Warren E. Burger: We'll hear arguments first this morning in 73-1016, Lascaris against Shirley and 73-1095, Lavine against Shirley, consolidated. Mr. Rubenstein, you may proceed whenever you're ready.
Alan W. Rubenstein: Thank you. Mr. Chief Justice, may it please the Court. These are consolidated appeals which present fundamental issues basic to the Aid For Dependent Children's Program. Broadly stated, the issue is kind of parent or caretaker relative refused to cooperate and state efforts to obtain support for a child from its father where that child is receiving AFDC benefits. And the further question is, can that parent still claim benefits as a parent or relative upon her refusal to so cooperate. The decisions of the lower courts starting with Doe against Shapiro of Connecticut Federal District Court case in 1969 have consistency held that where a mother and child had been denied assistance by states or the mother's failure to cooperate, assistance may not be terminated to the mother and child. This Court in three summary affirmances affirmed to the principle enunciated in Doe against Shapiro, that early case. These are Doe against Swank, Meyers against Juras, and Taylor against Martin. Of course the summary affirmances didn't deal explicitly with anything, they were just that and I didn't mean to convey anything else. State attempts to discontinue grants of the mother only were invalidated by federal courts in Connecticut in Doe against Harder, the successor to Doe against Shapiro in which the State of Connecticut had amended its regulation to cutoff benefits to the mother only. Commissioner Hardy was held in contempt. He appealed to this Court but pending appeal he was purged of contempt by changing the regulation and this Court had dismissed that appeal for one of jurisdiction. It had dismissed that the appeal in Doe against Shapiro, the earlier case for late docketing with two justices dissenting. Also, other courts in Pennsylvania, Iowa, and New York have followed the lead of the Harder Court and held that assistance may not be denied to the mother for her failure to cooperate in stayed efforts to establish paternity or to secure a support for her child. The result of these decisions halting state efforts to terminate the grant of the mother for her failure to cooperate has been that the state has been unable to comply with the provisions of the Social Security Act. That the intent of Congress to require such parental cooperation has been frustrated that the AFDC system has been turned upside down, putting the mother in the driver seat rather than the state agency. The people who should contribute to AFDC support thereby reducing need are not contributing. And that the ancient duty of parents to support their children has been shifted to the states and to the local Social Services Districts contrary to the provisions of the Social Security Act. Now, New York's interest in this litigation and that of its Social Services District is legitimate and substantial. The place of residence of AFDC fathers in New York State is unknown to the caseworker. It is believed in something over 50% of the cases. It is anticipated that the state locals and the local shares combined for fiscal year 1974 under the matching formula, for AFDC, will amount to something more than $700 million in New York State. And we submit that the state should have every opportunity to reduce what is becoming a staggering cause and has been has been staggering cause for a number of years by pursuing every avenue open to them to require these fathers to contribute to the support of their children. Now, as originally instituted, this case involved claims of the mothers that the county agency had required them to cooperate in instituting and prosecuting non-support proceedings under a state departmental regulation requiring that they furnish pertinent information in the location and prosecution of a deserting or abandoning parent, that the non-cooperative parent was ineligible for public assistance. But that the grants for her children were continued. It was only the mother who was discontinued. While an appeal was pending to this Court from the order of the -- on the original hearing which declared the state regulation violative of the Social Security Act to the extent that it requires parents or relatives to institute and prosecute nonsupport actions. New York Social Services Law, Section 101-a was amended to insert therein a new Subdivision 2 and 3. Now, these require that a recipient of public assistance, it's not limited in its application, only to Aid to Families with Dependent Children. It's a statute of general application, but obviously in this case, we're talking about Aid to Families with Dependent Children. The statute requires that a recipient of public assistance cooperate with a Social Services official in obtaining support or support contributions from the other parent by furnishing of the Social Services official with appropriate information including the location of the other parent or spouse. By filing a petition and furnishing evidence in a proceeding for paternity and support or for nonsupport. But if the applicant fails to file the petition, nothing happens except that the Social Services official is required to do so. Then, if the applicant fails to furnish evidence necessary to support a petition for paternity and support or for nonsupport in a marital situation or if the person fails to furnish information relative to the location of the other parent, her maintenance can be discontinued for her willful failure to do so, so long as she fails to assist and cooperate as required by the statute and only so long as she fails to assist and cooperate. The children's grant continues. Now, because of the amendment to Social Services Law, Section 101-a, this Court remanded for further consideration. And after remand, the original plaintiff's below moved to reconvene the three-judge court to amend the complaint and for intervention by an unwed mother. There had been no