# Damico v. California/Dissent Harlan

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* Case Syllabus
* Per Curiam Opinion of the Court
* Dissenting Opinion Harlan
United States Supreme Court
389 U.S. 416
Damico v. California
Argued: Dec. 18, 1967. ---
Mr. Justice HARLAN, dissenting.
California's Aid to Families with Dependent Children program provides welfare assistance to mothers and children rendered destitute through desertion by or separation from the fathers of the children. The law requires that, unless a suit for divorce has been filed, the desertion or separation be of at least three months' duration before AFDC aid will be granted.
Appellants were informed by a social worker that, no suit for divorce having been filed, they could not receive AFDC aid before the end of the three-month period; they then brought this suit for a declaration that the three-month requirement violated the Federal Constitution. The District Court, without reaching the question whether it should 'abstain' pending appropriate state proceedings for relief, and without reaching the merits, dismissed on the ground that the plaintiffs had failed to exhaust 'adequate administrative remedies.'
This Court, without plenary consideration and without stating its reasons, now reverses the District Court's dismissal, citing McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622. In McNeese, the Court held that Negro students, seeking relief from alleged school racial segregation, did not have to pursue and exhaust certain administrative remedies available under state law before bringing their federal action. Although I did not at the time and do not now fully understand the Court's opinion in McNeese, the net result of the case as I see it was that the right to assert, in a federal court, that state officials had acted in a manner depriving the plaintiff of clear constitutional rights could not be delayed by the interposition of intentionally or unintentionally inadequate state remedies for the alleged discrimination.
If that is a correct description of the exhaustion problem in McNeese, it bears little relation to the exhaustion question here. State AFDC relief was created pursuant to the provisions of the federal Social Security Act, 49 Stat. 627, 42 U.S.C. § 601 et seq. The Federal Government pays the major share of the cost of state aid, see 42 U.S.C. § 603, and in return closely supervises both how it shall be administered and what remedies shall be available to those who have complaints about its operation. Each State receiving federal assistance (which includes California) must formulate and submit to the Secretary of Health, Education, and Welfare, for his approval, a plan of operation of its AFDC program. 42 U.S.C. § 602. In particular, the plan must provide that 'aid to families with dependent children * * * shall be furnished with reasonable promptness to all eligible individuals,' 42 U.S.C. § 602(a)(9), and must 'provide for granting * * * a fair hearing before the State agency (whose creation is required by a separate provision, 42 U.S.C. § 602(a)(3)) to any individual whose claim for aid to families with dependent children is denied or is not acted upon with reasonable promptness.' 42 U.S.C. § 602(a)(4). The California plan approved by the Secretary apparently includes both California's three-month requirement and California's hearing procedure.
The Court simply ignores the highly successful federal-state working relationship created by Congress in this area. The right of these appellants to receive AFDC funds involves not only questions of state law, but also the propriety of that law under federal statutory law. For the determination of these questions Congress has specified a state forum in the first instance. Today's holding, made without benefit of briefs and oral argument and on a skimpy record, that 42 U.S.C. § 1983 may be used to bypass 42 U.S.C. § 602 is a disservice to both of these important statutes.
I would affirm the judgment below.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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