CARLESON v. REMILLARD

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Argument of Jay S. Linderman

Chief Justice Warren E. Burger: We'll hear arguments next in 70-250, Carleson against Remillard.

Mr. Linderman, you may proceed whenever you are ready.

Mr. Jay S. Linderman: Mr. Chief Justice and may it please the Court.

This case presents the question of whether the Social Security Act requires California to grant welfare benefits to children whose fathers are out of the home on active duty in the military service.

Specifically, the question is whether under Title IV of the Social Security Act, the Aid to Families with Dependant Children Program, a military orphan who is otherwise needy, in other words, the income standards of the family are sufficiently well that they qualify under the state standard, need standard, whether that child is “dependent child” under Section 406 (a) of the Federal Act.

Justice William O. Douglas: Is the entire group excluded or just the case by case, child by child?

Mr. Jay S. Linderman: The entire group of military orphans, Your Honor?

Justice William O. Douglas: Yes.

Mr. Jay S. Linderman: Servicemen children?

The entire group is excluded, as are the children of a father who is employed, away from home in a civilian capacity.

In other words, the exclusion under the California statute or regulation is that if there is a breadwinner in the family but out of the home, the child, be it a military or civilian employment situation, the child is ineligible.

Justice Potter Stewart: This is true regardless of whether or not the father was drafted or volunteered, and regardless to the nature of his service and regardless to his rank or grade.

Mr. Jay S. Linderman: That's correct, Your Honor.

Chief Justice Warren E. Burger: Now.

Let me ask --

Justice Harry A. Blackmun: And regardless of whether he is sending any part of his income home and regardless of whether he is a Prisoner of War?

Mr. Jay S. Linderman: The assumption, Your Honor, is that the child is needy where he maybe sending some money home, but it's inadequate in terms of the need standards under California law.

Chief Justice Warren E. Burger: But would it be difficult, would it be impossible or very difficult for California to determine how much of an allotment of a drafted man in confinement to that, a drafted man in the service, how much he is sending home on the allotment and then at least gives the benefits to the extent of the difference.

Would that be administratively a difficult thing to do?

Mr. Jay S. Linderman: Is Your Honor's question the administrative burden?

Chief Justice Warren E. Burger: Yes.

Mr. Jay S. Linderman: I am not certain that I can answer it.

I assume it would be relatively difficult in that presumably there would be a fluctuating amount of income.

Chief Justice Warren E. Burger: Well, not if he is a lower class that is in the first few grades, there is a fixed allotment sent home?

Mr. Jay S. Linderman: There is, but then the question is that the state would have to ascertain on a month-by-month basis that in fact that amount did get there, so that I believe the answer to Your Honor's question in terms of the administrative effort is that it would have to be an ongoing month-to-month determination or verification of the precise amount that did actually end up in the hands of the family.

Justice William J. Brennan: Well, Mr. Linderman, I gather that under the California practice, where the absence is due to imprisonment or medical treatment or parental separation, that inquiry is made on an individual basis, isn't it?

Mr. Jay S. Linderman: That's correct.

Justice William J. Brennan: Well then what's the distinction between those classifications and this across the board as applied to children of fathers absent on military orders?

Mr. Jay S. Linderman: The distinction I believe, Your Honor, is that California concedes in the instances that you have mentioned that the federal law requires the granting of assistance.

We view or acknowledge that the situation of an imprisoned father or a deported father or dissolution of the marriage and so on that, that type of child is clearly within the scope and purpose of the Social Security Act.

Justice William J. Brennan: And yet the guideline, all of these are embraced in the same guideline, aren't they, that's that 34222?

Mr. Jay S. Linderman: That's the HEW.

Justice William J. Brennan: That's what I mean.

Mr. Jay S. Linderman: Yes.

Justice William J. Brennan: And that one, within this interpretation of continued absence, the state agency in developing its policy will find it necessary to give consideration to such situations as divorce, pending divorce, desertion all the way down the line, service to the armed forces or other military service and makes no distinctions of a kind that California draws, does it?

Mr. Jay S. Linderman: No, HEW merely requires as the regulation says that the state will find it necessary to give consideration to these groups in the process of the stage to finding its own eligibility policy.

This has been the traditional --

Justice William J. Brennan: Of course, but find it necessary to give consideration, may it distinguish in the way it gives consideration under that regulation?

Mr. Jay S. Linderman: Distinguish, in the sense, yes that you can find one group eligible and another group ineligible.

Justice William J. Brennan: Yes, but the sounds what problem is.

The problem is that you treat each case on an individual basis in all categories, except service in the armed forces?

Mr. Jay S. Linderman: No that's not correct, Your Honor.

Justice William J. Brennan: It's not!

Mr. Jay S. Linderman: In the categories of, say, desertion or imprisonment --

Justice William J. Brennan: Yes.

Mr. Jay S. Linderman: -- as a group, the children are eligible provided that they then meet the need standard as well.

