CARTER v. STANTON
Legal provision: Federal Rules of Civil Procedure, including Appellate Procedure (or relevant rules of a circuit court)
Argument of Jon D. Noland
Chief Justice Warren E. Burger: Will hear arguments in number 5082, Carter against Stanton.
Mr. Noland you may proceed.
Mr. Jon D. Noland: Mr. Chief Justice and may it please the Court.
This case is here on direct appeal from a judgment of three-judges District Court for the Southern District of Indiana which dismissed appellants complaint for failure of federal jurisdiction.
The issues involved are jurisdiction of questions pertaining both to the jurisdiction of this Court to hear the appeal under Section 1253 of the judicial code and to the jurisdiction of the three-judge District Court.
The plaintiffs in this action were mothers of dependent children to at the time of filing their complaint in the District Court had been denied either the right to file an application for aid to families with dependent children or had been denied assistance under that program.
Jurisdiction below was founded on Section 1343(3) and (4) of the United States code and the action was brought under Section 1 of the Civil Rights Act of 1871.
Plaintiffs brought the action on their own behalf and as a class action on behalf of other mothers similarly situated.
The Social Security Act defines a dependant child as a needy child who has been deprived of parental care or support by reason of the continued absence from the home of a parent.
Plaintiffs alleged that they were entitled to assistance under this provision because their husbands and the fathers to their children had deserted the home.
Plaintiffs also alleged in their complaint that aid under this provision was denied pursuant to Indiana regulation 2402(b) which is set forth at the bottom of page 5 of appellants brief.
This regulations state when the continued absence is due to desertion or separation.
The absence shall have been continuous for a period of at least six months prior to the date of application for assistance except that under exceptional circumstances of need and where it is determined that the absence of apparent is actual and bonafiding, an application maybe filed and a child maybe considered immediately eligible upon a special finding of the County Department of Welfare.
A three-judge court was convened to hear the plaintiffs allegation that this regulation was not only unconstitutional, but was also contrary to provisions of the Social Security Act.
Chief Justice Warren E. Burger: Is this a class action?
Mr. Jon D. Noland: Yes it was brought as a class action Your Honor.
Justice Potter Stewart: The class being parents whose spouses had not been absent for six months or more?
Mr. Jon D. Noland: That is right.
Mothers who had been denied welfare benefits under this regulation because the husband had not been away from the home for a period of six months.
Following the convening of the three-judge court, each of the two appellees, the County Department of Public Welfare and the State Department of Public Welfare filed motions to dismiss the complaint.
These motions were based primarily on two grounds.
One, a failure on the part of the plaintiffs to exhaust their state administrative remedies, and secondly the failure of the complaint to raise substantial constitutional questions.
The three-judge panel then convened a combine hearing both on the motions to dismiss and on the merits of the case.
Evidence was heard from approximately 16 witnesses and at that point the court adjourned the hearing and granted the motions to dismiss.
The court's entry appears at page 210 of the appendix and on page 212 of the entry.
The entry demonstrates that the decision of the court was based one upon the court's finding that each of the plaintiffs had failed to exhaust their state administrative remedies, and secondly, the court held we have examined the pleadings before us and find no substantial federal question involved nor do we find federal jurisdiction under 28 US(c) Section 1343(3) and (4).
It is apparent to the appellants from this entry that the District Court resolved none of the conflicts in testimony which became evident during the course of the hearing.
Rather, it made it so finding that the plaintiffs had failed to exhaust state administrative remedies and then on the basis of the pleadings and solely on the basis of the pleadings, it found that no substantial federal questions were presented for decision.
Before turning to the correctness of the decision of the District Court, the appellee, the State Department of Public Welfare has raised a threshold question in this case pertaining to this Court's jurisdiction under Section 1253 of the judicial code.
As we understand the argument, the appellants and the appellee’s contention is that in failing to find substantial federal question, the three-judge panel in effect dissolved itself and that therefore the final entry should be construed as having been the decision of a single district judge.
In support of that decision the appellee relies primarily upon two per curium decisions of this Court.
Mengelkoch versus Wilson, Mengelkoch versus The Industrial Welfare Commission and Wilson versus City of Port Lavaca.
Without repeating all of the argument set forth in appellants reply brief, we believe that this case is significantly different from those decisions and that here there was no express finding by the three-judge panel that it had been improperly convened.
The final decision in fact was entered by all three-judges.
In addition, it is apparent from the entry that in large part, the decision of the District Court was based upon the failure to exhaust state administrative remedies.
And as we read this Courts decision in Idlewild Liquor Corporation against Epstein that is a consideration which could be properly made only by three-judge court and not by a single district judge.
Furthermore the Court here convened the hearing on the merits as well upon the motion to dismiss and took extensive evidence from approximately 16 witnesses.
Again, we submit that this is a procedure which could be followed followed only by the three-judge court.
Chief Justice Warren E. Burger: Could that not also mean that having heard 16 witnesses conceivably, it concluded that there was no problem for three-judge court?
I am not suggesting it was, but could that not also be an explanation?
Mr. Jon D. Noland: It is certainly conceivable Mr. Chief Justice that the three-judge panel could have heard witnesses and decided on the basis of the testimony induce that the complaint failed to raise substantial constitutional questions and dissolve itself and then left the final judgment for single district judge.
By not doing so, we believe the District Court here recognized in fact that it was not making a determination.
Within the meaning of, for example Ex parte Poreski (ph) that the complaint failed to raise substantial constitutional questions, but made that decision on the basis of a finding of a failure to exhaust state administrative remedies.
We submit that what has happened here is the District Court has taken this Court's decision in King versus Smith and turned the formula around and said in this case substantial constitutional questions are not raised because there was a failure to exhaust state administrative remedies, and we submit that that is a determination which could made only by the three-judge court.