unwed mothers in the case before that time. The three-judge court permitted intervention and amendment of the complaint. The amended complaint however, dealt only with the claim of the intervener, unwed mother who had refused to tell a Social Services official where the known father of one of her children was within a geographical area. They knew who he was. She had told them that but she just said, “I won't tell you where he is in this town in Western New York.” And the amended complaint, I have to talk about this just for a moment, did not state a claim for the original plaintiffs. And since the court had remanded, we were not frankly sure whether this Court would still consider the original plaintiffs to be viable appellees on this appeal. In any event, it appears that the intervener is an automatic appellee here and counsel is quite correctly included her in the title of his papers as an intervener appellee. But we did not amend the title of the action because the court below didn't and we -- this is a matter which we must leave entirely to the court of course. The three-judge court after the remand in its memorandum decision and order declared Section 101-a as amended of the New York Social Services Law void, unenforceable and without effect insofar as it makes recipient cooperation in a paternity or support action against an absent parent, a condition of eligibility in AFDC. And the court below enjoined the defendants in that case, the state and county officers from terminating assistance to the intervener or her minor children for failure to cooperate in obtaining support. The order on its second argument did not act upon the original plaintiffs at all. Now, if the original plaintiffs for whom those claim was stated in the amended complaint which was actually an intervener's complaint we plead, deemed by the court to still be in the case, the question presented is whether an AFDC, a parent or caretaker must assist or cooperate in a nonsupport proceeding instituted by a Social Services official. As to the intervener, the question presented is whether she may be required to furnish the location of the father of one of her children to the Social Services official. And as I say, prior to the intervention of this unwed mother, we had no paternity aspect to this case whatsoever. But as it stands before the Court now, it has both nonsupport and paternity support aspects depending upon the Court's construction of its own remand. Now, we contend that the New York statue furthers the provisions of the Social Security Act, simple as that. The appellees contend that the statute creates a condition of eligibility not provided for in the Social Security Act. And so that, we answer we don't think it does. But even if it does, the Social Security Act not only allows for state efforts to abstain support and establish paternity but require such action. And that the statute is within the legitimate sphere of state administration and is necessary to the proper administration of the AFDC program. The state statute does not violate any specific provision of the Social Security Act or rather as friendly too and furthers the provisions of the Act. This Court discussed the statutes, the provisions in the Social Security Act that are involved on this appeal and its decision in King against Smith when it was in connection of course with the Alabama Man-in-the-House-Rule. The court set out these statutes, federal statutes to which I'll allude in a moment, and said, the pattern -- this is a 392 U.S. 332, the pattern of this legislation could not be clearer. Every effort is to be made to locate and secure support payments from persons legally obligated to support a deserted child. And later on in the same page, the provision seeks to secure parental support in lieu of AFDC support for dependent children. That is exactly what New York is trying to do. New York Social Services Law, Section 101-a, 2 and 3 implements the provisions of the Section 402 (a), 17 of the Social Security Act. It implements the provisions of such in 402 (a) (7) of the Social Security Act. Section 402 (a) (17) requires -- I'm reading from page 46 of my appellant brief, the appendix, that a state plan must provide for the development and implementation of a program under which the state agency will undertake one, in the case of a child born out of wedlock who is receiving aid to families with dependent children to establish the paternity of such child and secures support from him. And two, in the case of any child receiving such aid who has been deserted or abandoned by his parent to secure support for such a child, from such a parent or from any other person legally liable for such support utilizing any (Inaudible) code. Agreements adopted with other states to obtain and/or enforce court orders for support. And Section 7, 402 (a) (7) provides that the state in determining need shall take into consideration any other income and resources of any child or relative claiming Aid to Families with Dependent Children. Now, subsequent in --
Byron R. White: Well, could you -- could New York disqualify the child for this reason?
Alan W. Rubenstein: No. The statute does not provide for that sir.
Byron R. White: You mean, your statute?
Alan W. Rubenstein: That's right.
Byron R. White: But what if it did, could it -- would that pass (Inaudible)?
Alan W. Rubenstein: Well, I think we'd have a difficult time establishing that.
Byron R. White: Well, if it -- wouldn't you run into the cases, let's say that a state can't establish any additional qualifications?
Alan W. Rubenstein: Well, we've run it. Perhaps we --
Byron R. White: At least for the child.
Alan W. Rubenstein: At least for the child. The child is not really involved and of course the statute says, “In the case of a child born out of wedlock who is receiving assistance.” So, I wouldn't care to speculate if Your Honor will permit. I assume --
Byron R. White: How do you handle the cases? Let's say the states may not establish additional requirements for eligibility?
