicago, 228

U.S. 61, 69-70, 33 S. Ct. 441, 443, 57 L. Ed. 730 (1913).”

Id. at 865.

The Supreme Court, considering categorical assistance

programs under AFDC among the states, has observed:

„. . . There is no question that States have con-

siderable latitude in allocating their AFDC resources,

since each State is free to set its own standard of need

and to determine the level of benefits by the amount

of funds it devotes to the program.” King v. Smith,

36 L.W. 4703, 4706 (1968).

The Supreme Court further noted that:

“HEW’s Handbook, in Pt. IV, § 3120, provides that:

‘A needy individual . . [under AFDC] is one who does

not have income and resources sufficient to assure

economic security, the standard of which must be

defined by each State. The act recognizes that the

standard so defined depends upon the conditions exist-

ing in each State.’ (Emphasis added.) The legislative

history of the Act also makes clear that the States have

power to determine who is ‘needy’ for purposes of

AFDC. Thus the Reports of the House Ways and

Means Committee and Senate Finance Committee

make clear that the States are free to impose eligi-

bility requirements as to ‘means’. H. R. Rep. No. 615,

74th Cong., Ist Sess., 24 (1935); S. Rep. No. 628, 74th

Cong., Ist Sess., 36 (1935). The floor debates cor-

roborate that this was Congress’ intent. For example,

Representative Vinson explained that ‘need is to be

determined under the State law.’ 79 Cong. Rec. 5471

(1935).” Id. at 4706.

For these reasons the constitutional question is insub-

stantial and does not state a claim for which relief can be

granted.

CONCLUSION

For the reasons set out above, together or aiternatively,

the Complaint should be dismissed.

(Signatures and Certificate of Service.)

United States District Court for the

District of Maryland

' ANSWER

Now come Edmund P. Dandridge, Jr., Chairman of the

State Board of Public Welfare; Raleigh C. Hobson, Director

of the State Department of Public Welfare; and Mrs.

Barbara Stevenson, Howard W. Murphy, Julius O. Shuger,

Dr. W. Richard Ferguson, Lester S. Levy, Nicholas C.

Mueller, Calhoun Bond and Mrs. Charles B. Harris, mem-

bers of the State Board of Public Welfare, by Francis B.

Burch, Attorney General and Frank A. DeCosta, Jr.,

Assistant Attorney General, their attorneys, and for an-

swer to the Complaint filed herein respectfully say:

First Defense

The Complaint fails to state a claim against the De-

fendants upon which relief can be granted.

Second Defense

Poor relief is a state not a federal question.

Third Defense

1. The Defendants admit the allegations contained in

the first and second paragraphs of Section I of the Com-

plaint and in Sections III, IV, V, VII and X thereof.

2. The Defendants deny the allegations contained in

Sections II, VI, VIII, IX, XI, XII, XIII and XIV of said

Complaint.

Wherefore, having fully answered said Complaint, De-

fendants pray that the same be dismissed.

(Signatures and Certificate of Service. )

United States District Court for the

District of Maryland

STIPULATION OF FACTS

Come Now the Plaintiffs and Defendants by their un-

dersigned attorneys and respectfully submit to the Court

stipulations of fact which are intended to narrow the is-

sues and save time of the Court.

Other than as admitted in the pleadings or as such ad-

missions may be changed from the pleadings, the parties

respectfully show to the Court the following agreement.

as to facts and issues:

1. But for the maximum grant provision of Rule 200,

Section VII 1 of the Maryland Manual of the Department

of Public Welfare, Part II, the schedules for determining

the cost of subsistence needs issued by the Maryland State

Department of Public Welfare (attached to the Complaint

as Exhibits BI, BS) would entitle Plaintiff Linda Williams

and her eight (8) children to receive a grant of $311.15

per month and entitle the Gary family to receive $331.50

per month. (Attached hereto in the Computation of the

Amount of the Grant as Stipulation Exhibits 1 and 2). The

maximum grant provision of $250 per month is less than

the minimum subsistence needs of Plaintiffs Linda Wil-

liams’ family and the Gary family when computed accord-

ing to the above schedules of the Maryland State Depart-

ment of Public Welfare. The maximum grant provision

is less than the minimum subsistence needs of any eligi-

ble AFDC family unit consisting of seven persons or more,

since their minimum needs when computed by the same

schedules exceed the maximum payment of $250 per

month. The larger the eligible family the greater the dis-

parity between the maximum grant and the minimum

subsistence needs.