In other words, as a group, California determines the child of an imprisoned father to be eligible provided that there is sufficiently lower amount of income which undoubtedly there is going to be with the father in prison, but as California makes group determinations of eligibility both with respect to, yes, they are eligible.

Justice William J. Brennan: Does that suggest Mr. Linderman that the Court of Appeals is wrong because I am reading in cases of a father's absence due to imprisonment or temporary medical treatment or parental separation, California considers each applicant's situation individually.

Mr. Jay S. Linderman: Yes Your Honor, we submit that --

Justice William J. Brennan: That's wrong.

Mr. Jay S. Linderman: -- the court is wrong.

Justice William J. Brennan: I see.

Mr. Jay S. Linderman: And as specifically so said in our brief, we do challenge that, that that is a misstatement of what California does do.

I think the question here though is not whether California administratively could do this or whether in terms of social policy they should do it, the question is, has Congress compelled California to do it or not and our position is that it has not.

Congress has defined the group of eligible children to be those that lack the support of a parent due to death, incapacity or continued absence.

This case specifically is the question what does Congress mean by continued absence.

At the time that the case was argued below, all we had was the HEW regulation that Mr. Justice Brennan has just referred to that left it to the state to determine what continued absence met within the scope of HEW's interpretation which was a substantial severance, economic and socially, within the family.

And cited as their example, HEW cited as the example, the situation where the father simply deserts the family and disappears.

The mother knows not where he is or when he will be home or if he will be home.

A complete destruction of the sociological and economic ties between the father and the child, that's the example that HEW gives.

We submit nothing more than that in the Act itself and thus given the 35 years that HEW has had this policy and the fact that over the years, the states have exercised the option with Congress doing nothing to disapprove this, and with the result that there is a roughly 50/50 split between the states in terms of which ones do and which ones do not grant aid that we think that the states should be continued the option of defining their own eligibility policies.

The question, of course, then arises of what impact on this past pattern does the Court's recent decision in Townsend case have on this case.

Townsend, of course, is the Illinois AFDC case in which the state of Illinois had defined an eligible student to be one who was enrolled only in a vocational school, excluding those that were enrolled in academic institutions; colleges, universities non-vocational.

The Court in Townsend held -- found that Congress had explicitly defined what it meant by a student.

The Federal Act itself specifically said that a student was any child up to the age of 21, enrolled in any educational institution and furthermore that Congress had made clear that it intended that the states must grant assistance to all types of students.

Therefore, the Court held that Illinois obviously could not define student in a fashion that directly conflicted with the definition provided by Congress.

I would submit that on its facts, Townsend is completely distinguishable from this case, in that there is neither the precise congressional definition of continued absence, nor is there any indication, legislative history-wise or otherwise, that Congress intended that the states have to grant assistance in all types of continued absence or that there had to be a nationally uniform definition to the term.

Assuming for the sake of argument that we have misread the Townsend case and that it does mean in the Court's view that there must be a nationally uniform standards for all aspects of the AFDC Program and that Congress or HEW, presumably HEW, must give content to the vague term used by Congress, we would submit then that the definition should be held to be of ineligibility for serviceman standards for the following reasons.

In the case of King versus Smith, this Court traced the legislative history and outlined, delimited the contours of the AFDC Program as the Court perceived it, which was that Congress was not intending to aid all needy children, but rather that it was endeavoring to provide financial assistance to states for the purpose of aiding children who lacked a breadwinner.

I think a reading of the King case makes clear that it's a lack of a breadwinner and not merely a wage earner who can't bring home enough bread.

In other words that AFDC is not designed to be a subsidy for low paying employers be it the United States government or otherwise.

Chief Justice Warren E. Burger: Well, let me ask you on that score.

Suppose the ostensible breadwinner, the father, was handicapped and worked at the goodwill and because of his handicap, could make only $118 a month, would that automatically make them an ineligible for aid to dependent families and children?

Mr. Jay S. Linderman: Unless that particular father -- I am assuming full employment in terms of number of hours, he is fully employed.

Chief Justice Warren E. Burger: Yes, but he is blind or whatever, some disabilities of it -- and let's not make it blind because then he would be getting some income under Social Security, but he has got some handicapped, maybe just basic intelligence, but he works at his full capacity and makes this nominal amount.

Mr. Jay S. Linderman: And is living in the home --

Chief Justice Warren E. Burger: He is trying to win the bread for the family.

Mr. Jay S. Linderman: I do not believe that that family would be eligible.

Chief Justice Warren E. Burger: Under the Federal statute or the regulations of California?

Mr. Jay S. Linderman: Under the Federal statute because he is an employed breadwinner living in the home.

Justice Potter Stewart: Unless it could be shown that he was physically or mentally incapacitated?

Mr. Jay S. Linderman: Incapacitated.

But again then he has to be out of – no, they they might qualify under that provision.

I am not completely --

Justice Potter Stewart: It's continued absence from the home or physical or mental incapacity?

