YOUAKIM v. MILLER

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Argument of Patrick A. Keenan

Chief Justice Warren E. Burger: We will hear arguments first this morning in Youakim against Miller.

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

Mr. Patrick A. Keenan: Mr. Chief Justice and may it please this honorable Court.

The Illinois foster care payment scheme denies the federal foster care payments to children who are placed in foster homes maintained by their relatives.

The issues in this case are; first, whether the denial by the State of Illinois violates the Social Securities Act and the Supremacy Clause, and second, whether that denial violates Equal Protection.

The best evidence that the Illinois foster care payment scheme is in violation of the Social Securities Act is found in the position of the Department of Health, Education and Welfare, the department charged with the stewardship of administration of the Social Security Act.

Twice; first, in a brief filed on behalf of the department by the Solicitor General in response to this Court’s invitation, and second, in a program instruction issued as recently as October of 1974, the Department of Health, Education, and Welfare has unequivocally taken the position that such payments must be afforded to related foster parents.

Unknown Speaker: Is that program instruction outline with the existing regulations?

Mr. Patrick A. Keenan: That program instruction is consistent with the existing regulations, Mr. Justice, in the plaintiffs’ view.

Unknown Speaker: Is it consistent with it?

Mr. Patrick A. Keenan: It is consistent with it.

There is nothing -- the regulations do not speak directly to the question of whether or not the payments can be made.

I respectfully cite this Court to its ruling in Townsend versus Swank and the test therein contained which states that absent clear evidence on the face of the statute or in the legislative history that the states have the option to withhold the payments from a particular group of, otherwise eligible citizens, that those payments should be afforded.

I would also respectfully cite this Court to its recent decision in the case of Philbrook versus Glodgett.

In that case, the State of Vermont attempted to exercise the option on behalf of the state to tell its citizens that they had to accept eligibility for the lower of two levels -- the lower of two categorical assistance programs for which they might be eligible.

The State of Illinois here is trying to do essentially the same thing.

Justice William J. Brennan: I have read somewhere perhaps along these papers that the HEW has since amended or revised the applicable and pertinent regulations since this case was filed in?

Mr. Patrick A. Keenan: It is not contained in the regulations, Mr. Justice Brennan.

It is contained in the October 1974 program instructions which are set out in the appellant’s brief at page 27 and the pages following.

Justice William J. Brennan: Is that revision pertinent to the issue we have?

Mr. Patrick A. Keenan: I think it is not a revision, Your Honor.

Justice William J. Brennan: I see.

Mr. Patrick A. Keenan: I think that it is a revision of HEW’s of one position that have been previously taken by one regional administrator by HEW, but prior to this very clear program instruction, I think that the Washington Legal Department of HEW had not rendered a specific opinion on this.

I think in 1974, after this case have been filed before this Court, after the District Courts in South Dakota and Ohio had decided this identical question the same way the plaintiffs now urge upon this Court, then HEW saw fit to clarify what it regarded to be confusion on the parts of Illinois and certain other states.

Justice William J. Brennan: What is your position?

Mr. Patrick A. Keenan: It does, indeed, Your Honor.

Justice William H. Rehnquist: As I read the District Court’s opinion, they did not pass on any statutory question.

They simply treated the equal protection contention and ruled it against you?

Mr. Patrick A. Keenan: I think the District Court, the Three-Judge District Court entertained the statutory contention to the following extent.

The Three-Judge Court specifically stated that it found the Illinois foster care scheme to be consistent with, rather than in conflict, the purposes of the Illinois foster care scheme to be consistent with the federal statutes as the plaintiffs had urged in their arguments and briefs below and in oral argument.

Justice William H. Rehnquist: Where do you find that in the District Court opinion?

Is that at page 59 of the appendix?

Mr. Patrick A. Keenan: Yes, Your Honor.

Apart from being inconsistent with the federal scheme, the Illinois scheme in general seems to parallel it and then at footnote, it cites the Illinois exception to policy scheme and I think that is about the only extent to which the District Court entertained the statutory interpretation question.

Justice William H. Rehnquist: If you take from page 55 of the appendix, where the District Court has this -- its opinion ahead at the merits to page 60, they simply concluded at the end “The Illinois scheme does not deny plaintiffs equal protection of the law.

The summary judgment is entered in favor of the defendants.”

I think you are somewhat hard pressed to show they squarely addressed any statutory contention?

Mr. Patrick A. Keenan: I would candidly admit to Your Honor that the issue of whether or not the Illinois scheme violates the Social Security Act or is in inconsistent with the Social Security Act was much more fully briefed in the appeal, and that is the case for several reasons.

First, it is just the way the case came up in the District Court and I will admit that I have learned a considerable amount about statutory interpretation law since this complaint was originally filed some-three years ago, Your Honor.

Justice William H. Rehnquist: Did you -- did you allege in the complaint that there was a conflict between the federal statute and the state?

Mr. Patrick A. Keenan: We alleged that it violated the purposes of the Federal Act and it violated the purposes of the state law which must be consistent with the federal law, because in order to participate in the categorical assistance programs under Title V, the purposes of the state law must be consistent with the purposes of the federal law, and the overriding purpose which the plaintiffs allege is violated is that the law must be administered and executed in order to maintain and strengthen families, and the Illinois foster care payment scheme, as it is now written, creates an economic disincentive to that.

It pulls families apart, as happened to the plaintiffs in this case.

Unknown Speaker: Tell me, Mr. Kennan, in light of our colloquy earlier on this clarification as you term it, if you did raise the issue of inconsistency with the federal statute rather than reach the constitutional question, why would we not remand this for reconsideration in light of the clarification?

Mr. Patrick A. Keenan: I think it more appropriate, Your Honor, that this Court retain its jurisdiction and decide the issue on the merits.

Unknown Speaker: The constitutional issue?

Mr. Patrick A. Keenan: No, whatever issue this Court decides of course, but this Court traditionally entertains the statutory interpretation issue and seeks grounds for decision other than the constitutional one.

Unknown Speaker: Provided the statutory issue is before us?