In support of appellants position on this point, we believe the recent decision of this Court on October 12 of this year in a case of Hicks versus Pleasure House, Inc. is instructive or in that decision, the Court characterized the Wilson decision and the Mengelkoch decision as holding that an appeal may lie to a Court of Appeals from certain action of a single district judge in a case required to be heard by three-judges.
And again here we have no action of a single district judge, but a final appealable judgment entered by the three-judge court.
Unknown Speaker: What if the three-judges court convene is convened on the examine of pleadings and then dismiss and say that the constitution may choose this case for privilege?
Mr. Jon D. Noland: We believe that this Court has jurisdiction over that direct opinion.
Unknown Speaker: (Voice Overlap) -- that is appealable here.
Mr. Jon D. Noland: That as we understand the decisions of this Court following Wilson versus Mengelkoch, there are series of four decisions cited in appellants reply brief in which that procedure was followed, and in which this Court took jurisdiction on direct appeal.
Justice Thurgood Marshall: There are also cases where the three-judges found there was a substantial federal question dissolved it and then one Judge rendered the opinion all on the same day?
Mr. Jon D. Noland: That is the Mengelkoch case Mr. Justice Marshall.
Justice Thurgood Marshall: Well, I think of another one, but I mean that was not definitely the single judge action.
Mr. Jon D. Noland: The three-judge court --
Justice Thurgood Marshall: Dissolved itself?
Mr. Jon D. Noland: Dissolved itself and final judgment was rendered by a single district judge.
Justice Thurgood Marshall: All done in the same proceedings.
Mr. Jon D. Noland: That is correct.
Turning now to the precise nature of attacks on the regulation below.
Appellants have attacked the regulation at the bottom of page 5 of their brief, both on constitutional and statutory grounds.
Two attacks were made on the basis of the regulation is unconstitutional on its face.
The first attack relates to the requirement that where the separation has been for a period of less than six months.
Exceptional circumstances of need must be shown in order to secure a waiver.
We see no rational basis for saying that if the separation has been for less than six months, a child must be exceptionally needy.
While if the separation has been for more than six months mere need is sufficient.
Therefore, we argue below that this particular provision of the regulation constituted a denial of equal protection under the Fourteenth Amendment.
We do not believe that this question is rendered in substantial or frivolous by the Court's decision in Dandridge against Williams.
We have an entirely different factual situation, a different type regulation in this case.
A regulation under which the appellant and other applicants have been denied all aid.
We do not have here a maximum grant type regulation where the families are already receiving some type of assistance and a maximum level is established.
Secondly, the appellants have attacked the regulation on its face as granting a standard list and arbitrary discretion to the administrator.
As pointed out, in order to secure a waiver of the six months requirement, a special finding must be made by the County Department of Public Welfare.
Two of the plaintiffs in this case alleged in the complaint that no investigation had been made into their circumstances upon which such a special finding could be based.
On this basis, we believe the administrator has discretion as to whether to conduct an investigation in any particular case.
The discretion which is not guided by any standards.
Furthermore, whether it is a failure to conduct an investigation, the regulation in effect enacts and concludes the presumption that an absence for less than six months cannot be a continuous absence.
In these particular cases therefore, we have a rigid six month waiting period and the same type of regulation or statute which was involved in the Damico case and in the Minnesota case of Bill versus Hersh (ph).
Unknown Speaker: What were the periods in those cases?
Mr. Jon D. Noland: Both of those periods were three month periods Your Honor.
Unknown Speaker: I thought they were shorter than six months.
Mr. Jon D. Noland: Both statute where struck down as being contrary to Social Security Act although the court, each Court conceded that the constitutional claims raise were substantial.
Unknown Speaker: You are not claiming that any time period would necessarily be violative of the statute, of the constitution, would you?
Mr. Jon D. Noland: We believe that any time period --
Unknown Speaker: I mean that conceivably, a man could leave in the morning at 7:30 and 24 hours later his wife can go and apply for assistance saying, my husband left this morning and well, I know he is not going to come back.
Mr. Jon D. Noland: That is correct Your Honor, obviously situations will vary, in some cases the administrator maybe able to reach a determination that if absences continued two or three days after the husband departs.
In other cases, it may take longer to arrive at that determination.
We do believe --
Chief Justice Warren E. Burger: Are you suggesting that 30 days would be unconstitutional?
Mr. Jon D. Noland: I am suggesting and no Your Honor that it would not be unconstitutional but anything above that would be a violation of the Social Security Act.
Unknown Speaker: At least so far is it where almost conclusive presumption?
Mr. Jon D. Noland: That is correct.
Unknown Speaker: So that is what you mean.
Mr. Jon D. Noland: That is correct.
I think our primary problem with this regulation is relating the exceptional circumstances of need requirement to a durational requirement.
We could see no rational basis for saying that even though it maybe difficult to arrive at a determination of continued absence that a waiver will be granted only if exceptional circumstances of need are present.
We believe that violates Social Security Act which speaks of needy children and not exceptionally needy children.
In addition, the appellants have alleged in their complaint that there is a statewide policy in practice under this regulation of requiring applicants to file for legal separation or divorce in order to secure a waiver of the six month period.
The testimony before the three-judge panel on this question was directly conflicting.
There was evidence on behalf of plaintiffs that such a practice had been engaged in, at least in their cases and in other cases.
The administrators on the other hand denied the existence of any such practice.
As we think as apparent from the Court's entry, the Court they know fact finding as to whether this practice did or did not exist.
Apparently, assume the existence of the practice and yet nevertheless found that the constitutional issue is raised for insubstantial.
Appellants urge that such practice that exist as alleged constitutes denial of First Amendment and the Equal Protection Clause of Fourteenth Amendment.
Turning now to the question of exhaustion of administrative remedies, we think this is the primary basis for the decision of the District Court.
As appellants have read, the prior decisions of this Court there is an absolute exemption from any exhaustion requirement or actions brought under the Civil Rights Act.