Mr. Jay S. Linderman: I am not -- to be utterly honest, I am not completely clear whether in that instance, there would be eligibility or not.

But I think then --

Chief Justice Warren E. Burger: Well, assuming for the moment that there would be eligibility and this $118 a month does not bar an eligibility.

Now then a private first class of lowest grade, married with dependents is permitted, I understand as a matter of regulation, perhaps a statute, $118 a month allotment for his family.

Could you conceivably have an arguable equal protection argument if the man at home earning a $118 was treated in a different way from the drafted solider earning enough so that there was $118 a month allotment?

Mr. Jay S. Linderman: I suppose conceive -- I am assuming now that you are talking not in terms that California makes decision on its own, but that --

Chief Justice Warren E. Burger: No, I am just saying, is there arguably an equal protection problem there?

Mr. Jay S. Linderman: I suppose that it's conceivable that there is, Mr. Chief Justice, but I think the equal protection question that the appellees in this case purport to raise is a completely different type of situation from the one that Your Honor is hypothesizing.

But again, I believe that it's correct to say that in the example proposed that the handicapped father, in that situation the child would not be eligible.

We would submit that again referring to the King case that Congress recognized and the court recognized in the King case that the problems posed by and the solutions for unemployment and underemployment are drastically different and that AFDC was designed to aid not the underemployed breadwinner.

Justice Potter Stewart: Really not the unemployed breadwinner either, was it?

It was designed to aid children and families where there was -- where one of the parents was not there, isn't that right?

Mr. Jay S. Linderman: That's correct, but it subsequently has been expanded to include the unemployed, AFDC has now been expanded to include the unemployed father in the home, but not the underemployed.

Turning then to the equal protection question which the appellee's raise which again dovetails I believe with our suggestion or our contention that if there must be a uniform standard vis-à-vis a servicemen families that it should be ineligibility that for the same reason, it's not a denial of equal protection to deny benefits to serviceman's families when at the same time granting them to families of, for example, prisoners.

It's (Inaudible) I believe that the Equal Protection Clause does not require states or federal government to treat classes that are in fact different, legally differently.

And I would submit that the situation, the economic situation and the sociological situation posed by a serviceman on one hand, a prisoner or deportee on the other are dramatically different.

First of all, the imprisoned father can offer no economic security to his family.

The service --

Justice Harry A. Blackmun: But suppose he were amending there a loophole or a little --

Mr. Jay S. Linderman: Mr. Justice Blackmun, then I think we're not talking about the income generating capacity or the sociological impact in terms of the intrafamilial strains that imprisonment would cause.

But of course, if he is a millionaire and the money is available to the child, the child is not going to be eligible, no matter whether the father is a millionaire PFC or whether he is a millionaire prisoner.

The child --

Justice Harry A. Blackmun: Or whether he is away from home?

Mr. Jay S. Linderman: Or whether he is away from home, the child is not needy there which is the second facet of eligibility which is not present in this case.

We are assuming that the child is needy in this case and the state has conceded that the plaintiffs, the appellees in the case, the named plaintiffs are needy and by definition, the class represented by the named plaintiffs are those families that are needy.

So that aspect of eligibility is not an issue in the case.

It's strictly the question of dependency or whether the father is continuously absent.

Again then the economic implications are different.

The imprisoned father or deported father can offer no economic security to the child and sociologically we believe that there is a substantial difference both in terms of the disruptive influence in terms of the family ties of military service and imprisonment with a super imposition of the social ostracism that goes with imprisonment or deportation which we think in a normal situation anyway is totally lacking in the case of military service.

Chief Justice Warren E. Burger: Well, now does the legislative history of the act of Congress make these distinctions you're talking about or are these just advanced as your considerations?

Mr. Jay S. Linderman: We view the legislative history of the Act as supporting these contentions and furthermore this Court's tracing and delimiting of the Act's scope in King versus Smith as erecting these kind of limits around the program.

As I read King, the suggestion is there that Congress was concerned in the AFDC program with a limited class of children and the Court says in King specifically that the Act is not designed to aid all needy children, but the class is only those that lack the breadwinner.

And the Court talks in King about the lack of the likelihood of any economic security enduring to the child in the King case from the mother's paramour who owe the child no duty and support.

It's from that that I draw the economic aspect that there is a lack of likelihood of economic protection for the child from the father and that that mashed with the economic problem is the social impact, the destruction of the family ties through death, divorce, continued absence from the home.

But that analogizing the continued absence facet of eligibility to the other facets; death and incapacity, desertion and so on, I think it's from that, that I withdraw the sociological or intrafamilial association that I am referring to.

I don't think it's of my imagination, but I think that it's clearly as Congress has limited the program.

Now the District Court adverts briefly to the possibility that my characterization of a less severe dislocation occurring in the service situation as opposed to imprisonment is perhaps overstated.

Well, it may very well be that in certain service situation, service connected absences, that there is indeed a severe dislocation.