Mr. Patrick A. Keenan: Provided the statutory issue is before you and I think it is sufficiently raised by the allegation in the complaint; first, that the Illinois foster care payment scheme violates the purpose of the federal law and second, by the language in the District Court opinion which would specifically -- which I would call a finding to the effect that the Illinois foster care payment scheme does not -- is not inconsistent with the federal law, but it rather parallels it.

I think that was error on the part of the District Court to make that as a finding.

Chief Justice Warren E. Burger: This clarification, if that is the right word it, was issued two years after you law suit started, was it not?

Mr. Patrick A. Keenan: Yes, Your Honor.

Chief Justice Warren E. Burger: And on page 28, about eight line form the bottom -- beginning about nine lines from the bottom, what does that language mean?

“The foster care rate of payment prevails regardless of whether or not the foster home is operated by a relative.”

Is that now binding on all the states?

Mr. Patrick A. Keenan: The plaintiffs believe it is, Your Honor, and I think that it is clear that the position of the Department of HEW thinks that it is.

Chief Justice Warren E. Burger: If we sent the case back, would that not dispose of it, if we remanded the case along the lines that Mr. Justice Brennan had just hypothesized to you?

Mr. Patrick A. Keenan: I would urge that this Court should not.

Chief Justice Warren E. Burger: Well, do we decide matters that are not necessary for decision up here?

Mr. Patrick A. Keenan: I believe this matter is necessary for decision, Mr. Chief Justice because the only method the Department of Health, Education and Welfare has to enforce what it regards to -- what is absent in the opinion by this Court, merely an opinion by counsel which will obviously be disagreed with by the Attorney Generals of the states which have the scheme similar to Illinois, the only method that HEW has of enforcing this is conducting a compliance hearing.

Now, compliance hearings have been, how I would say, quite unsuccessful in securing immediate compliance.

It is not secret that the Illinois foster care -- that the Illinois child welfare payment scheme in general is fraught with confusion.

I would expect that to be the case in other states.

I think that if this Court were to retain its jurisdiction that the policy of securing uniform national administration of the Social Security Act, particularly Title V of the Social Security Act, would be much better served than by leaving it with the Department of Health, Education and Welfare.

I believe if this Court were to remand with instructions to the State of Illinois that they should follow this new program instruction, that the Attorney General would advise the officials of the state along the lines that he has urged in his brief, that is that, we do not, this is the state speaking, “the State of Illinois does not believe this to be a binding advisement or a binding policy on the part of HEW,” because they say so in their brief, Your Honor.

Chief Justice Warren E. Burger: But if it were remanded for reconsideration in the light of this with new directive, might that not have something to do with their view of the matter?

Mr. Patrick A. Keenan: It might indeed, Your Honor, but I respectfully submit that question is not before the Court and that the purposes of, first of all, efficiency in national administration and the speedy justice would be much better served if this Court were to retain its jurisdiction and to decide the case on the merits.

This case is about three-and-a half years old already, Your Honor, and the named plaintiffs and members of the plaintiff class, if their contention is correct, they have suffered a violation of their rights to categorical assistance payments under the Social Security Act.

If this Court sees fit to remand and then sends it back to the District Court, two of the judges of which are no longer available to sit, one of the judge of course being Judge Stevens, then it is going to be another lengthy and complex process before the case can be resolved.

I think if this Court were to retain its jurisdiction and decide the case on its merits that would avoid the problem of the possibility of Illinois and other states continuing their conflicting interpretation, continuing their position that this October 1974 program guideline is not binding, is not an accurate representation of what the Social Security Act requires.

Justice William H. Rehnquist: Mr. Keenan, in your prayer for relief on page 16 of the appendix, consisting of a number of paragraphs A, B, C, D, E, and F, looking at paragraph E, you asked that the Three-Judge Court enter a final judgment permanently enjoin the state director, agents, etcetera acting in concert from enforcing, applying, or executing Illinois revised statutes and Illinois family serve as placement management as written because said statutes and regulations violate equal protection of the law as guaranteed by plaintiffs by the Fourteenth Amendment to the Constitution of the United States.

Now, that is the only thing that I can find in your prayer for relief that suggest the basis for invalidating those statutes, and that is strictly a constitutional claim?

Mr. Patrick A. Keenan: That is correct, Your Honor.

I would respectfully ask this Court to entertain the rule of construction of pleadings that is particularly on cases that are decided in summary on motion to dismiss or on a summary judgment as this case was, that if the well-pleaded facts of the complaint set out any basis on which the Trial Court can grant relief that the Court should grant that relief, whether or not that issue was raised on the law.

The facts of the complaint were well-pleaded.

There were affidavits filed on both sides.

We respectfully urge that for purposes of this Court’s jurisdiction that the District Court should have, notwithstanding the failure to pray for an injunction on strictly statutory interpretation grounds in the prayer, that the District Court should have recognized that issue, seized it and granted the relief.

In other words, the law is the law.

If the Illinois scheme is, in fact, in violation of the Social Security Act, then first the Trial Court and then I would respectfully ask that this Court recognize that and enter the appropriate judgment.

I would respectfully ask this Court to consider the effects of reversal.

The state may take the position that increased expenditures will be the result if the present foster care payment scheme in Illinois is invalidated.

I respectfully urge upon this Court that that would not follow.

That what would in fact happen if relatives were available for foster care placement that first there would be a movement of children who are now placed in stranger’s homes into the homes maintained by their relatives.

That would mean two things.

First, there would be a number of already licensed, already recruited, and already available foster homes maintained by strangers that Illinois could place its wards in, second I think there would be a movement of these children out of institutional placements into placement with relatives.

The third possible effect would be that the process of recruiting foster homes would be much simplified.

Under the present scheme, the placement worker does not look first to the relatives for a place in which to put a child, even though the federal law requires it, even thought the state law requires it.