This is been established both by the Damico versus California and King versus Smith.
We submit that there is important policy justification for such an exemption.
Cases such as this under the Civil Rights Act and particularly welfare cases involve essentially or primarily questions of Federal Law whether the constitutional law or statutory law.
We see no need therefore for the State Administrator to consider State Law to make any fact finding based on the record before an administrative agency or to apply their expertise or discretion.
The regulation here is being attacked both on its face and does apply.
We believe these issues can properly be determined by a Federal Court without exhaustion.
In addition, if exhaustion is to be required in certain cases we submit that this is not such a case because the administrative remedy is inadequate.
There is no identical administrative remedy in Indiana.
That remedy is solely individual in nature, there is no class action procedure before the administrative agency.
In addition that an administrative appeal does not result in any decision of general applicability throughout the state.
Now the appellee's state department in this has devoted a large portion of its brief to arguing that full discovery rights are available in administrative proceedings in Indiana.
The appellants do not dispute that proposition as a matter of statute but law.
However, the very record in this case demonstrates that any pursuit of discovery before the administrative agency would be entirely feudal.
The plaintiffs below filed both subpoenas and motions to produce to obtain copies of case files and other documents pertaining to the application of the challenge regulation.
Both the State Department and the County Department resisted any motion to produce on the basis that the records requested were confidential in nature.
And in a letter to the Court and to Council dated November 5, 1970 State Welfare Department stated, I specifically request that you obtain a court order to require Mr. Sterick (ph) to produce these files at the time of his proposed examination.
The County Welfare Department said essentially the same thing in an affidavit filed in support of their objection.
Now it is essential in case such as this that the plaintiffs have access to the documents in order to establish their constitutional allegations that this regulation has been applied in such a manner as to be contrary to the Equal Protection Clause.
Yet the appellees have told us in this very case that they will require a court order in order to produce the documents requested.
Appellants know of no procedure in Indiana whereby a Court order can be obtained without filing a law suit.
Therefore we submit, we are back right where we started from.
The appellants would receive none of the documents in an administrative proceeding and would be required to file the very law suit which now before Your Honors.
And additional basis for the decision of the District Court appears to have been a reliance upon Mr. Justice Stone's distinction made in Hague versus CIO that no jurisdiction lies under the Civil Rights Act where the complaint raises only questions relating to property rights and not to personal rights incapable of valuation.
We believe that the prior decisions of this Court have satisfied this question that jurisdiction does lie under the Section 1343(3) whether it is denial of welfare benefits, since it had been recognized that such a denial does involve important aspects of personal liberty.
Therefore we urge that the District Court urge in dismissing the complaint on this ground.
Unknown Speaker: I can understand your argument about three-judge court jurisdiction, but how about federal jurisdiction at all?
How about jurisdiction at Federal Court, are you under 1983 is that what you are --
Mr. Jon D. Noland: Yes, the action was brought under Section 1983.
Unknown Speaker: 1343(4)?
Mr. Jon D. Noland: 1343(3) and (4) both were invoked to support the jurisdiction.
Unknown Speaker: And in terms of the federal jurisdiction at all, the other side simply claims 1983 does not reach this kinds of suit?
Mr. Jon D. Noland: That claim was made in briefs filed before the District Court Your Honor.
Primarily upon the basis of case of Nicole versus Shapiro.
Unknown Speaker: Well, the lower courts have rule that it did not have jurisdiction under 1343 or (4) and I wonder what the basis for that three-judge courts ruling was?
Mr. Jon D. Noland: We find that the entry to be rather obtained on head ground, Your Honor.
Justice William J. Brennan: Would have been the head ground?
Mr. Jon D. Noland: As far as we are able to determine that is the only ground that could have been Mr. Chief Justice Brennan the Hague issue was brief.
Justice William J. Brennan: Then the Fourth Circuit cases have followed.
Mr. Jon D. Noland: Nicole versus Shapiro was the primary case relied upon by the defendants below.
At that the time the Second --
Justice William J. Brennan: That is the Second?
Mr. Jon D. Noland: That is a Second Circuit case which took --
Justice William J. Brennan: (Inaudible)
Mr. Jon D. Noland: I do not believe so.
The Second Circuit in that case took a very restrictive position in applying the Hague versus CIO distinction.
Since then for example in the Eisen case, Mr. Justice Finley [ph] has recognized that welfare actions do involve important aspects of personal liberty.
Justice William J. Brennan: Does that make sense?
Mr. Jon D. Noland: No Sir.
Unknown Speaker: (Inaudible) in the sentence.
Mr. Jon D. Noland: I do not believe so.
Unknown Speaker: What is that citation?
Mr. Jon D. Noland: That is the Eisen case, Eisen versus Eastman in 421 Federal Second.
Certiorari was denied in 400 US.
Unknown Speaker: Okay.
Mr. Jon D. Noland: In addition, the another three-judge panel in the Second Circuit in Johnson versus Harder in 438 F.2d did recognize that jurisdiction does exist under Section 1343 and Welfare Action.
Justice William J. Brennan: Which one with that?
Mr. Jon D. Noland: That was Johnson versus Harder Mr. Justice Brennan 438 Fed Second.
Justice William J. Brennan: You have them both cited?
Mr. Jon D. Noland: Yes sir.
We see no other basis for the District Court’s decision on the 1343 point other than the Hague versus CIO distinction.
On these grounds therefore, we believe that this Court properly has jurisdiction over this appeal under Section 1253.
That the complaint did raise substantial constitutional questions which were neither frivolous nor faithfully absurd on the basis of this Court’s prior decisions.
That the plaintiffs were not required to exhaust their state administrative remedies and as the District Court adds jurisdiction under Section 1343.
For these reasons we urge that the decision of the lower court be reversed and that the case be remanded for full trial on the merits.