Assuming that nothing else happens though in terms of a breakup of the marriage, the fact that in certain military situations, there may be severe dislocation, does not mean that there is a violation of the Equal Protection Clause.

As the Court has pointed out on numerous occasions that Clause does not require absolute mathematical precision in drawing the classes and sovereign equity is more right.

But furthermore, if in the situation of the service connected absence, other factors of dislocative significance, that is a divorce occurs as the result of the father being drafted, the child will then become eligible.

It's -- California's position is that military absence by itself is insufficient, but if the other factors such as a divorce, a breakup of the marriage occurs, then the family would be in the situation which we believe Congress intended to cover by AFDC.

But in the normal situation where the only thing that exists to arguably give rise to eligibility is the father's absence by reason of his employment, be it military or civilian, then California does not grant assistance and we do not believe that either the Social Security Act or the Fourteenth Amendment requires that result.

I have a few moments left.

So I'd like to reserve --

Chief Justice Warren E. Burger: You may reserve that.

Very well, Miss Massey.

Argument of Carmen L. Massey

Ms Carmen L. Massey: Mr. Chief Justice and may it please the Court.

The issues that are presented for this Court in this case and the structures within which they are presented are straightforward.

The Federal Social Security Act of 1935 provided for the implementation of the AFDC program.

Under that statute, states which provide financial assistance to families, with what are called dependent children, may be provided federal matching funds -- will be provided federal matching funds.

The Federal Social Security Act further defines a dependent child as one who has been deprived of parental support or care by reason of the death --

Justice William J. Brennan: May I stop to there, Miss Massey.

Where is it that -- thus statute expressly lead to the states the definition of “continued absence” from the home?

Ms Carmen L. Massey: Our argument is that it does not.

Justice William J. Brennan: No.

The District Court suggested that it did?

I just wondered what provision, they don't cite anything, they refer to when they said that?

Ms Carmen L. Massey: Your Honor, I think the District Court opinion is somewhat ambiguous on that subject.

However, in light of the rest of the opinion, I think what the District Court was saying was that the court or the state must determined on an individual basis as to whether or not continued absence exists in a particular case, including in the military service case.

Justice William J. Brennan: There isn't any doubt I gather that at least the regulations suggest that states do have discretion in the definition of continued absence from home, is that so?

Ms Carmen L. Massey: That is correct.

Justice William J. Brennan: Yes.

Ms Carmen L. Massey: However, in light of the Townsend case which expressly disapproved HEW's, what is it known as a condition 'X' --

Justice William J. Brennan: Yes.

Ms Carmen L. Massey: -- I think that is no longer a proper interpretation --

Justice William J. Brennan: Is 3422.2, is that condition 'X'?

Ms Carmen L. Massey: Pardon me.

Justice William J. Brennan: Is that -- is the one that deals here with the interpretations, HEW regulation, the one I was talking, is that condition 'X'?

Ms Carmen L. Massey: I think it is Your Honor.

Justice William J. Brennan: Oh!

I see.

Justice Potter Stewart: This one I couldn't hear.

Ms Carmen L. Massey: I believe that it is a part of the condition 'X' which was expressly disapproved by this Court in Townsend v. Swank.

The court below found that -- California has further defined the term dependent child by providing that when a needy child is deprived of parental support or care by reason of the continued absence of a parent and that absence is occasioned by his military service, there is no continued absence such as to give rise to dependency and AFDC eligibility.

The court below found the state regulation invalid on two grounds.

One that the Social Security Act mandates that all eligible individuals be granted AFDC benefits with reason proffers, and number two that the Department of Health, Education, and Welfare in its implementing regulation mandated that the states in developing their policy as to what constitutes continued absence from the home must take into consideration military absence.

And the court further read this to provide that the states must consider each case on its individual merits and not on the basis of the group to which our case belongs.

I would add at this point that the Department of Health, Education and Welfare through the Solicitor General has filed a brief in this case, indicating that it agrees with appellant's argument that the states are free to define continued absence from the home as they choose, but indicating that it disagrees with appellant's argument that military orphans as we have called them are not federally eligible for AFDC benefits, and it is the second argument that I would like to address myself to first.

We submit that when Congress used the words continued absence from the home that it meant exactly what the plain English definition of those words is.

When Congress said continued absence from the home, it meant those situations in which a parent is not physically present in the home and this non-presence can be expected to continue for a certain length of time which are called continued.

I would point out as an example of what continued absence means, the situation of the Remillard family in this case.

Mr. Remillard was in Vietnam for over a year.

During the time he was in Vietnam, he was not allowed to return to his family.

His family was not allowed to go and visit him.

By army regulation, the family was not even allowed to move to a point where they would be near him.

And certainly in this case, whatever continued absence might mean, it was present here and I would point out that the state has stipulated that there was continued absence in this case.

Justice Potter Stewart: But he had been over there as our ambassador to South Vietnam?