The federal law is unquestionably clear that if it is at all possible for a ward of the state to live with relatives that that would be the best placement for the ward assuming --

Unknown Speaker: (Inaudible)

Mr. Patrick A. Keenan: They do not do it, Your Honor because of the scheme which precludes licensing of relatives and in the placement worker’s mind that prevention of licensing means that they simply do not look first to the relatives.

They look first to the strangers, and the result is that, as soon as the child is declared a ward of the Juvenile Court, the placement worker who has a heavy case load and is under pressure to remove the child from the home, that the Court has of course ordered the child to remove from, must find a place quickly and the first place they look is an already licensed foster home because that has been the practice in the state and because that is the way the statute is set up.

Too often, placement workers have approached a relative and say “can you take in this child who is a ward of the Court?”

The relative said as did the plaintiffs in this case, “we would like to, but we cannot afford it.

We cannot afford to subsidize what it clearly the state’s obligation.”

Chief Justice Warren E. Burger: Is it not conventional for a state to proceed on the assumption that the kin folk, if we may call them that, have a greater obligation to take care of their relatives than strangers?

Mr. Patrick A. Keenan: The plaintiffs respectfully urge that what is illegal cannot be rational in terms of equal protection jurisprudence.

Chief Justice Warren E. Burger: Well, that does not answer the question.

Mr. Patrick A. Keenan: I think it would not be rational because it would be -- because such a position on the part of the State of Illinois would be based on a mistake of law.

The Illinois --

Chief Justice Warren E. Burger: Has it not been a tradition, going back not just to the history of this country, but to all civilized people that people take care of their own?

Mr. Patrick A. Keenan: It is of course a tradition, Your Honor.

Chief Justice Warren E. Burger: Well, that tradition as you say, cannot form a rational basis for a legislative action?

Mr. Patrick A. Keenan: That tradition cannot form a rational basis for legislative action in the United States in 1970, Your Honor, particularly when the Illinois legislature has stated that the only persons who are responsible for the care of children are the natural and adoptive parents.

The Illinois legislature, by enacting that law, recognized that willing as the relatives might be to discharge their moral duty if the Court please and to take in and to take care of their relatives, that it is simply not economically feasible, and I respectfully cite to the Court once again to what occurred in this case.

The Youakim subsidized the state’s obligation as heavily as they could.

They took in two of the children and kept them for as long as they can, but they could not take in the other two because they could not afford to further.

The state has the obligation to maintain those children.

The Congress has recognized that they are more expensive to maintain than children who are removed in the homes than children who are kept in the homes of the parents or caretaker -- in the homes of parents or caretaker relatives.

It seems that, in light of the clear expression by the Congress that these children should be placed with relatives, any enactment by the Congress of the economic tools in which to arrange it and the statement by the Illinois legislature that no one save the natural or adoptive parents or the state guardian has the legal duty to take care of it, then it is not rational for the state to proceed on that assumption given the economic realities of the State of Illinois right now.

Chief Justice Warren E. Burger: When they not go into the home of a person who is related, there are no standards or I will put that as a question, are there any standards by which the environment can be measured by the state as distinguished from going into the home of a licensed foster parent?

Mr. Patrick A. Keenan: The standards which are imposed upon the plaintiff-related foster parents are identical to the standards imposed upon all other foster homes.

The duties of the plaintiff-related foster parents are identical to the duties of all foster parents in the State of Illinois.

The expense of maintaining a larger home, one that has a separate bedroom for the foster child, of maintaining a cleaner home, of maintaining higher standards of child care, of maintaining a better family environment according to the detailed regulations set out in the requirements for foster homes in Illinois are all imposed upon the plaintiffs.

The only thing that is does not go along with the package is the financial assistance to the child which the child needs to stay in such a home.

It does costs more -- it costs the same and I think the state should concede that it costs the same to maintain a child in a foster home maintained by his relatives as it costs to maintain a child in a foster home maintained by a stranger.

Certainly, they have to comply with the same standards.

Certainly, they have to submit to the same amount of government intervention.

They have to file the same reports.

The parents have the same duties.

Yet, only in the case of the plaintiffs’ children does the state say to the children “we will not pay all your expenses and unless your relatives are willing to subsidize part of my that is the state’s guardianship obligation to support you, you may not live in what Congress has declared to be the best possible placement for you.

Justice Byron R. White: Were you aware of this program instruction when the case was in the District Court?

Mr. Patrick A. Keenan: The program instruction was issued after the District Court’s opinion was written, Your Honor.

The District Court filed its opinion in --

Justice Byron R. White: January of 1974?

Mr. Patrick A. Keenan: -- January or February of 1974, Your Honor, and the program instruction was issued in October.

Justice Byron R. White: In October and then you took your notice of appeal?

Mr. Patrick A. Keenan: In April of 1974 so the record was closed and the case was pending before this Court at the time the program instruction issued.

I also note, Your Honor, and I think it may be important that this Court invited the Department of Health, Education and Welfare to address itself in an amicus brief to this.

That invitation issued to the solicitor and thence I presume over to the Department of Health, Education and Welfare in October 1974, I think it is not unreasonable to conclude that this clarification resulted from the considerable legal research that was done in the solicitor’s office as a result of this Court’s invitation.

Justice William J. Brennan: Well, may I suggest though Mr. Keenan, the solicitor filed in response to our invitation his memorandum on February 18th, that is four or five months after the promulgation of the instruction and I do not find any reference to the instruction when he filed and he has not filed a brief on the merits.

This was only in response to our invitation at the time that your appeal was pending, the jurisdictional statement, before we noted probable jurisdiction?

Mr. Patrick A. Keenan: Yes, Your Honor.

It is speculative upon my part that there is interlocking causation between those two events.

Justice William J. Brennan: Why do you suggest there is no reference to the instruction, but the solicitor did file in February?

Mr. Patrick A. Keenan: Mr. Justice Brennan, I did not write the brief for them.

That is the only answer I can possibly make. I would, if the Court pleases, if there are no questions--

Justice Byron R. White: I take it, from what you say, you certainly would not object from a decision on your behalf based on a statutory ground whether these decision issues in the District Court are here?

Mr. Patrick A. Keenan: I would not, Your Honor.