I would like to reserve any remaining time for rebuttal Mr. Chief Justice.
Chief Justice Warren E. Burger: Mr. Peden.
Argument of Mark Peden
Mr. Mark Peden: Mr. Chief Justice and may it please the Court.
We believe that this appeal belongs in the Seventh Circuit.
What happened in this case was the single judge convened the three-judge panel that heard the case and dismissed it entirely.
There was nothing in remain to be done by a single judge in this case.
We rely on two cases discussed by Mr. Noland, Wilson versus City of Port Lavaca and Mengelkoch versus Industrial Commission, those two cases, three-judge panel dissolved the case and sent it back to single dissolve their own panel and sent it back to the single district Judge for resolution.
In those cases, the single Judge dismissed the case and this Court held that the appeal properly went to the Seventh Circuit, to the Circuit Court of appeals.
Chief Justice Warren E. Burger: Are you arguing that this then was in fact the action was legally, the action of a single judge even though three reported take part in it?
Mr. Mark Peden: Yes sir.
It is our opinion that the --
Chief Justice Warren E. Burger: How would you identify which one of those three-judges then was a single Judge.
I am not sure that is crucial.
Mr. Mark Peden: We would not be able to.
The fact that we are going on here is that to remand this back to a single district judge, it would be pedantic and useless act pointless formality where there is nothing left to be done by a single judge.
Three-judge court has dismissed the case in its entirety.
Unknown Speaker: Well, that is a good judgment, was it not by the three-judge court on the merits of the case?
Mr. Mark Peden: It was a judgment that they had no jurisdiction.
Unknown Speaker: Yes.
Mr. Mark Peden: And where a three-judge court dismisses for warrant jurisdiction it appeals.
Unknown Speaker: Or they may have been correct and they may have been incorrect, but many of that it was a Judgment on the merits of the complaint, was it not by three-judge court?
Mr. Mark Peden: Yes, as was the judgment in the Wilson and Mengelkoch and more recently in --
Unknown Speaker: Well, in that case there was a remand of the single judge court, that is the difference.
Mr. Mark Peden: That is factual.
Unknown Speaker: It is just a technical difference.
Mr. Mark Peden: I think it is a difference without any consequence and to make the jurisdiction of this court under Section 1253 depend on a simple formality.
Unknown Speaker: Well, Congress may have done exactly that.
It is not vast unlike the jurisdiction.
Congress did it and it gave us jurisdiction of direct appeal from an action of a three-judge court.
Mr. Mark Peden: Yes, it did.
Unknown Speaker: Certain action for three-judge court.
Mr. Mark Peden: That arose because in 1875 after Federal Courts were given jurisdiction over this type of the case were given a power to enjoin state statutes. Federal judges quite freely exercised this injunctive power and public resentment reached quite a peak an especially after decision of this Court in Ex parte Young in 1908 where the power of the Federal judge is to enjoin state regulatory scheme was upheld.
The injunctions where often granted simply on the basis of affidavits in Ex parte proceedings.
The public resentment were such that Congress in 1910 passed the Three-Judge Act.
So it now requires three-judges or state statute can be struck down and they further protected the state interest by providing that any appeal should go direct to the Supreme Court.
So the whole impetus for the Three-Judge Act was to protect state interest from interference by the injunctive power of Federal Courts.
It was not to protect parte such as plaintiff in this case.
Unknown Speaker: Now, I hear a direct appeal to this Court from the Judgment of a three-judge court either granting or denying in the judgment?
Mr. Mark Peden: Yes, in order granting or denying it is mutual in that sense but we submit that the thrust of the act did not encompass situations in this type.
Justice Thurgood Marshall: Suppose the argument says the motion of the defendant to dismiss its complaint is hereby granted.
Would that be alright?
It is signed by the three-judges?
Mr. Mark Peden: I think Your Honor that that would be posted what happened here.
Justice Thurgood Marshall: Well, would that be alright?
One thing I left out is to say, the Federal Jurisdiction that is all I left out.
But you apply for an injunction and the grant dismiss your complaint that thereby denying injunction?
Mr. Mark Peden: Well --
Justice Thurgood Marshall: And you say that that is not ground for appeal to this Court.
Mr. Mark Peden: Your Honor in the recent case, Goldstein versus Cox.
This Court held that were a motion for summary judgment was denied.
The plaintiff's most of the summary judgment was denied.
Even though they had asked for an injunction, the appeal still lay to the Court of Appeals that was Goldstein versus Cox.
Justice Thurgood Marshall: This one, when they had hearing, and how many witnesses, 16 witnesses.
That is not summary judgment.
Mr. Mark Peden: Well, the hearing was held for the purpose of determining jurisdiction.
Justice Thurgood Marshall: (Inaudible).
Mr. Mark Peden: As they say determine to deny jurisdiction.
Justice Thurgood Marshall: They said the (Inaudible) did not dismiss for failure of Federal Jurisdiction.
Why is then effective order of a three-judge court?
Mr. Mark Peden: Why is it the effective one?
Justice Thurgood Marshall: Why it that just as effective as granting an injunction?
And find the jurisdiction and granting an injunction?
Mr. Mark Peden: Well, Section 12 --
Justice Thurgood Marshall: Why is the difference between finding a jurisdiction and granting an injunction one hand?
Not finding jurisdiction and not granting an injunction or denying the injunction on the other hand?
Mr. Mark Peden: The practical difference is not that great but under Section 1253 that is a technical enactment is to be construed very narrowly and this Court has said that several times and if the plaintiff cannot show that the action of the Court below took in regard to his case was such as the constitute in order denying or granting injunctive relief and come within that language very literally, then he is out of ballpark as far as 1253 goes.
Even though, it maybe that he is asked for an injunction and he has not got it.
So the practical effect is that he is lacking in his injunction but he has to come within the literal strictures of 1253.