Ms Carmen L. Massey: And that his family had been free to join him?

Justice Potter Stewart: No.

Ms Carmen L. Massey: Alright, if Mr. Remillard had been the ambassador and if his family were not free to join him and if by some chance that family were also needy that is according to this California definition, unable to provide the basic necessities of life, then I would say, yes, that family would be eligible for AFDC benefits.

Of course, in the case of the ambassador it's highly unlikely that the family would be financially needy.

Justice Potter Stewart: Well now that I have interrupted you, is there anything in the -- nowadays in the military service that requires a serviceman to make an allotment to dependents?

Ms Carmen L. Massey: For grades E1, E2, E3, and E4, the regulations provide that a serviceman may initiate the basic allotment which consists of the basic allowance for quarters which is called to BAQ and which is a separate from the serviceman's pay and which also includes $40 per month which is taken out of the serviceman's pay.

Now if the --

Justice Potter Stewart: You say, he may do that, is that it?

Ms Carmen L. Massey: Well, the regulations provide that he may, but they further provide that if he does not and if the wife objects that certain procedures will be followed to ensure that she does receive her allotment.

Justice Potter Stewart: From his pay or from some other?

Ms Carmen L. Massey: From the same sources, the $105 for grades E1, E2, and E3, slightly more for grade E4, which comes from outside his pay and $40 which comes from in his pay.

Now there is also a provision in the allotment system that the serviceman may voluntarily add more to this allotment, but we are here considering with cases where the amount of money that is coming from the serviceman is inadequate to care for the basic needs of the family.

Chief Justice Warren E. Burger: In every case when the parent is absent, the constant factor is that demonstration of need, is it not?

Ms Carmen L. Massey: Yes.

Chief Justice Warren E. Burger: So that no benefits could be paid if the man were employed at the substantial income, no matter how long he was absent?

Ms Carmen L. Massey: And if that money were actually coming into that child, that is correct, Your Honor.

The Department of Health, Education, and Welfare interpretation of the term continued absence follows this common sense approach as to what the term means.

The Department of Health, Education, and Welfare in its Section 3422.2 of Handbook of Public Assistance Administration, Part IV has defined continued absence from the home as, (1) when the parent is out of the home, there is a clear situation here; (2) when the nature of the absence is such as to either interrupt or terminate the parent's functioning as a provider of maintenance, physical care, or guidance for the child.

And I would point out here that the Department of Health, Education, and Welfare is concerned not only with the fact that the father is not able to adequately support his family financially, but with the fact that the father is not present in the home to provide the kind of physical care and emotional nurturance that the child needs.

HEW has one further consideration, when the known or indefinite duration of the absence precludes counting on the parent's performance of his function in planning for the present support or care of the child.

That is certainly also the situation we have here.

Remillard was in Vietnam for a year. During that time he was not available to help take care of the child to make plans concerning her future.

The longstanding interpretation of HEW is that military orphans are federally eligible for AFDC benefits.

Justice William J. Brennan: Are?

Ms Carmen L. Massey: Are, yes, Your Honor.

For at least 25 years, federal matching payments have been made to those states which do grant AFDC benefits to needy military orphans.

Justice William J. Brennan: But they have also made them to the state's matching that don't pay those benefits?

Ms Carmen L. Massey: That's correct, Your Honor, I think.

There are two different issues here.

The first one is, are the children federally eligible and the second is, if the children are federally eligible then may the states deny them these benefits.

Justice William J. Brennan: And about half of the states deny them?

Ms Carmen L. Massey: That is correct, Your Honor.

There are some 20 off states plus the District of Columbia which do grant benefits to all needy military orphans.

Justice William J. Brennan: So if we affirm here those states that are now -- not doing it, will have to, won't they?

Ms Carmen L. Massey: Yes, Your Honor.

The states also make some further distinctions.

For example, at the time when filed this case, there were two states and there is now one state that gives AFDC benefits to the needy children of draftees, but not to the needy children of enlistees.

There are two further states which grant AFDC benefits to the needy children of draftees or men who have enlisted in order to avoid the draft, but not to the needy children of men who have enlisted.

Justice William J. Brennan: You mean the needy children of really patriotic soldiers don't get it?

Ms Carmen L. Massey: [Attempt to Laughter] That's right.

Justice Potter Stewart: During World War II, when there were literally millions of men, many of whom were fathers in the armed services, was the division among the states about the same as it is now?

Ms Carmen L. Massey: I do not know the answer to that question, Your Honor.

Justice Potter Stewart: This was back to about 1935 --

Ms Carmen L. Massey: That is correct.

I don't know what the division of states was at that time.

The AFDC Program focuses on the child.

This was stated by this Court in the case of King v. Smith and it's been reiterated several times.

What is important is the status of a child, not the legal status of the parents.

Now, a regulation such as California has, can lead to certain very absurd results and as an example of this, I would point out the situation of the intervener in this case, Joyce Dones.