2. Linda Williams, one of the Plaintiff’s is the 33 year

old mother of eight children, ages 16, 14, 11, 10, 9, 7, 6 and

4 years old. She is now living at 928 East Eager Street,

Baltimore, Maryland in a six-room house, containing three

bedrooms.

The Plaintiff, Linda Williams is paying $69.00 a month

rent, and in addition to this rent, she must also supply her

home with coal heat.

The Plaintiff, Linda Williams, has been on welfare

(AFDC) ever since her husband, William Williams, left

her soon after their youngest child, Wanda, was born,

more than three years ago.

Since her husband left, Linda Williams has had no means

of support other than the $250.00 which she receives

monthly from the Department of Public Welfare. Because

there are no relatives to assist her with the care of her

children, it is necessary that she stay home with her chil-

dren at all times to care for them. She is also not able to

add to her welfare payments in any way because of a seri-

ous breast condition which she has, which has caused her

to have about five operations.

After payment of her monthly rent, and the cost for

heating her home with coal, she has less than $175 per

month to feed and clothe her family, and to provide them

with the other necessities of life. She is constantly forced

to buy clothes and shoes for her children on credit, and she

is already in serious debt. Most of her children need shoes

right now, and they sometimes stay home from school,

especially in the wintertime, because they do not have the

necessary clothes to wear.

She is trying to keep all of her family together with

her and to make up for the fact that their father is not at

home with them. This is very hard for her to do because

of her continuing lack of money. If Mrs. Williams had

enough money to pay for her family’s needs, she could pro-

vide a better home life for her family.

She has begun buying food stamps which are some help

but which still leave her with insufficient money for her

other daily needs. Sometimes, she doesn’t have enough

money to buy the amount of stamps required to partici-

pate in the program. Unless she can get some financial

help, she will have a difficult time supporting her family.

Junius Gary, is one of the Plaintiffs in this case. He is

38 years old and was married to Jeanette Gary in October,

1952, in Baltimore City. He is the father of eight children,

ages 11, 10, 9, 8, 7, 6, 5 and 4 years old. He is now living

at 1402 Ashland Avenue, Baltimore, Maryland, in a row

house which he and his wife, Jeanette Gary rent for the

sum of $75 a month. Besides paying this rent, he must

also heat this home, and there is no central heating system.

He must heat each room separately with gas space heat-

ers all over the house. This is very expensive and makes

his gas and electric bill very high, sometimes as high as

$50 a month. He needs a large house to provide room for

his eight children.

Mr. Gary has served two years in the United States

Army, from 1953 until 1955, and was honorably discharged

from the Army. After his active service was completed he

began working as a truck driver and chauffeur, the kind

of duties he had in the Army, but after an automobile ac-

cident, he was not able to keep up this work because of

dizzy spells and blacking out spells. Because of this con-

dition, he was not able to do work of any kind, and in

about March, 1962, he began receiving AFDC assistance,

since he had no other way of supporting his family. At

the time he began receiving AFDC assistance, all of his

eight children were already born, and since these benefits

have begun, Mr. and Mrs. Gary have not had any more

children. The Gary family receives the maximum grant

of $250 per month from the Welfare Department.

supplies. His gas and electricity is some-

times shut off, because he is unable to pay the bill. He is

forced to buy clothing and shoes for his children on credit

and he is constantly in debt as a result. Most of his chil-

dren need shoes and clothing now and sometimes they

have to stay home from school.