Justice Thurgood Marshall: Or you mean the Court has to say the motion but the defendant dismissed complaint for failure of federal jurisdiction is hereby granted and the application for an injunction is denied?
Would that be okay?
Mr. Mark Peden: If the thrust of the decision was a decision on the merits of the merits of the case.
Appeal would go to the Supreme Court under Section 1253.
Justice Thurgood Marshall: Injunction or the motion for an injunction is denied because of failure of federal jurisdiction.
Would that be all right?
Are you not just fiddling by words?
Mr. Mark Peden: Words are the essence of 1253 jurisdiction.
Chief Justice Warren E. Burger: Perhaps for spending too much time on it conceivable it seems at least that Judge Turner thought that it was important enough to have three signatures on the disposing order because he authorized one of the other two Judges to sign for him or at least to that stage it would look as though the judges were thinking that they were a three-judge court.
Not that one of them could dispose the case and maybe you better get along to the merits of your argument.
Mr. Mark Peden: We believe that the Indiana six month requirement is not violated of the equal protection because it is found it in rationality.
In the previous case, the court had difficulty distinguishing between the college student and a vocational student.
But there can be no doubt that under a six month requirement, the standard or the continued absence is going to be a lot more clear.
The longer the parent is absent from the house.
The six month requirement is founded in the common sense belief that when a father leaves a family, it would be very likely that the standard of need, soon after the father leaves is not as grace it will be later.
The regulation also contains a clause which states that in cases of exceptional circumstances aid maybe available.
This clause means that when -- since standard, the evidence below indicate that the standard of need that recall for a family for aid after six months was the same as used by the Welfare Department in a determination of who met exceptional circumstances before six months.
The basis of the ruling is that when a man leaves the house, there will be some money or the family would be able to at least subsist for a length of time, and that it is necessary in order to prevent fraud in order to ensure that the continued absence is real.
Now, it is our position that this does not violate equal protection because under the Dandridge case, the court noted that the test of such a regulation is whether or not it is reasonable, whether or not it is brief in various discrimination.
The AFDC program was described as a program of cooperative federalism.
The states have leeway and under the statutory argument, aside from the equal protection argument, it is our position that 406 as a definition is not mandatory in binding up on the states.
This is already brought out in the last case to quite an extent.
We feel that the requirements that are binding upon the state as suggested by the Solicitor General are in Section 402.
These requirements have been settled with effective dates whereby in order to meet these requirements, the states have to comply by a certain date.
Whereas Section 406, the definitional Section are no effective dates.
This in busy just then that the real requirements of the act.
The ones which would require the states to perhaps enact legislation that will enable them to meet the requirements that Section 402 is a Section which actually establishes binding requirements on the state and legislative history of this act fully supports this, all the remarks in the senate reports cited by the Solicitor General’s brief in this case, amply support the view that Section 406 establishes the outer boundaries of state participation for which federal funding will be available.
And that Section 402 is the only of section of the act which is mandatory upon the states.
Section 402(b) states that the secretary will approve any plan which complies with that section meaning 402 and the requirements in 402(a).
It does not say that the secretary will refuse to approve plans because a fail to commit the definitional requirements in Section 406.
So we submit that on the basis of standards case, there is no conflict with equal protection under the six month rule and then upon the basis of the legislative background and the internal consistency of the Social Security Act, there is no conflict with that act neither.
Thank you, the rest of time will be taken by my partner Mr. Geddes.
Argument of Robert W. Geddes
Mr. Robert W. Geddes: Mr. Justice Douglas, may it please the Court.
With the limited time, I would like to make it perfectly clear to the Court that the appellee Wayne Stanton, his position is that we should not be in the Federal Court.
Not whether that we should be in this Court so much or whether or not we should be in the Federal Court if the doctrine of abstention or the doctrine of exhaustion administrative remedies had any meaning under this type of case.
With respect to the merits of this case, it is fully covered in our briefs, it is fully covered with case law.
There were charges in there that the applicants or the claimants says we could not file an application unless we sued for divorce, unless we filed for legal separation.
The evidence is clear in fact two of the claimants alone received benefits less than three month after their husbands separated and they never filed for divorce.
There was a witness Smith, she testified that she filed her application immediately and within a month she received aid, she never filed for divorce.
There was a witness Blake LaClair (ph) she receive aid in two months after separation, never filed for divorce.
So as far as this six month requirement under the Indiana Regulation, all the six month is a guideline.
In other words, after six months is a conclusive presumption.
But if the need is there and the absence is action bonafide, the regulation says that the person can receive aid immediately.
That distinguishes this case from Damico and all of the others where was a three month situation sue start.
Unknown Speaker: Did the District Court hold what you have just told us?
Mr. Robert W. Geddes: The District Court held Your Honor Mr. Justice that there was no substantial federal question and the claimants did not exhaust their administrative remedies and therefore they said there was no federal jurisdiction.
Unknown Speaker: But they held that on the pleadings that there was no substantial federal jurisdiction?
Mr. Robert W. Geddes: Yes, Your Honor that is correct.
Unknown Speaker: And now certainly the pleading of the complaint alleged the existence of this six months rule, was it not?
Mr. Robert W. Geddes: The pleadings alleged the regulation which says six months and this is statutory.
Unknown Speaker: In the absense of (Inaudible)?
Mr. Robert W. Geddes: That is correct Your Honor.
What the court did at least in my opinion, they had the pleadings in front and they had the motions to dismiss and they heard 60 witnesses to determine whether the court should take jurisdiction to hear the case, fully hear the case on the merits.
There was about ten hours of testimony involved and after concluding that and after hearing the evidence then they made their conclusion notes of substantial federal question on the pleadings and the party failed to exhaust administrative remedies.
Unknown Speaker: They did not refer in order to the evidence acceptance so far as the federal exhaust administrative remedies.
They did not.