Part of the intervention of this action Joyce Dones and her husband and their two children were living together.

She was also expecting a third child.

Mr. Dones was working full-time and supporting his family.

Mr. Dones was then ordered to submit to induction to the army and he was then sent to his basic training.

By army regulation, his family was not allowed to join him at the site of the basic training.

Now, if Mr. Dones instead of submitting to induction, if he had refused induction and then subsequently been arrested, convicted and sentenced for this unlawful act, there is no question but that in California his children would have been eligible for AFDC benefits.

Now as far as the child is concerned, there probably wouldn't have been much difference.

In each case, the father would have been gone for certain length of time.

If he was in jail, she would more likely be able to visit the father and if he was in jail, he probably didn't have as many chances of being killed, but yet in one case, the child is eligible for AFDC benefits and in the other case, the child is not eligible.

Justice Byron R. White: Well, there is (Inaudible).

Ms Carmen L. Massey: That is correct, Your Honor, except for the fact that in this case, need is not in question.

By the standards developed by the California Department of Social Welfare our class is composed only of needy children, children who aren't getting anything and I would further point out that in the case of Nancy Remillard, when we first filed this action, she wasn't getting anything either.

She wasn't getting any allotment.

Justice Byron R. White: What if he was living at home and he was in the military and he was not making enough to satisfy the standard needs?

Ms Carmen L. Massey: We do not contend that the family would have been eligible for AFDC benefits --

Justice Byron R. White: But would be just as irrational, wouldn't it?

Ms Carmen L. Massey: [Attempt to Laughter] We are dwelling here on the statutory argument --

Justice Byron R. White: Well, I understand that, but you are also arguing about the situations that you claim were in comparison are irrational.

Well I --

Ms Carmen L. Massey: Okay, if the father were living at home, there are, of course, certain economies of living about maintaining only one household and also the father would be available to help with the physical care of the children, he would be available to provide guidance and possibly in some situations, he would be able to take a second job.

Justice William H. Rehnquist: Well, if he is in prison there is one less mouth to feed too though, isn't it?

Ms Carmen L. Massey: Yes.

I would like to point out that in California, if a husband is sent to jail and if he is released on the Work Furlough Program, which is a procedure whereby the husband goes to work and then returns to jail for the night or for the day, if he happens to be working in the night shift, even in the case like this, where the husband is employed, the family will be granted AFDC benefits based upon his absence if the family is, in fact, needy and I think this is very close to that situation.

Justice Byron R. White: Has there been any congressional, any proposals in the Congress to have a statutory definition of continued absence that would bear on this situation?

Ms Carmen L. Massey: No, Your Honor, I would only point out that Congress is currently considering enhancement, considering for some time, the Family Assistance Program and one of the provisions in that program is that the families who are assisted must be intact families living together.

And --

Justice Byron R. White: But in the past, there haven't been some proposals to provide a national standard for aid to military people that have either been adopted, well if they haven't been adopted obviously but there have been rejected, there haven't been any proposals like that --

Ms Carmen L. Massey: I don't know of any proposals that deal specifically with the military problem.

I would note that Congress has simply acquiesced in the HEW definition which does include military orphans.

Justice Byron R. White: And which -- under which definition, the states can do it either one way or the other?

Ms Carmen L. Massey: Well, we maintain there are two parts to that definition.

The first part is that they are eligible and the second part is what we maintain has been --

Justice Byron R. White: Well, HEW certainly doesn't think it's definition requires the states to give aid, at least that's what they've reached to --

Ms Carmen L. Massey: That's correct, Your Honor.

At this point we are only dealing with whether or not they are federally eligible and the second part of the argument is concerned with whether or not this case is outside the scope of Townsend v. Swank.

Justice William J. Brennan: I know this HEW has suggested this whole problem might perhaps more appropriately be handled as a responsibility to military pay and allotment system?

Ms Carmen L. Massey: Your Honor, we would agree that the military pay and allotment system could be much more equitable.

Justice William J. Brennan: Well, I take it there must be some situations where even if 100% of the soldier's salary were remitted home under the allotment system, it still wouldn't be enough to meet the family standard either?

Ms Carmen L. Massey: Oh!

Yes, Your Honor, that is absolutely correct and there is also the problem that even if the soldiers pay were raised to $10,000 a year, there are always going to occur situations like Nancy Remillard found herself in, she wasn't getting any money.

Somehow the allotment system had broken down and she didn't have any money, not even this very low sum that the military does send.

Chief Justice Warren E. Burger: Well, would it be so difficult, I'll put the question to you, I'll put to the counsel for the state, to administratively determine what was the difference between the fair allotment, the maximum allotment that could be made and the allowance that the state would pay?

Ms Carmen L. Massey: Your Honor, our contention is that this would be very simple to administer and I would compare it to the situation where you have parents who are separated by agreement.

In that kind of a situation, you frequently find a father who is absent, and who returns to the home to visit the children, to see his wife for whatever reason and there is a real administrative problem for the department to determine whether he is in or whether he is out, let alone how much money he is giving her when his payments vary.