I urge that --

Justice Byron R. White: You would just like to get it over with?

Mr. Patrick A. Keenan: I certainly would and certainly a decision from this Court would have a much quicker effect on giving national uniform execution of Title V.

Justice Byron R. White: But do you not agree now that the statutory ground has emerged clearly and you insist that it is in the case, do you not agree that that has to be reached first?

Mr. Patrick A. Keenan: I do, Your Honor and I am respectfully urging that this Court reach that ground first and it properly decides this case as it did in the Townsend case, as it has decided a series of other social security cases.

Justice Byron R. White: What if the statutory ground had been reached in the District Court at first and it had been decided in your favor?

The case could never have gotten here directly, could it?

Mr. Patrick A. Keenan: That is correct, Your Honor.

If there are no further questions at this time, I would respectfully reserve about five minutes of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Patrick A. Keenan: Thank you, Your Honor.

Chief Justice Warren E. Burger: Mr. Bargiel?

Argument of Paul J. Bargiel

Mr. Paul J. Bargiel: Mr. Chief Justice and may it please the Court.

My name is Paul Bargiel and I am an Assistant Attorney General from the State of Illinois and I represent the Illinois Department of Children and Family Services in this matter.

I would respectfully suggest that the controversy as presented involves two different aspects.

The first of those is, can a relative under the Social Security Act ever be a foster parent and secondly, if a foster parent is paid additional assistance over and above what a relative is paid for to care for a needy and dependent child, can that violate the Equal Protection Clause?

I would like to direct myself to the first aspect of the case at this time.

We would respectfully submit that the plain meaning of the provisions of Title V of the AFDC Program, support the conclusion that relatives are not foster parents and are not eligible for aid under the provisions of Section 608.

The basic AFDC Program set out in Title V defines essentially three classes of needy or dependent children who are eligible for aid.

Section 606 defines the first class and says that a dependent child is one who is deprived of parental support for certain specified reasons and lives with a relative specified in Section 606.

Unknown Speaker: Is that not what the District Court decided?

Mr. Paul J. Bargiel: Your Honor, the District Court decided that there was no denial of equal protection and it made the determination that the Illinois welfare scheme rather than running contrary to the federal statute is parallel to the federal statute.

Unknown Speaker: You did not present this argument to the District Court?

Mr. Paul J. Bargiel: We presented the argument that the -- we took the position that the Illinois welfare scheme, to the extent that it was presented, we took the position that the Illinois welfare scheme was consistent with the federal statute.

Justice Byron R. White: I understand that, but did you make this argument that you are making now to the District Court?

Mr. Paul J. Bargiel: Well, I did not make the argument to the District Court.

The argument was made that --

Justice Byron R. White: But this argument takes you farther than the District Court took you, would it not?

Mr. Paul J. Bargiel: That is true.

I agree with Justice Rehnquist.

Justice Byron R. White: Yes, but the state would be getting more relief if we decided in your favor on this ground than you got in the District Court?

Mr. Paul J. Bargiel: I suppose that it is conceivable in that the Federal District Court only decided the equal protection question, but I think it is certainly implied that the Federal District Court would have, had it considered or had it made specific findings with regard to the question of the consistency of the Illinois welfare scheme to the federal scheme would have found that in fact they impliedly found that there was no inconsistency.

Unknown Speaker: It did reach the constitutional question what must have been at least a premise that the construction is contrary to the one you urge, they reached the equal protection argument?

Mr. Paul J. Bargiel: No, I would assume, Your Honor, that the District Court, had it considered the statutory construction question, would have had to determine the statutory construction in our favor and that is that there was no difference between the two if they were to reach the --

Unknown Speaker: Is the construction you urge consistent with this so-called clarification?

Does the HEW, in other words, agree with you on that?

Mr. Paul J. Bargiel: No, I think that is quite clear.

The HEW does not agree with us and that is, again, one of the reasons that we are urging this position, that in addition to the memorandum which was filed, which Mr. Keenan referred to by the Solicitor General.

Justice Thurgood Marshall: Are you going to follow this or not?

Mr. Paul J. Bargiel: Are we going to follow what, Your Honor, the new program instruction?

Justice Thurgood Marshall: Yes.

Have you taken any steps to do it?

Mr. Paul J. Bargiel: To my knowledge, no steps have been taken at this particular --

Justice Thurgood Marshall: Well, what did you do, just ignored it?

Mr. Paul J. Bargiel: I do not know.

I do not think the State of Illinois is going to ignore it, but I certainly think that the position of the Department of Children and Family Services, as of the last time that I checked and currently is that the program instruction of HEW is erroneous and does not --

Unknown Speaker: Erroneous as to the statute --

Mr. Paul J. Bargiel: That is correct.

Unknown Speaker: -- that is the one your urge and if you are right, then Illinois does not have to follow the instruction?

Mr. Paul J. Bargiel: That is correct, Your Honor.

That is our current position.

At least, it is current as to the time I came here.

Justice Potter Stewart: And if you are right then, as my brother White has suggested, you get more than is accorded to you by the District Court because there is nothing n the District Court opinion that says that it would be improper or unconstitutional for Illinois to pay related foster parents the same as unrelated foster parents are paid.

That decision of the District Court simply says it is not unconstitutional to pay them less, but your statutory argument now would be that it would be contrary to the statute to even consider related foster parents as foster parents?

Mr. Paul J. Bargiel: That is precisely correct.

Justice Byron R. White: Or at least you say under the Social Security Act, the state does not have to pay them anything to related foster parents?

Mr. Paul J. Bargiel: No, that is not our position.

Our position is --

Unknown Speaker: That is what I --

Mr. Paul J. Bargiel: Our position, Your Honor, is that related persons, under the Social Security Act, are not foster parents.

By definition those two categories are mutually exclusive.

Justice Byron R. White: So, they are not foster parents?

Mr. Paul J. Bargiel: That is precisely correct.

We do not say that we are --

Justice Byron R. White: They are not parents for the purposes of AFDC?