Mr. Robert W. Geddes: That is correct Mr. Justice.
Unknown Speaker: They did not in anyway decide that this alleged six months rule really did not exist?
I mean really was not arbitrary or conclusive presumption.
Mr. Robert W. Geddes: No, Your Honor they --
Unknown Speaker: Court did not find that.
Mr. Robert W. Geddes: Mr. Justice they did not.
This case is the only case I could find and the only case I know of where this Court is faced now with the decision to make with respect to administrative remedies.
Now the appellant have cited King, they have cited Damico, they have cited Damico and McNeese.
But each of those cases, if you look at the merits of those cases, the administrative remedies involved there was either not adequate.
It was not speedy or it would have been feudal.
For example, in McNeese I believe the parties would have to go back and get -- it was a segregation case, they would have to get %10 of the boarder so many people and then --
Unknown Speaker: I have heard that did but what supposed that in McNesse turned on those facts?
Mr. Robert W. Geddes: No, Your Honor they just said that there was under 1983, you did not have the exhaustment state remedy.
What has been causing confusion with the Federal Courts is whether this -- the confusion is that if you make a claim under 1983, does that give you absolute right to bypass all administrative remedies and that is really the question before this Court today.
Unknown Speaker: But I gathered what is worth, what McNeese said indicated that was the case that you need not if you have a 1983 exhaust state administrative remedy for the time.
Mr. Robert W. Geddes: That is correct Mr. Justice.
Unknown Speaker: So really I gathered what you are suggesting, is that we have to review McNeese?
Mr. Robert W. Geddes: No, McNeese did say this so.
They did say and they are not pretty good exact words, but they said, more or less that if the administrative remedy there is feudal or if it would not do any good, you do not have to exhaust administrative remedies.
Unknown Speaker: That meaning that the implication was of adequate administer to review than you did have to?
Mr. Robert W. Geddes: That is my opinion Your Honor, in our opinion.
Justice Thurgood Marshall: What specific administrative review would allow you to raise the question of the unconstitutionality of that statute as being in violation of the Equal Protection Clause of the Fourteenth Amendment?
Mr. Robert W. Geddes: Alright Your Honor, in answer to that question the administrative procedure setup in Indiana has a number of means under which you can appeal, administratively appeal.
Justice Thurgood Marshall: Can you raise that question and have it decided by a competent body?
Mr. Robert W. Geddes: Well, it says -- one of the mains it says if the applicant believes his civil or constitutional rights have been violated, he can appeal administratively and under Indiana --
Justice Thurgood Marshall: Where does he place running to a lawyer the to decide this question?
Mr. Robert W. Geddes: Alright, the Administrative Procedure Act in Indiana provides that he may have anybody represent him.
Justice Thurgood Marshall: No, I mean who decides it all.
Mr. Robert W. Geddes: Who decides it?
This is a Welfare Administrator, the first step.
Justice Thurgood Marshall: Is he a lawyer?
Mr. Robert W. Geddes: No, he is not.
Justice Thurgood Marshall: Well, how can he decide the constitutionality of the Indiana statute?
Mr. Robert W. Geddes: He can make a finding with --
Justice Thurgood Marshall: That is constitutional?
Mr. Robert W. Geddes: He can make finding whether --
Justice Thurgood Marshall: Did he make a finding that is unconstitutional?
Mr. Robert W. Geddes: Yes, he can.
Justice Thurgood Marshall: How under his oath?
Mr. Robert W. Geddes: Pardon?
Justice Thurgood Marshall: Does he not take an oath to support the laws of Indiana?
Mr. Robert W. Geddes: I do not know what oath he takes Mr. Justice, but under the regulation if the person believes his constitutional civil rights have been violated, he can appeal administratively.
Now if the Indiana regulation was a flat six month rule where there was no leeway for aid immediately, then I would say that whatever decision you make --
Justice Thurgood Marshall: You do not raise that, you just said the statute is unconstitutional as in violation of the Fourteenth Amendment.
Now, what administrative agency in Indiana is capable of deciding that?
Mr. Robert W. Geddes: The administrative agency cannot make that decision.
Justice Thurgood Marshall: Is it not the one point he is asking for in this case?
Mr. Robert W. Geddes: Yes he is, but when he filed his complaint with the Federal Court on that, the Federal Court, as interpret the entry, says there is not a substantial constitutional question raised by this regulation and therefore the parties must exhaust their available or administrative remedies.
Justice Thurgood Marshall: I thought we have passed on that one.
Mr. Robert W. Geddes: That is correct Mr. Justice.
It is our position that what they have alleged, the applicants alleged here.
There is a entire administrative process established in Indiana to handle.
For example, one of the application is denied you can administratively appeal it.
If it is not acted upon a reasonable time, you can administratively appeal it.
If your aid is revoked or modified you can administratively appeal it.
If you go to a case worker and he refuses to accept your application you can administratively appeal.
Unknown Speaker: Is the subject to review, is that decision subject to court review?
Mr. Robert W. Geddes: First step Mr. Justice is a State Department of Public Welfare and if the party is still dissatisfied then it is reviewed by the State Board of Public Welfare upon his request. And then the applicant can go into either the State of the Federal Court depending on his own choice.
Unknown Speaker: Which court?
Mr. Robert W. Geddes: Of his own, either of his own choice.
Unknown Speaker: He brings the new action, is it the de novo, is it a review on administrative record?
Mr. Robert W. Geddes: It is our opinion Your Honor with the available discovery, the entire record could be brought into the Federal Court Order State.
Unknown Speaker: Would the state court be limited to the administrative record or would it be de novo?
Mr. Robert W. Geddes: No, it would be de novo, a new trial.
Unknown Speaker: And similarly in the Federal Court?
Mr. Robert W. Geddes: It is correct Mr. Justice.