But in the military situation, it's very easy to check that he is out and it is easy to check when he is going to be coming back and it's also very easy to check what the allotment is going to be because the regulations are so standardized that once the welfare worker knows what his level in the service is, she can determine how much money the family is going to receive.

Justice Byron R. White: But if he is stationed near home and living off the base, the welfare was not (Inaudible)

Ms Carmen L. Massey: Each case would have to be determined on its merits, but that's all that we are arguing here today is that each case must be determined on its merits.

I would say that if he was living off the base, the family was there, then no, he would not be eligible for benefits.

Justice Byron R. White: Well, if switched into Seattle (Inaudible) even though he was sending them all the allotments?

Ms Carmen L. Massey: Your Honor, that's the point where you have to determine each case individually because there might certain situations where the family could not live with him in Seattle; there might be other situations where the family could.

I believe the District Court pointed out this kind of problem.

Justice William J. Brennan: Mr. Linderman suggested that District Court was wrong in saying that there are other classifications of absence from the home that California handles on an individual basis.And t

here -- this is the group basis but I think he said the children of prisoners are handled as a group not on individual case basis?

Ms Carmen L. Massey: Well, I would disagree with that.

I mean, even in those categories, the families have to be treated on an individual basis.

It may be that one person goes to jail for a day and that doesn't qualify his family for AFDC assistance.

It may be that another father goes to jail for a year and his family would be qualified.

In each case, you have to determine whether or not the parent is actually continually absent from the home.

That's all we are asking you in this case that our clients be given the chance to show that there is an actual non-physical presence of father.

Justice Potter Stewart: Well, I understand Mr. Massey to say that California treats fathers who are absent from home either because they are employed away from the home or are seeking employment away from the home, just as does military personnel, that it excludes them as a group.

Did I misunderstand that?

Ms Carmen L. Massey: No, I believe that is correct.

I was answering the question as to whether all groups are considered as a group or whether within certain groups, the individuals are allowed to present the case individually.

Justice Potter Stewart: But at least that group of fathers employed in a civilian capacity of one kind another away from the home, or who are seeking employment, civilian employment, non-military employment away from the home are excluded as a group from parents absent, continually absent from home, is that correct?

Ms Carmen L. Massey: That is correct, Your Honor.

Justice Potter Stewart: Just as military --

Ms Carmen L. Massey: As military man.

The second part of California's argument is an attempt to distinguish this case from the Townsend case.

Now in the Townsend case, this Court further annunciated the principle of King versus Smith which was that at least in the absence of congressional authorization for the exclusion, clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act.

Now I don't think we have anything in the record to show that Congress meant to exclude needy military orphans from the coverage of the AFDC Act.

Justice Byron R. White: The conclusion from that is that the continued absence must have one definition countrywide?

Ms Carmen L. Massey: Yes, Your Honor.

And if there is ambiguity in this definition then it must be supplied by the Department of Health, Education, and Welfare subject to reinterpretation by the court.

Justice Byron R. White: Well that means -- that would mean that any state plan that for which Congress provided matching funds would mean that those children for which the matching funds are eligible and every other state would have to confirm to the state that had the highest level of eligibility in its plan?

Ms Carmen L. Massey: That is correct, Your Honor.

I would compare this case to the King case.

In the King case, this Court was concerned with what does the word parent mean.

Now, the word parent is certainly as ambiguous as the term continued absence from the home.

Yet in that case, this Court looked at the legislative history and at the Act to determine what parent meant and once it determined what parent meant, it held that the states were bound to provide AFDC benefits to all children who fell under the definition.

Justice Byron R. White: (Inaudible) this case, doesn't it?

Ms Carmen L. Massey: Your Honor, I believe --

Justice Byron R. White: It does because here you have to look and find legislative history or something in the Act to the show that Congress meant to include military --

Ms Carmen L. Massey: Yes, Your Honor that was the first part of the argument and we used to support that claim, the interpretation of HEW in the plain English language of the words.

Justice Byron R. White: Yeah, but if you are wrong then that only had to be (Inaudible)

Ms Carmen L. Massey: Your Honor, if we are wrong and Congress meant --

Justice Byron R. White: HEW certainly doesn't think that any of these words in the regulation to support your view?

Ms Carmen L. Massey: Your Honor, it does as far as the initial issue which is whether or not these children are federally eligible.

That is if California chose to provide benefits to these children are federal matching funds available and the position of HEW is quite clear, federal matching funds are available.

Justice William J. Brennan: Because they're provided to some 20-25 states now?

Ms Carmen L. Massey: That is correct, plus the plain language of the regulation that you read from.

Justice William O. Douglas: You raise any constitutional questions?

Ms Carmen L. Massey: Yes, Your Honor.

We believe that the court below quite properly decided this case on statutory grounds.