Mr. Gary wants to keep his family together but he has

a very difficult time getting along on the amount of money

that he receives from the Department of Public Welfare.

with other jobs, but

he is not able to hold a job because of his physical condi-

tion. Unless he can receive some kind of financial help,

besides the $250 a month, he will have a difficult time

to Junius Gary since October, 1952. Her husband has tried

the family but because of his physical condition

STIPULATION EXHIBIT NO. 1

Computation of the Amount of the Grant

Linda Williams and eight children

Requirements — monthly

. Shelter $ 45.00

. Subsistence Need 259.00

. School Supplies 4.50

(8.50 for 6th grade and under, $1.00 for 7th

grade and over

Insurance

Total Requirements

Resources

Requirements Less Resources

Amount of Grant

(subject to maximum grant of $250.00)

STIPULATION EXHIBIT NO. 2

Computation of the Amount of the Grant

Mr. & Mrs. Gary and eight children

Requirements — Monthly

1. Shelter

2. Subsistence

3. School Supplies

($.50 for 6th grade and under, $1.00 for 7th

grade and over

Total Requirements

Resources

Requirements Less Resources

Amount of Grant —

(subject to maximum of $250.00)

United States District Court for the

District of Maryland

(T. 1)

PROCEEDINGS IN OPEN COURT — 6-24-68

(T. 2) THOMAS SCHMIDT

DIRECT EXAMINATION

By Mr. DeCosta:

Q. Mr. Schmidt, your address, please? A. 704 Scarlet

Drive, Towson, Maryland.

Q. And are you employed with the State Department of

Public Welfare? A. Yes, sir. .

Q. What is your position with the Department? A.

Chief, Division of Fiscal and Statistical Management.

Q. How long have you been in that position? A. Two

and one-half years.

(T. 6) By Mr. DeCosta:

Q. How does the Department arrive at, quote, “need,”

end of quote, for its grants in AFDC? A. [Mr. Schmidt]

Well, there are several bases, based on the item of expendi-

ture or the item of need. For instance, in determining the

need for food, the Department uses the Department of Agri-

culture — what's called low-cost food allowance, and we

determine a need for food based on that for a family of cer-

tain size — various other elements, rent.

When we determine rent, there is a study made, and then

we try to determine what the rental cost is for the people

on welfare, what they are actually expending for rent.

So there are various ways in which the needs are de-

termined.

(T. 7) Q. All right, and this foundation is used to arrive

at your schedules which you apply to each applicant? A.

This foundation is used to arrive at the schedules but there

is the point of the schedule that we arrive at, may not be

approved through the budgetary process.

Q. I understand. In other words, it is conceivable that

your schedule could be in excess of your budgetary ability?

A. That’s correct.

Q. And that to the extent that there is an excess, you

must, because of your appropriation, disregard your higher

standards as set by the Department? A. The higher re-

quest.

Q. The higher request, yes. All right. A. Yes, sir.

(T. 8) A. [Mr. Schmidt] We requested that the 250

maximum and 240 maximum of the counties be eliminated.

Q. [Mr. DeCosta] All right. In other words, this was

$1,300,000 in excess of your budgetary needs if the maxi-

mum were to be applied? A. That is correct.

Q. And was that included in the Governor’s budget or

not? A. That was disallowed in the Governor’s budget.

Q. So that the Governor’s budget went to the General

Assembly for fiscal year 69 with the disallowance of

$1,300,000; is that correct? A. Yes, sir.

Q. Now, within your fiscal year 1968 budget, if there

were no 250 maximum, how much money in your present

budget, considering your deficit at which you are now run-

ning, is available in terms of percentage figures for you

to apply to each grant? A. If you are taking AFDC alone

as a single budgetary item—

Q. Alone. A. —there is an elimination of a maximum

fora (T. 9) year — would mean in effect that we would

run a 42 million deficit, or approximately 25 per cent of

the total general fund appropriation.

Q. And in order to absorb that deficit, how much in

terms of percentage figures would you be able to give to

each— A. Assuming—

Q. —element? A. Assuming funds weren't available

from other sources, this would mean approximately we

would have to reduce grant 25 per cent in AFDC across

the board.