Mr. Paul J. Bargiel: They are relatives for purposes of AFDC and eligible under Section 608.

Justice Byron R. White: But not as foster parents.

Mr. Paul J. Bargiel: Right, but not as foster parents. Our position is not that we do not have to pay them anything, but that they are not eligible for categorical assistance under Section 608.

My position was, initially, that I would think that the Court had it considered or if it did and I do not know except from the opinion, it would have impliedly had to come to the conclusion that the position that we had take was consistent with the Social Security Act before it got to the equal protection question.

Now, that traditionally is what they should have done.

Justice Potter Stewart: This does not show any evidence of that and perhaps in response to what my brother Rehnquist has pointed out, the complaint really does not make a statutory claim?

Mr. Paul J. Bargiel: I, in all candor have to agree with that.

The question -- I came to that realization as of a couple of days ago, as a matter of fact.

It is clear that the complaint raises only an equal protection ground and it is clear that the prayer for relief only asks for relief on that basis and the Three-Judge Court’s opinion only makes one small reference to the comparison between the Illinois welfare scheme and the statutory scheme.

At any rate, that position was argued by the appellants and I certainly did not want to be remiss in responding to it.

If I may, then I will very briefly move along and say that our position with regard to the Social Security Act is that Section 606 sets out certain specified relatives and says the children who live with these relatives are eligible for aid, and father and mother are one of the specified relatives.

Section 608, if you move along, it defines a dependent child as one, who notwithstanding Section 606(a) of this Title, shall also include a child who would meet the requirements of Section 606(a), that is, that he would be living with a certain specified relative except for his removal after April 30, 1961 from the home of a relative specified in Section 606 and then if you drop down to --

Justice Byron R. White: Where are you?

What are you reading?

Mr. Paul J. Bargiel: I am sorry.

I apologize, Your Honor.

I am reading from the supplement to our brief, appendix, it is A9 and it sets out Section 608 of the Social Security Act.

If I may, I will start again.

Unknown Speaker: I am looking forward to finish this discussion.

Tell us why we should ignore the contrary interpretation of HEW? Ordinarily an agency’s interpretation of its own statute is something which we give considerable respect, is it not?

Mr. Paul J. Bargiel: That is very definitely true and I certainly do not mean to be disrespectful in urging that that particular program instruction is erroneous, but it is also --

Unknown Speaker: What are the principles which entitle us to ignore it?

Mr. Paul J. Bargiel: Well, I think, first, this Court has -- this Court has on occasion, certainly more than once come to the conclusion that an HEW interpretation of a statute was erroneous.

I think Burns v. Alcala was such a case.

Our position here is that the first that the Court ought to look to the plain meaning, the words employed by the Congress in the statute in attempt to discern the intent of the Congress in enacting a particular Section of the statute and if the intent can be discerned in that fashion, then it ought to be followed and we are suggesting that Section 608 defines a class of needy dependent children does so in terms which are so unambiguous with reference to the Act that only one conclusion is possible.

One conclusion as a parent and that is the relatives are not foster parents and I say if I may, very briefly refer to Court to the language employed there.

It says, at the beginning, the term “dependent child” shall, notwithstanding Section 606(a) of this Title, also include a child who would meet the requirements of such Section 606(a) or of Section 607 of this Title except for his removal after April 30, 1961 from the home of a relative and as a result of a judicial determination.

And we submit that that part clearly indicates that Section 608, the definition of dependent child is to be applied notwithstanding any specified relative in Section 606 and it is also to include a new category of children -- the employment of the words “also include” indicates that this is a creation of a new class, and then it refers to -- further defines the class as children who are removed from the home of a specified relative and then if you drop down about five lines from the bottom to what is designated A3, it says “who was been placed in a foster family home or child care institution as a result as such determination.”

So, we are suggesting that, there the Congress has employed the term “foster family home or child care institution” and above they have talked about removing a child from the home of a relative and we would suggest that foster family home or child care institution means something other than the home of a relative because a child was removed from the home of a relative and put into a foster family home or child care institution.

So we would suggest that that language indicates that Congress intended that a foster family home was a non-related home.

And if you go on, in that very same provision if you go to page A11 which continues the reproduction of Section 608 and you go to part F, part F requires that any state who intends to employ the foster care program also have a plan which, in my language, the provision indicates in my language, is to rehabilitate the home from which the child came so that, hopefully, the child can go back there and it says, the language here says that it must include a provision for --

Unknown Speaker: A11?

Mr. Paul J. Bargiel: F, it is on A11 and F, Your Honor.

Unknown Speaker: F.

Mr. Paul J. Bargiel: I am reading from F.

It says that the state plan must include a provision for development of a plan for each such child, including periodic review of the necessity of the child’s being in a foster family home or child care institution to assure that he receives proper care and that services are provided which are designed to improve the conditions in the home from which he was removed or to otherwise make possible his being placed in the home of a relative specified in Section 606.

And we submit that this provision, this requirement on the state has no meaning whatsoever once a child is already in the home of a relative.

These children came, at least as I understand it, from foster family homes where people were unrelated to them or they came from childcare institutions, and this provision in the Social Security Act has no meaning to the states.

It has no meaning whatsoever if the purpose of the provision is to require the state to enable these children or enable a home from which they came, which was an unrelated home, to be such that the children can go back.

It is clear.

I agree with counsel that children are in the home which is best suited for them and they are not receiving foster care anymore.

I think that is the clear indication of these provisions.

I think this provision also indicates that foster care is temporary care by definition.

It is not intended to be a permanent placement for any child and yet if you consider the complaint which was filed in this particular case on behalf of the plaintiffs and all the necessary inferences and implications which come from that, they suggest they are in the best home which is possible for them and the care which they are receiving is not intended, at least on their part, to be temporary care but permanent care.

So, we would submit that that also indicates that these people are not foster parents, the children are not foster children, and they are not receiving foster care, certainly not under the terms of the Social Security Act.

That, in a nutshell, is our position with regard to the Illinois welfare scheme as it comports to the Social Security Act, and therefore, the Supremacy Clause of the United States Constitution.