Unknown Speaker: When does it sound like much with administrative proceedings if you really are reviewing the administrative decision on the administrative records?
Mr. Robert W. Geddes: It could be both Mr. Justice.
In Indiana, we adapt the federal rules of civil procedure and discovery.
So you have a request for admission your deposition to interrogatory’s everything.
You could obtain your entire record administratively.
By the way which would only take five weeks and with the request for admissions alone, you would establish a record which the Federal Court could review and possibly avoid a two, three, four week trial.
Unknown Speaker: What is the history of the time it takes to complete the administrative review you described for?
Mr. Robert W. Geddes: It takes three weeks, two to three weeks to have a hearing once you ask for appeal.
And then there is two weeks for decision.
Now, one important thing about this administrative review is once the applicant files his appeal ask for appeal, there is nothing formal about, it is all informal, the county is mandated to review the situation.
In other words, if you have got a disgranted welfare applicant he says, they will not accept my application which they said here, but which was incorrect.
If that happens, all he has to do is informally ask for appeal and the county has to review it.
Justice Thurgood Marshall: At that time would it be moved, would it not take six months to get passed?
Mr. Robert W. Geddes: No, if the federal --
Justice Thurgood Marshall: I heard you said five months in this regard?
Mr. Robert W. Geddes: No.
I am sorry Mr. Justice.
Justice Thurgood Marshall: Well, when the exhaust state administrative remedy, how long that take?
Mr. Robert W. Geddes: Five weeks.
Justice Thurgood Marshall: How long does it takes to exhaust all the way up to that two state boards?
Mr. Robert W. Geddes: No, five weeks entirely from the -- if you go to the States Board of Public Welfare, you go to the state first that takes five weeks and then --
Justice Thurgood Marshall: You mean, you can get play all the way through the department and d final agency in the State of Indiana in five weeks?
Mr. Robert W. Geddes: Yes.
Mr. Justice that is correct.
Justice Thurgood Marshall: I never seen a state like that before in my life.
Mr. Robert W. Geddes: Mr. Justice and I do not have the pages right in the appellants brief and their appendix on the appeal section under the Indiana procedure appeal Section.
Justice Thurgood Marshall: Well, I do not think it is possible, but I do not think does it happen?
Mr. Robert W. Geddes: It does happen and it is demandated to happen.
Justice Thurgood Marshall: Five weeks.
Mr. Robert W. Geddes: Five weeks, that is correct Mr. Justice.
This was a law suit of the lawyers not the applicants.
Some of the applicants testifying court that when they went to the lawyers or the lawyers called them, they thought they were administratively appealing.
They got involved in the federal law suit which took a year practically to be heard just on this question.
Where they could have administratively had that out of the way in five weeks.
Unknown Speaker: Well that is the standard change after six months as to whether a person can get relief?
Mr. Robert W. Geddes: Yes, Mr. Justice.
Unknown Speaker: It is on the exceptional need they just need?
Mr. Robert W. Geddes: Yes, the testimony showed --
Unknown Speaker: Was there any application here for the emergency relief during the six months?
Mr. Robert W. Geddes: There was, all the applicant --
Unknown Speaker: With an attempt to show exceptional needs?
Mr. Robert W. Geddes: I do not understand your question Mr. Justice.
Unknown Speaker: Well, the statute permits or the regulations permits relief within the six months.
Before the six months expired in the case there is extraordinary need.
Mr. Robert W. Geddes: Yes, that is correct.
Unknown Speaker: Was there any attempt here to get that kind of extraordinary relief?
Mr. Robert W. Geddes: Yes there was.
Unknown Speaker: And it was denied?
Mr. Robert W. Geddes: No, it was granted.
Dorothy Enoch one of the claimants who said, I could not get and wait six months.
She received benefits in two months after her husband left the house.
Unknown Speaker: But all of them did not.
Mr. Robert W. Geddes: No, Lucille Hall received it in a few months.
Brenda Steel that is one of the claimant said, she said, I did not even have any need problems I was living with my post.
But this six months is only a conclusive presumption.
In other words, if the need is there in the absence that action bonafide you can get it immediately and the evidence show that.
Unknown Speaker: Well that would mean there is -- really is there any case of controversy here?
Mr. Robert W. Geddes: That is correct Mr. Justice.
Unknown Speaker: If you are really saying that is another strange way of writing a regulation, putting in a regulation that required six month separation and then saying it does not mean anything.
Mr. Robert W. Geddes: No, it is given in the case where you see a conclusive presumption, if is it over six months. In other words, continued absence you got to have certain period of time.
The question is how long, is it a day, week or month.
Unknown Speaker: You still have to show need after six months, do you not?
Mr. Robert W. Geddes: You still have to show need and the evidence showed in which we pointed out in our brief.
The testimony showed that the standard of need actually applied was the same if it was less than six months or over six months.
So this equal protection argument is saying that you depriving somebody less than six months over six months was completely refuted.
Unknown Speaker: Well, that is the standard of need.
It is the same but it does not -–it is not the finding that there is only parent is the same.
You have already told us that after six months has the conclusive presumption that was one parent has left.
Before six months there is no such presumption.
Mr. Robert W. Geddes: Before six months if it shown that it is action bonafide separation in the need they are immediately eligible and that is all that the Social Security Act requires.
Unknown Speaker: Well, maybe this does not -- what is involved here is perhaps not technically exhaustion of administrative remedies, but rather your claim that in the actual administration of this rule it does mean what it seems to me.
Is that what you are saying?
That in the actual administration of welfare in Indiana or in Marion County, Indiana that this six months rule is a not administered so as to make it mean what it seems to me.
Is that what you are telling us?
Mr. Robert W. Geddes: That possibly that could be correct.
Unknown Speaker: And that therefore they had proceeded to seek relief under the administrative procedures available.
They would have found that this rule was no barrier.
Is that it?