Q. Now, are you including in this 25 per cent reduction

the number of family units that have been cut off and

the amounts of monies cut off by reason of $250.00 maxi-

mum? A. Yes.

Q. And how many family units would that be? A. Ap-

proximately 2300.

(T. 11) (Mr. DeCosta) Your Honor, I think his 75 per

cent includes the $4 million present deficit; and he has

not given us the figure yet, excludihg the deficit they are

running at; is that correct?:

(The Witness) [Mr. Schmidt] The 25 per cent figure in-

cluded the 3.2 million deficit plus the 957 increase in cost,

based on the elimination of the maximum.

(Judge Thomsen) The deficit in what you expect (T.

12) to have next year anyway, in AFDC—

(The Witness) That is our present deficit this year.

By Mr. DeCosta:

Q. That is 1968 fiscal deficit? A. Yes, sir.

(Judge Thomsen) The 1968 deficit. Well now, did they

give you enough money to eliminate that?

(The Witness) We hope to be able to get approval from

the Governor to transfer funds between the various pro-

grams in the agency in which we are not experiencing a

deficit, to cover this 3.2 million deficits in AFDC.

(Judge Thomsen) You mean for next year, to pay this

year?

(The Witness) For this year.

(Judge Thomsen) Then next year what is going to

happen?

(The Witness) We are projecting that we are going to

be running a deficit in AFDC next year. Our present pro-

jection is somewhat above $3 million.

(Judge Winter) But again, for next year do you project

that you will have unexpended funds in other aid pro-

grams that could conceivably be transferred to meet this

deficit?

(T. 13) (The Witness) Next year we are anticipating

an overall deficit in the agency.

By Mr. DeCosta:

Q. Now, what is your present surplus, overall surplus

available in the agency? A. Combining all programs, we

are estimating that we'll have a surplus of $274,000 at the

end of this year.

Q. And what is your present surplus without regard to

the end of the year? A. Well,—

Q. Quarter of a million dollars? A. Well, I can’t esti-

mate what the surplus is today but I make my projections

on a yearly basis, an annual basis. I don’t break them

down by month.

Q. So what is your testimony with regard to the present

overall surplus for the fiscal year 68? A. $274,000 ap-

proximately.

(Judge Thomsen) But even so, I don’t understand it.

The total appropriation is $42 million for AFDC. Why

would an increase of $957,000, or $1 million, let’s say, (it

looks like one out of 42) why would it increase it 25 per

board?

(T. 14) (The Witness) Well, that is the second part of

the question. We are now talking about state funds, gen-

expenditures since the State of Maryland is above the fed-

eral matching maximum, all additional expenditures are

state expenditures.

(Judge Thomsen) You say the state puts up 16 million?

(The Witness) The state puts up 16 million, yes, sir.

(Mr. DeCosta) Out of the 42. The rest comes from the

federal government. Peanuts from the local.

(The Witness) Yes, sir.

* * * „ 8 *

(T. 17) A. [Mr. Schmidt] Twenty-two dollars per re-

cipient. They match on the basis of $32.00 state expendi-

tures of which they pick up 22 and anything — and the

state picks up the remainder $10.00. Anything above $32.00

average cost per recipient is borne entirely by the state.

Q. [Mr. DeCosta] And your state average cost per re-

cipient,is presently what, $37.00 approximately— A. It’s

running close to $40.00 now.

Q. So that the federal government is at its maximum

of $22.00 presently? A. That’s correct.

(T. 18) (Judge Thomsen) Well, if five or six children —

let’s assume it is six just to give us something other than

the father and mother (that is eight people in the house),

and you would get and give them 250 and you would be

getting from the federal government, if there were six

children in the unit, six times twenty-two; is that right?

(The Witness) [Mr. Schmidt] That’s correct.

(Judge Thomsen) Now, suppose instead of there being

six children in the unit, there were nine children in the

unit; that would be three more chilren. Would the family

still get $250.00?

(The Witness) Yes, sir.

(Judge Thomsen) Would you get six times 22 or nine

times 22 from the federal government at this time?