We would also suggest that, with regard to the equal protection argument which is raised that the distinction between relatives and unrelated foster parents is based upon differences which are irrationally related to the foster care program.

Now, it is clear that the statute which creates the Illinois Department of Children and Family Services has, as its overriding purpose, the care of all the neglected children of the State of Illinois, and that purpose is also reflected in the aid of the families with dependent children program.

Unknown Speaker: What would happen in case and I gather all these children were sent to relatives because the conditions at the foster home were not what was desired, is that right?

Mr. Paul J. Bargiel: I do not know if there is any generalization which can be drawn.

Unknown Speaker: Whatever the reason was, they were in foster homes, non-related, were they not?

Mr. Paul J. Bargiel: Right.

Unknown Speaker: And they then went to the homes of relatives.

Mr. Paul J. Bargiel: Yes, I do not think we can assume from that, Your Honor --

Unknown Speaker: Well, whatever the reason may be, now suppose the relatives say “well, we simply cannot afford without this help to keep them,” now what happens to the children?

You have to take them back and put them back in foster home?

Mr. Paul J. Bargiel: No, there are two things that can happen, Your Honor.

One of the things which has not been expressed to this point, but appears in the brief is that although we contend and I do feel, that foster parents are not the same as relatives and Congress would permit us to pay more money because they also, in the Social Security Act, appropriate more money for foster care.

The State of Illinois has a policy which is an exception to the rule whereby a related person who cares for a child who proves that he or who can prove that he has need of money in order to continue to care for that child can receive up to the full amount of foster care.

That is, the child --

Unknown Speaker: (Inaudible)

Mr. Paul J. Bargiel: Well, these plaintiffs in this particular case, as a matter of fact, they are receiving $105 payment.

It is true that when they brought this case, they were receiving $63 per month which was the AFDC provision.

They subsequently made application or they made application at some time.

Unknown Speaker: They are now getting -- these are the named plaintiffs?

Mr. Paul J. Bargiel: Yes, that is correct.

They are getting from the --

Unknown Speaker: They are getting the foster home payment?

Mr. Paul J. Bargiel: They are not getting the foster home payment.

They are getting $105.

Unknown Speaker: How does that compare to the foster home payment?

Mr. Paul J. Bargiel: It is the same thing as they are not -- Pardon?

Unknown Speaker: How and why are they getting it?

Mr. Paul J. Bargiel: Illinois -- Pardon?

Chief Justice Warren E. Burger: They have met the burden of showing that they needed it?

Mr. Paul J. Bargiel: That is right.

Illinois has a policy whereby a relative who cares for a needy and dependent child who can show that he has special need and requires more money can get more money up to the same amount that one would receive for foster care and if I am not mistaken, I was told by the chief counsel of the Illinois Department of Children and Family Services that this additional money, the difference between the $63 and $105 is not matched by federal funds, but comes from state funds.

Chief Justice Warren E. Burger: As I take it, your position is that the denial of equal protection arises out of the fact that the true foster care category gets the $105 without any showing and his clients have to make a showing of need to get the difference between $63 and $105, is that right?

Mr. Paul J. Bargiel: That very well may be.

Yes, I assume that is true, Your Honor, but if there is a fault --

Chief Justice Warren E. Burger: You would not have any other, the facts being what they are now, that they are receiving the full $105, he would not have any other basis, would he?

Mr. Paul J. Bargiel: I would agree.

I would think not, but I would say if there is a fault with it, in response to Your Honor’s question, in that position of my adversary, if there is a fault with it, then it is with the Social Security Act because the Social Security Act does not -- the aid to families with dependent children program, and the Three-Judge Court recognized this, does not consider the need of the parent in determining whether or not a child is eligible for aid.

Unknown Speaker: Well, of course, if your adversary is right that there is a conflict here, that your interpretation of the federal statute is inherent and that your obliged to pay under the federal statute, then instead of coming out of state funds the foster payment would in part at least come out of federal fund.

Mr. Paul J. Bargiel: I think that that is certainly true given that --

Unknown Speaker: Well, may I ask though, if they are in fact receiving it, does the state make any claim here if there is no controversy, at least as to these named plaintiffs and others, was it certified as a class action?

Mr. Paul J. Bargiel: Yes, it was certified.

The Three-Judge Court found that there was a proper class and that has not been contested.

Unknown Speaker: And yet all the named plaintiffs, you understand, are now receiving the full $105?

Mr. Paul J. Bargiel: That is correct.

Unknown Speaker: Well, as to them, is there still any controversy?

Mr. Paul J. Bargiel: As to the named plaintiffs?

Well, certainly not.

There is no controversy in the sense that they have anything to gain by this litigation personally.

Unknown Speaker: What about our Saldana (ph) decision?

Mr. Paul J. Bargiel: I am sorry, Your Honor, I am not --

Unknown Speaker: On whether or not there is still a class action for us to decide of all the named plaintiffs without a class?

Mr. Paul J. Bargiel: Now, I would -- I do not -- No, I am not sure whether I am familiar with that or not.

I would suggest that --

Justice Thurgood Marshall: Can you find out whether they are actually getting the money or not?

Mr. Paul J. Bargiel: Oh! I think that is clear.

There is no controversy as to whether or not they are getting the money.

I had submitted to the Court some Xerox materials a couple of months ago which indicate the named plaintiffs are receiving extra money and they have not contested that.

Justice Byron R. White: What if you won here, would they continue to get it?

Mr. Paul J. Bargiel: I think without question, Your Honor.

I do not think that -- I realize, of course, that they received the additional money after this litigation was started.

I frankly do not think that that had anything to do with their receiving the money.

As a matter of fact, there were affidavits filed in the lower Court which indicate --

Justice Byron R. White: In other words, the state is treating all the children living with relatives?

Mr. Paul J. Bargiel: According to an affidavit, which I believe was filed by one of the parties for plaintiffs’ counsel, there were 1,500 relatives who care for children who are related to them and of those 1,500, 140 are receiving the full amount pursuant to this exceptions policy which is about 10 of the entire class as designated by them of all these persons, and it is not clear that the entire 1,500 have asked for additional aid or attempted to show any need.