Mr. Robert W. Geddes: That is correct Mr. Justice.
Here we have a situation where it is build-in administrative procedure and if you can bypass it here and under any 1983 claim then what you are having happen is the Federal Courts in reality are becoming the welfare administrators to review every welfare claim.
Unknown Speaker: (Inaudible) 16 witnesses in the record here do you know?
Mr. Robert W. Geddes: Yes, there is, that is correct Mr. Justice.
Unknown Speaker: Are you suggesting -- or were these 16 witnesses were they all welfare claims?
Mr. Robert W. Geddes: No, part of witnesses there were five, I believe there were nine witnesses for the claimants and the remaining or ten witnesses and remaining --
Unknown Speaker: And how many of them were deserted mothers?
Mr. Robert W. Geddes: Counting the witnesses we put on there were 11.
Unknown Speaker: And then each of them testified.
Was there evidence from each of them that or some of them at she in fact got the early assistance at two months or one month that you have been telling?
Mr. Robert W. Geddes: Seven of the witnesses who testified (Inaudible) received aid.
Unknown Speaker: In less than six months?
Mr. Robert W. Geddes: And I believe it was in less than six months and no claim (Inaudible) called, I believe that is correct Mr. Justice.
Justice Thurgood Marshall: But is it, they come from some trusty or somebody?
Mr. Robert W. Geddes: No, before they received aid from the --
Justice Thurgood Marshall: Why if it so?
Mr. Robert W. Geddes: They are receiving inter benefits from the trustee.
Or they were because in Indiana you can get immediately benefits from the trustees as soon you walk in.
So you do not have a situation, thank you.
Chief Justice Warren E. Burger: Thank you Mr. Geddes.
Mr. Noland it is gone over to let you think.
You have about six minutes left.
Justice William J. Brennan: How about this, is that the fact?
Rebuttal of Jon D. Noland
Mr. Jon D. Noland: The fact is Mr. Justice Brennan that several other witnesses did testified that they received aid within the six month period.
Two of the witnesses, two of the claimants -- one of the claimants or plaintiffs and one witness were denied aid until the full expiration of the six month period.
This is said forth on page 8 of appellants brief.
The claimant Bowman filed four applications.
Justice Potter Stewart: At least I gathered class action.
Mr. Jon D. Noland: That is correct.
Unknown Speaker: So I suppose your position is that one of them, the case is to one is that she was denied for six months that she was just standing on the class action that --
Mr. Jon D. Noland: That it would be our position, Your Honor.
Unknown Speaker: And that she get, did that one get aid after six months?
Mr. Jon D. Noland: The plaintiff Bowman did receive aid after six months.
The witnesses Luke was denied aid for six months and she began receiving assistance automatically upon the expiration of the six month period.
Chief Justice Warren E. Burger: In another words, that the administrative proceedings have not been completed until six months then they are bound to get their payment.
Mr. Jon D. Noland: Unless circumstances have changed.
One of the witnesses for example had found a job in the inter period and did not pursue it any further after the six month period.
Chief Justice Warren E. Burger: That was an eligibility question.
Mr. Jon D. Noland: That is correct.
With respect to the time requirements for the administrative proceedings brought out by Mr. Justice Marshall, the record is very sparse on this question.
There is no doubt that what the statute and regulations require that hearings be handled very expeditiously.
However, the two week period even from the limited evidence in this record is obviously not followed.
On page 28 of the Appendix for example, in response to an interrogatory, Mr. Sterick the State Administrator stated that an appeal was held on December 19, 1969 and the decision was released on April 9, 1970 substantially more than a two week period.
Similarly, the only witness who took administrative review testified at page 110 of the appendix that the decision was rendered by the state on December 29 or September 29, 1970 and the hearing was held on August 27, 1970.
Again, substantially more than a two week.
Justice Thurgood Marshall: The statute said that there had to be a showing that the spouse had left without any idea of ever returning.
Mr. Jon D. Noland: Congress desired to enact such a statute.
We would find no moral weapon.
The point is --
Justice Thurgood Marshall: These things in merit in the argument that this is really not a six months if you go in there and say that my husband left last night with a one trip ticket to -- one way trip to Moscow, she would be eligible.
That is what I understand the state's condition.
Mr. Jon D. Noland: I would think the state or the administrator would find that to be a continued absence.
Justice Thurgood Marshall: Well, what is the problem now?
Statute, you just object to showing it?
Mr. Jon D. Noland: No, Your Honor we object the showing exceptional circumstances of need which we believe constitutes a denial of equal protection and also a contrary to the Social Security Act.
Justice Thurgood Marshall: Is it really, you have to show the need even after six months?
Mr. Jon D. Noland: That is correct but you do not have to show exceptional circumstances of need.
Justice Thurgood Marshall: That is right, but that is where you are on that one.
Mr. Jon D. Noland: Whatever that requirement means, it certainly must mean more than plain need.
And we object to it on that ground.
Furthermore, with respect to the doctrine of exhaustion of administrative remedies, appellants would again urge that the administrative remedy in this case was not adequate.
We heard talk again of discovery and yet the record in this very case shows that any discovery effort at the administrative level would be feudal because the State Department has already told us that we must obtain the court order in order to obtain the documents requested.
If it stated in Monroe versus Pape, and in the McNeese case, Section 1983 does truly constitute a remedy supplementary to any state remedy and we believe that that must be construed as granting an exemption from exhaustion either of administrative or of your state judicial remedies.
In addition of course, there are important federal questions involved in this case.
We are talking about essentially federal program under the Social Security Act.
We are talking about challenges to a state regulation that has been invalid on space and has applied, and we believe it is appropriate in the case of this nature for those decisions to be made for an impartial tribunal.
We see no need to exhaust state administrative remedies in such a case.
Chief Justice Warren E. Burger: Thank you Mr. Noland.
Thank you gentlemen.
The case is submitted.