(he Witness) We would receive a maximum total num-

ber of persons in the case, in this case nine children, for

nine persons.

ra.

(Judge Thomsen) So that you were getting that now

even though you have the maximum?

(The Witness) Yes, sir.

(Judge Thomsen) You get more from the federal (T.

19) government if there are nine children in the family

than you would get when there are only six children in

the family?

(The Witness) Yes, sir.

By Mr. DeCosta:

Q. Is it fair to say that the federal maximum is related

to the individual whereas your state maximum is related

to total assistance to family unit? A. That’s correct.

Q. So that the record is clear on this: I gather your re-

sponse to Judge Thomsen was that if you divide nine into

your state maximum of 250, or ten, that would reduce

your per-individual appropriation, wouldn’t it? A. That’s

right. It would tend to reduce the average grant per re-

cipient total case—

. * * * * *

(T. 21) (Judge Winter) All right, under the present pro-

grom and under the present law, is there any difference in

the amount of state funds paid to the family of six as com-

pared to the family of nine children?

(The Witness) [Mr. Schmidt] Well, based on our match-

ing, if we determine matching on individual cases, there

would be. We would in effect be attaining a greater por-

tion of federal matching for the family of nine than we

would of six.

(Judge Winter) Well, I’m asking you now if in fact you

are attaining a greater portion of matching in a family of

nine children than a family of six?

(The Witness) I would have to say yes.

(Judge Winter) So it is fair to state, is it not, that the

effect of the maxima is at least two-fold: First of all it

puts a limit on how much money can go out, and conserves

state funds in that regard, does it not?

(The Witness) Yes, sir.

(Judge Winter) And it also has the effect, where the

maximum amount is paid to a family of more children

than the sum of which would add up to the maximum, of

shifting a greater proportion of burden of those welfare

payments to federal funds.

(The Witness) Yes, sir.

CROSS EXAMINATION

* * * * * *

(T. 25) By Mr. Matera:

Q. Now, in making up the schedules in which you deter-

mine the amount of money that a family unit would be

entitled to, who is eligible for welfare, you do determine

(T. 26) the number of individuals in the family? A. [Mr.

Schmidt] That is correct.

Q. And from that figure you determine how much each

individual in that family is entitled to? A. Yes.

Q. So that in a family which is not affected by the

maximum, each one of the individuals in that family

would receive a computed amount of money in accordance

with those schedules; isn’t that correct? A. That's cor-

rect.

Q. So that the effect of a maximum then, once the family

unit exceeds six individuals, is to reduce the amount per

person that that family unit receives from the Department

of Welfare? A. Once a crossover from the maximum is

established, that is the effect of it.

(Judge Thomsen) Actually the amount has been sliding-

scaled down for each additional child; isn’t that correct;

with one child per family you get more per child than for

two, three or four. But it hits you double when you get to

the maximum.

(T. 27) By Mr. Matera:

Q. But in effect, Mr. Schmidt, what happens when the

family unit exceeds six individuals is that the Department

of welfare computes the amount of money the individuals

over and above six should receive and yet cannot compen-

sate those individuals because of the maximum grant regu-

lation; isn’t that true? A. [Mr. Schmidt] I believe the case

worker does compute the total need and that then the 250

would be the maximum.

Q. So that in a family of more than six units, he does

compute the total family need and then if that family

need, as it will be, is above $250.00, the payment then that

that family receives is $250.00. Isn’t that so? (T. 28) A.

Assuming that there are no resources available, I think that

would be the case.

Q. So, in effect, even though the individual in a family

of more than six units would be entitled to a greater

amount per person than they actually received, they are cut

off by the maximum regulation? A. Yes.

Q. Without the schedule, you would not be able to tell

me what a family unit of nine should receive, can you?

A. No. No, sir.

Q. But, in effect, each individual in that family would

receive less than the Department of Welfare computes to

be their minimal need because of their maximum grant

regulation, isn’t that so? A. That is correct.