So, certainly, they are not the only --

Justice Byron R. White: But there are other members of the class, you can see there are other members of the designated class other than the named plaintiffs?

Mr. Paul J. Bargiel: Unquestionably, that is true, yes.

Chief Justice Warren E. Burger: These named plaintiffs are in a different position from the foster home people in that if the relatives cannot continue to maintain their showing of need, they might go back down to $63, hypothetically?

Mr. Paul J. Bargiel: That is conceivable, yes, it certainly is.

I would not --

Chief Justice Warren E. Burger: So there is a difference in the burden?

Mr. Paul J. Bargiel: I am sorry.

I am not sure I understand.

Chief Justice Warren E. Burger: There is difference in the burden in the sense that they must show a need, the relatives must show a need above $63?

Mr. Paul J. Bargiel: Unquestionably, I say that that is true, but again, let me direct myself to the question that Your Honor first asked.

I do not think there is any difficulty with that on an equal protection basis because the Federal Act, the Social Security Act itself does not require.

It has nothing to do with the need of the custodian who cares for the child.

It does not deal with that question at all under Section 606 or 608 or 607.

Eligibility is determined by the need of the child and under Section 608, it has to do with the home from which the child is removed. Under Section 608, an unrelated millionaire could take in a neglected child and that family would be eligible for AFDC, under Section 608 of the home from which the child was taken had been previously eligible.

What I am saying is that need is not provided for, at least need of the custodian in the Social Security Act and it seems to me that there would be no difficulty with the state saying “in order to qualify for additional benefits which are not yours to begin with, you must show a need as a custodian.”

I will attempt to finish up very quickly.

I would say here too that plaintiffs with regard to the equal protection argument that is raised, the plaintiffs ask the Court to consider the plight of relatives who live with people who are related to them who cannot afford to maintain those children if they do not receive the full foster care benefit.

On the other hand, I think that their argument ignores the fact that there are many neglected children in the State of Illinois and in every state that do not have relatives to take care of them.

There just are not any or there are relatives who do not consider or would not consider taking care of these children.

Now, it is quite clear, as Your Honor points out, that it has been traditionally true that people take care of their own and people take care of their kin and so on, if the State of Illinois is going to be deprived of money --

Chief Justice Warren E. Burger: I did not say they do so.

I said, is that not the tradition.

Mr. Paul J. Bargiel: Well, I think that that is the tradition or at least I think that it is fair to recognize that it is more likely to happen than it is in a case where there is no blood relation, but at any rate if what counsel suggests is to happen, then the State of Illinios will be deprived of funds.

Certainly, everything will not be raised to $105 benefit.

The amount of money is going to stay the same and that will be equalized probably somewhere between $63 and $105.

Unknown Speaker: Meaning, all foster homes will be getting something less than $105.

Mr. Paul J. Bargiel: Right, in all probability, that is what is going to occur and then, conceivably, relatives will be able to receive more money.

Justice Byron R. White: Does foster care not arise when the state has made the child a dependent of the state?

Mr. Paul J. Bargiel: Well, under the definition, a child would have to be removed from the home of a relative and adjudicated a ward of the state, yes, that is true.

The specific language is that he would have to be removed from the home of a relative pursuant to a judicial determination.

Justice Byron R. White: And you are saying and Illinois’ practice has been that even when that happens, when they remove the child from the home of a relative and then place the child with another relative, you have not treated that relative as a foster parent at all?

Mr. Paul J. Bargiel: That is precisely correct, Your Honor.

Chief Justice Warren E. Burger: What is the degree of relation?

Mr. Paul J. Bargiel: The degree is the same.

I believe the state statute is the same as the federal statute here.

I am quoting now from page 11 of our brief.

Section 606(a) says that the following relatives are eligible for assistance; that is father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or a niece, that is the federal statute.

Now, the state statute, the pertinent part is reproduced on page 13 of our brief and in footnote 2.

That specifies that the child or children must be living with grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, or other relative approved by the department.

So, it seems to me that there is a direct parallel between the state and federal law.

Justice Byron R. White: The federal law certainly would not require the state to pay foster care amounts to a mother?

Mr. Paul J. Bargiel: The federal law?

No, I agree with --

Justice Byron R. White: Or to a grandfather.

It would only be when the state adjudicates the person a foster child or makes him a dependent of the state?

Mr. Paul J. Bargiel: No.

Justice Byron R. White: Well, that is what the definition says that you read to us?

Mr. Paul J. Bargiel: I am sorry.

Maybe I misunderstand Your Honor’s question.

It says “the federal law defines in Section 608 -- 606 a certain class of relatives,” and as a matter of fact, Your Honors --

Justice Byron R. White: I understand that.

Mr. Paul J. Bargiel: Okay, and that class a relative includes father or mother.

Justice Byron R. White: I understand.

Mr. Paul J. Bargiel: And what I would suggest is that if a sister in this case, when you consider Section 606 and Section 608, if a sister can be a foster mother and her brothers and sisters can be foster children then there is no reason why you cannot ultimately get to a situation where you have a chain of events which leads a child back to his father or mother and have a natural father or mother being --

Justice Byron R. White: Do you understand your opponent’s position to be that the federal law requires foster care payments to relatives even though the state has not adjudicated the child and made it a dependent of the state?

Mr. Paul J. Bargiel: Oh! No, you have to have -- there I will agree with you.

Justice Byron R. White: So as long as the state does not and need not declare the child a foster child, it is only requirement is to pay AFDC?

Mr. Paul J. Bargiel: Yes, I certainly agree with that.

As long as that does not happen to the child who lives with a relative, that is true.

Justice Potter Stewart: But your point is that the ultimate extreme of your brother’s argument could be that a foster child, i.e. a child who had been made a ward of the state ends up in the home of his own mother or father and she gets not AFDC payments, but she gets paid as a foster parent.

Mr. Paul J. Bargiel: That is precisely correct.