However, we did argue below and we argue here that if that the California regulation does deny Nancy Remillard and the members of her class the Equal Protection and Due Process of the laws as guaranteed by the Fourteenth Amendment.

We would point that California provides AFDC benefits to children in which a parent is absent from the home because of divorce, desertion, separation, incarceration, deportation, hospitalization.

It does not provide benefits for the child who's parent is separated from the home because of military absence.

Justice Potter Stewart: Nor from a child whose parent is away for civilian employment?

Ms Carmen L. Massey: Or for a child who's parent is away for civilian employment.

Yet, in a program with the focuses on the child, the situation of the child is the same in any of these cases.

The California exclusion, it cannot be viewed as simply a case where the state will not provide benefits if the absence is voluntary because the state provides benefits in the cases of voluntary divorce and voluntary separation.

It cannot be looked at as a case in which the absence is going to be for a known time rather than an unknown time because the state does provide AFDC benefits when a parent is absent from the home, for almost 30 days because of incarceration.

That it further cannot be looked as a general exclusion from AFDC program of children who have some money coming into them.

In the case of divorce or desertion, there maybe regular child support for payments coming in. But if the difference between the child's -- that the state will pay the difference between the child support payment and the standard of need as determined by the state.

That's all that we're asking that the state do in this case, that it pay the difference between what the child is getting and what the state says that child needs to live on.

Justice Byron R. White: Now if Congress has said specifically in the act, continued absence but the states have a discretion of whether or not to include military people, would you be here?

Ms Carmen L. Massey: Yes, Your Honor.

Justice Byron R. White: On the constitutional argument?

Ms Carmen L. Massey: Yes.

Justice Byron R. White: Not on the statutory argument?

Ms Carmen L. Massey: That's correct.

Justice Byron R. White: But even though on the statutory argument if half of the states covered military people and half of the states didn't, military people are eligible?

Ms Carmen L. Massey: Yes.

Justice Byron R. White: Which is the way it is now?

Ms Carmen L. Massey: Yes.

Your Honor, I would point out that Congress in enacting the AFDC-U program under Section 407 of the Act, it specifically provided that the states would define the term unemployment.

It did not do that in the case of continued absence.

Justice Byron R. White: Well, I think that the HEW's position is by using this general term against the history, 35-year history that it's just as though that Congress had said expressly that the states may have discretion and thus even though military children are eligible, it doesn't mean there is a violation of the Act in those states where they clearly they don't --

Ms Carmen L. Massey: Yes, Your Honor.

Justice Byron R. White: That's your basic position?

Ms Carmen L. Massey: That's the position of HEW and of the state.

We feel that ignores the plain holding and the plain language of the Townsend case in which this Court expressly repudiated the position of the Department of Health, Education, and Welfare that it could delegate to the states the decision whether or not to participate in certain programs.

As far as the constitutional argument is concerned, we further maintain that the state by its conclusive presumption that a parent is not absent from the home when everybody admits that father is absent from the home, has denied to the appellees, the Due Process of the law.

I would emphasize at this point that we are not stating that in every single case, where there is a needy child and where there is military service that that family is eligible for AFDC benefits.

We are only stating that or we are only asking that this Court to hold that the State of California cannot via conclusive presumption, prevent the members of this class from proving what everybody knows is true.

Chief Justice Warren E. Burger: Thank you.

You have about three minutes left, counsel.

Rebuttal of Jay S. Linderman

Mr. Jay S. Linderman: May I just refer briefly to the Townsend decision to respond to what Ms. Massey says that the decision holds and I don't mean to be presumptuous in telling the Court what it held in that case.

But I believe that it's difficult to read the decision as having any applicability here in that in Townsend, Congress had very clearly defined what a student was in terms of who as a student was going to be eligible.

The Court then said that Congress having squarely made the person eligible, the state can't say that the person is ineligible and it's only in that context I believe that the Court struck down HEW's condition acts.

And condition acts is merely the deference -- the deferential policy of HEW, in this case and in any other case of allowing states to define eligibility for that state's program.

Now, I don't believe that the Court in Townsend struck down condition acts in all instances.

Now, that's my point that in this case, the Court may want in Remillard case, the Court may choose to say that there must be national standards and in this case, may disapprove in toto condition acts, but it did not do so we would submit in the Townsend case.

For -- one final point, that the Administration Welfare Bill H.R.1 which is now pending and has been for some time, one of the most highly touted aspects of that Bill is that it establishes nationally uniform standards, one of the things lacking in AFDC.

So I would submit that clearly AFDC does not, that the Social Security Act does not require national standards, particularly in this case where Congress has used the vague term, continued absence and defer to HEW for 35 years in allowing the states to set their own definitions.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Linderman.

Miss Massey you acted at the request of the Court and by appointment of the Court in this case and we wish to thank you for your assistance, of course, to the clients you are representing and your assistance to the Court.

Rebuttal of Carmen L. Massey

Ms Carmen L. Massey: Thank you.