* * * * * *

United States District Court for the

District of Maryland

(T. 1)

PROCCEDINGS IN OPEN COURT — 6-25-68

* * * * * „

(T. 21) (Circuit Judge Winter) Yes, I think it is fair

to state to you that at the conclusion of yesterday’s pro-

ceedings we went into conference and we found ourselves

in agreement on how there should be decided the points

which were advanced by the Defendants’ amended motion

to dismiss.

We had contemplated since the complaint was made that

Mr. Matera wanted at least the summer and could not be

prepared to proceed to submission of the case on the merits

until the fall, the filing of a written opinion dealing with

the various points at issue. It seems to us that in light of

the discussion today that several results follow.

The first is that we would unduly delay the proceedings

or unduly formalize the proceedings by preparing a formal

written opinion at this time and

Secondly, that we would be of help to counsel in prepara-

tion of briefs and in determining the scope of the issues

which we think are before us if we. were to announce, at

least in summary fashion, our conclusions resulting from

yesterday’s argument.

As we understand the argument that was advanced yes-

terday, the claim was made that the complaint should be

dismissed because the relief sought was barred or pre-

vented from being granted by this Court by the Eleventh

Amendment to the Constitution; secondly, that we could

not (T. 22) proceed to final judgment because of the

absence of indispensable parties and that the suit ought to

be dismissed at this stage for that reason.

Thirdly, we understood that there was an attack on the

composition or the jurisdiction — using jurisdiction in the

broad sense — of the Court in that there was not a sub-

stantial federal question presented to us by the pleadings

and 52

Lastly, that the Court ought to abstain from deciding the

alleged Constitutional questions, as well as the alleged

question of repugnance between the Maryland regulation

and the Federal Statute until such time as a court of the

State of Maryland decided whether the Maryland. regula-

tion was in conflict with the Maryland statute.

We find some of these grounds to have some merit:

others to have no merit. And we reach the conclusion that

the motion to dismiss should be denied.

On the Eleventh Amendment point, we are of the view

that the Eleventh Amendment would prohibit the granting

of relief claimed in Prayer 2(b) of the Complaint. Prayer

2(b) when viewed in the light of the allegations, which

are, of course, admitted to be true for this purpose by the

amended motion to dismiss, would amount to the grant of

(T. 23) a money judgment of forty-some dollars per month,

as I recall, in favor of Mrs. Williams and a greater amount

(the precise figure I do not recall) on behalf of the

Plaintiffs Gary.

This we think the Eleventh Amendment absolutely pro-

hibits since this aspect of the suit would in effect be a

suit between a citizen of a state and the state, where the

state has not consented to be sued; and we take judicial

knowledge of the fact that Maryland has not consented to

be sued.

This does not mean, however, that the suit is to be

dismissed, because it is perfectly clear by established law

laid down over a number of years that a suit against a

state officer in his official capacity, alleging that in his

official capacity he is administering or executing or promul-

gating or carrying into effect an invalid law or an invalid

state-wide regulation, is not a suit such as is proscribed by

the Eleventh Amendment. And to that extent, it would

seem to us that the complaint is not barred and we could

proceed to hear it and adjudicate it on the merits.

What I said about the Eleventh Amendment is the key

to the contention that there is a lack of indispensable par-

ties here. I think we all agree that if we had jurisdiction

and the Eleventh Amendment did not prohibit us from

(T. 24) granting the type of relief which is sought in

Prayer 2(b), that it would be necessary for us to have one

or more of the budgetary and appropriation officials of the

state of Maryland as defendants before the Court before

the Court could proceed to final judgment.

Since we have concluded that we could not give a money

judgment or a form of decree which is tantamount to a

money judgment in this case, it follows that because the

parties before us, which are the officials of the state of

Maryland, ad the only officials of the state of Mary

who have the duty to enforce and to apply the

the validity of which is in question, are named as parties

defendant, that all indispensable parties are before the

Court; and the absence of an indispensable party is not

established. So that on this ground, the Court too could

proceed to final adjudication.