That is the natural --

Justice Byron R. White: The only time that child is removed from the family is because for some reason.

Now, what reason would it be?

It would not be just to get more money.

It would be because the child is not being cared for properly.

Mr. Paul J. Bargiel: Well, Your Honor --

Justice Byron R. White: Now, the state is not about to put it back in that home that it has declared to be unfit?

Unknown Speaker: Not immediately.

Mr. Paul J. Bargiel: No, but it does --

Justice Byron R. White: No, not for a long time?

Mr. Paul J. Bargiel: It has an obligation to determine or to see that that home can be --

Justice Byron R. White: But it going to be another home, not that home, right?

Mr. Paul J. Bargiel: Certainly, at --

Justice Byron R. White: Or is not going to end up in a home from which he was removed?

Mr. Paul J. Bargiel: I think that it is conceivable that it ultimately could at some time in the future.

Pardon?

Unknown Speaker: If a mother is declared unfit or a father declared unfit, for that reason the child has been removed from their care, is it very likely that you are going to commit that child to that mother or father again?

Mr. Paul J. Bargiel: I do not know whether it is likely or not.

It certainly is conceivable.

The Act --

Unknown Speaker: (Inaudible)

Mr. Paul J. Bargiel: Your Honor, I do not know.

I am not an expert on -- I do not know what the statistical information is.

Thank you.

Chief Justice Warren E. Burger: Mr. Keenan, you have about six minutes left.

Rebuttal of Patrick A. Keenan

Mr. Patrick A. Keenan: Thank you.

Once again, Mr. Chief Justice and may it please the Court.

First, with respect to the suggestion of mootness, three of the four named minor plaintiffs began receiving the exception to policy payments which they considered to be foster care payments some 28 months after the suit was filed I believe.

As Mr. Justice Brennan said, the Saldana (ph) case, and I would also cite this Court’s recent opinion in Gerstein v. Pugh and the federal rule that says the state must apply to the District Court if it wishes to moot the case.

Second, with respect to the state’s contention that the plaintiff-related foster parents are not foster parents; first, I would cite to the District Court’s opinion where it named them, the District Court said that they were foster parents.

Second, citing this Court to the federal foster care blueprint, Section 408 of the Act, foster care payments can be made to children placed in the home of any individual.

Now, under this Court’s opinion in the Shay case, I think any means any and had Congress meant any individual to mean any individual other than relatives, it would have in Section -- if Congress had meant those payments to be denied relatives, it would have set out in Section 408, the enumerated relatives in Section 606(a).

It did not.

When Congress said foster care payments can be made to children who are wards of the state placed in the home of any individual, it meant precisely what it said.

The interpretation urged by the State of Illinois, I think, is a tortured one and I think the one urged by the plaintiffs is a simple one.

Congress examined children who had been removed from the home of their parents or a relatives, most usually their parents, and who were declared wards of the state, and it says and it recognized that those children were more expensive to care for and it further recognized in Section 401 of the Act that the best possible placement for those children was with a relative.

I think it is not relevant whether or not the child was removed from a home of its parents or from the home of his relatives.

I think with respect to the question -- let me go back to that.

I think it not relevant the nature whether or not he was removed from his parents or his relatives because he meets the criterion, the characteristics of need which the Congress declared in order to make him eligible for the categorical assistance payments under Section 408.

Justice Byron R. White: You concede that he certainly has to be removed from the home of a relative on the grounds that -- and be made a foster child?

Mr. Patrick A. Keenan: Absolutely, Your Honor, absolutely.

Justice Byron R. White: And the Social Security Act nor you can force that to be done except for a good cause?

Mr. Patrick A. Keenan: Only at the discretion of the State’s Attorney in Illinois and on the judgment of the Juvenile Court Judge, and the suggestion that foster care payments could go down, the plaintiffs simply do not understand.

I think this Court’s opinion or the decision in this case, one way or another, is not going to have any effect on the number of dependency and neglect petitions that are filed in Juvenile Courts in the State of Illinois, and those foster care payments are federally subsidized to the extent of $100.

I do not see how it is going to cost any more money one way or the other.

All that is going to happen is that these children will not be placed in the homes of strangers which the Congress disapproves, but they will be placed in foster homes maintained by their relatives, which would serve the purposes of the Act and it would serve the purposes of the state law to maintain and strengthen families.

Justice Byron R. White: Could I ask you before you are through, where the order certifying that class action is to be found, is it in --?

Mr. Patrick A. Keenan: Yes, Your Honor, it is at page 54 of the appendix which is the --

Justice Byron R. White: Okay, and there are members of that class still around even though the named plaintiffs may not have --?

Mr. Patrick A. Keenan: Yes, indeed, there are, Your Honor.

It is the plaintiffs’ position that a controversy exists, by the way, between them and the state.

Justice Byron R. White: Between the named plaintiffs and the state?

Mr. Patrick A. Keenan: Absolutely.

Justice Byron R. White: Still?

Mr. Patrick A. Keenan: Still, because the exception to policy payments are discretionary and can be withdrawn at any time.

Congress meant for those categorical assistance payments to be made because of the nature -- because of the characteristics of the child, that is, that he was removed from the home --

Justice Byron R. White: You suggest that if the state won it might terminate the stay?

Mr. Patrick A. Keenan: It could tomorrow, yes.

With respect, finally, to the Chief Justice’s question about the tradition; it is true that traditionally relatives take care of their own, but a lot of traditions in this country were changed in the 30s when the Social Security Act was passed and they have been continually changed in light of the economic realities.

I think Congress recognized those realities when it said that any child who was removed from the home in which he was living and declared to be a ward of the state has a right to categorical assistance payments under the foster care scheme.

The District Court found that the named plaintiffs are such children.

This Court should recognize that they are such children and it should secure them the rights and the eligibility for those foster care payments.

It should do so because -- the plaintiffs respectfully urge it should so because that is required by the Social Security Act, by the policy of the federal and state law, and by the Equal Protection Clause.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you, Gentlemen.

The case is submitted.