At this point, and particularly because the matter is

about to be submitted to us, we will not dwell on our views

on the substantiality of the Constitutional question except

to say that at least so far as the equal-protection clause of

the Fourteenth Amendment is concerned, we believe that

the plaintiffs’ contentions are not frivolous. This is not to

say that we accept them or that we may not ultimately

reject them but certainly this is note (T. 25) such an in-

substantial or frivolous claim of denial of Constitutional

rights that we feel in any sense that we would be justified

at this point in dismissing the litigation out of hand.

On the abstention point, our views are that abstention

is proper in speaking in the abstract in cases which have

exceptional circumstances. We do not think that this is

the type of case in which we ought to abstain. We reach

this conclusion for a number of reasons.

The Plaintiffs’ contention, as set forth in their complaint,

that the Maryland regulation is repugnant to the Maryland

statute is only one of three major contentions advanced,

in addition to which jurisdiction of the Court is invoked

under the Civil Rights Statute; and we have a very recent

expression from the Supreme Court of the United States in

King v. Smith, that where a suit is brought under the

Civil Rights Statute, and where there appears to be a not

insubstantial claim of denial of Federal Constitutional

right, that it is proper for a Federal Court to go forward

with an adjudication on the merits irrespective of whether

a state court, by state construction of state law, at some

later date might achieve the same result and make it un-

necessary for the Federal Court to act. .

(T. 26) In short, on the abstention point, we do not

think that there are here the peculiar circumstances which

nnn ̃ a Ee ee ee ee ae

would cause us to abstain; and I think we note also in

that even if we were to conclude to abstain, this

would not mean that the suit would be dismissed. It would

mean simply that the proceedings would be stayed until

appropriate litigation could be instituted or brought to a

conclusion in a state court which would determine the

state issue. But the latter is academic because we con-

cluded in this case that we should not abstain.

It is for those reasons that we will deny the motion to

dismiss but, in denying the motion to dismiss, of necessity

we are limiting the issue as to the nature of the relief

which the plaintiffs are entitled to recover or receive.

Now, I might ask Judge Thomsen and then, in turn,

Judge Harvey, if they have any additional or supplemen-

tary views that they would like to state on these various

points.

(District Judge Thomsen) No, I concur.

(District Judge Harvey) I concur completely.

(Circuit Judge Winter) That being so, Mr. Matera, I

think you would appreciate that we want your briefs

limited to things that we think are live issues before us.

* * * 0 * *

United States District Court for the

District of Maryland

INITIAL OPINION

Winter, Circuit Judge:

Before us now! on the pleadings, stipulations and testi-

mony are plaintiffs’ prayers that we declare invalid and

For the reasons stated in an oral opinion from the bench, we

heretofore denied a motion to dismiss, based on various grounds.

We also indicated that to the extent that the prayers of the com-

plaint might be construed to require the Governor and General As-

sembly of Maryland to appropriate additional moneys to make larger

payments to plaintiffs, such relief was barred by the Eleventh Amend-

ment.

permanently enjoin the enforcement of the “maximum

grant” regulation of the Maryland Department of Public

Welfare which, summarized, provides that, irrespective of

the need and eligibility, a family receiving benefits under

the Aid to Families with Dependent Children Program

(AFDC), established by the Social Security Act of 1935,

as amended, 42 U.S.C.A. §§601-609, may not receive in ex-

cess of $250.00 per month. The declaration sought is that

the “maximum grant” regulation is inconsistent with the

Social Security Act and that it denies equal protection of

the laws. Jurisdiction is properly invoked under Civil

Rights Act, 28 U.S. C. A. 51343 (3) and (4), and 42 U.S. C. A.

81983, and the case is an appropriate one for a three-judge

District Court under 42 U.S. C. A. 2281. King v. Smith,

392 U.S. 309 (1968).

Maryland participates in AFDC. 8A Amn. Code of Mary-

land, Art. , §§44A, et seq. By regulations approved by

the Secretary of Health, Education and Welfare, Maryland

has adopted a schedule setting forth standards of need. The

schedule lists the monetary need for family units of one

to ten persons, with decre

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