Alan W. Rubenstein: Well, this Court in Dubino and in Townsend against Swank laid down various ground rules, if the statute is within the legitimate sphere of state administration as long as it doesn't conflict with any substantial provision of the Social Security Act, the state's provision is all right. If it doesn't -- and that isn't that basically it Mr. Justice White? This is an area where the statute expressly provides that a state shall have a program for determining the paternity of children in getting their support.
Byron R. White: So, you're saying that the condition of the state law is either expressly or impliedly found in the Social Security Act?
Alan W. Rubenstein: Absolutely. Its -- we'd say we're authorized to do it and we're required to do it.
Warren E. Burger: Are you suggesting that this is comparable to a state provision that if employment is offered, which does not interfere with a child care, that the mother must take the employment in order to continue her benefits, not the child's benefits?
Alan W. Rubenstein: Well, it's -- so long that same general line of reasoning that that a person as this Court said in Wyman against James, a person should not be able to get ADC on her own informational terms. And that I think is what we're talking about, this woman --
Warren E. Burger: Is that the one why she refused the interview?
Alan W. Rubenstein: The home visitation, yes sir. And that I think is where we're at. The statute provides that we have to have this program for developing and implementing a program to get this support and to establish paternity. And the woman -- what happens is the woman balks and won't give you the information. Now, she is the only one who has this information and certainly in paternity cases, it's very difficult to establish paternity by any testimony other than a woman by any evidence or the more that she might give. And it's very difficult if the father has runoff as it has happened in so many ADC cases to locate -- to obtain support unless the mother will cooperate new efforts to do so. And this -- it seems to us is the same type of situation as it -- we -- as the Court run into in Wyman against James. And Wyman against James has been troubled many courts because it went on constitutional ground. It went on the Fourth Amendment grounds. There have been a substantial number of cases in this area of nonsupport. And Wyman against James went on constitutional grounds and it wasn't until the Court's decision in Dublino that the Court said that that type of activity was within a legitimate sphere of state administration and had the courts known -- the lower federal courts known at the time that they were deciding this case, that the court was ready to say that in Dublino. Perhaps, the decisions would be wrong. We're in a difficult situation. We come in here with a -- status in the case law based upon this Doe against Shapiro concept, that this Court has never been adopted -- has never adopted that the only conditions of eligibility or need in dependency. We come in with a series of cases where the judges have been troubled by Wyman against James by the court's holding. And the -- Judge Claire in Doe against Shapiro was troubled by it. He thought it was square authority for discontinuance of the mother and the child. And Judge Markowitz, I think in Doe against Swank was troubled with it. And Judge Mitchum in Zayas v. Hernandez, the only case of the federal level that I know of that went with us it was troubled by. And that case was vacated and remanded on appeal because the appellate court held there should be a three-judge court and on remand they followed this Court's affirmances in Taylor against Martin, Myers against Juras and alike. And they held the states couldn't do it. And this has been a constant source in the New York case of Lascaris v. Wyman in 67 Miscellaneous, a very early case involving a completely different factual situation. The court held that Doe -- disagreed with Doe against Shapiro and followed the teaching of Wyman against James that this type of activity was permissible. And the only other case that I know of that I haven't cited because I haven't been able to find it, it's the State of Washington case cited in paragraph 1240 of the Commerce Clearing House Poverty, the reports, a superior court case in King's County, Doe against Smith back in 1970 which was on our side of defense. And we -- but our point is sir, that the statute is clear, that the states have to do something about this problem of illegitimacy and about this problem of nonsupport.
Warren E. Burger: You said its 700 and some million dollars a year that's --
Alan W. Rubenstein: Well, it's estimated that the State Department of Social Service estimates that its -- that the cost -- I have to say that the AFDC program is not budgeted in the New York State budget as a separate public assistant items. New York is -- other public assistance program and there's a total budget for the program as I understand it. But the department estimates that the cost to the State of New York during fiscal year 1974 and 75 will be $358 million. Now, the cost of that is doubled because the local shares are equal to the state shares. So, the counties and the cities pay another $358 million. It's an awful lot of money. And New York is -- back in 1972 added this Section 101-a to attempt -- to plead that the memorandum and support of it, its attached to the appendix B of my brief and on the premise that federal law permitted it, permitted this type of action.
Potter Stewart: How many other states have an analogue to 101-a?
Alan W. Rubenstein: Oh, I don't know if I can answer that.
Potter Stewart: Well, I don't care about precisely but do -- the most of them or do --
Alan W. Rubenstein: Well, there has been Iowa --
Potter Stewart: -- (Voice Overlap) of them or what?
Alan W. Rubenstein: Well, 101-a, all that I know about is Connecticut, Pennsylvania, Iowa, New York and there was a recent case out in Utah, Rose against Pampton (ph) I believe in June of 1974 which I just found the other day. And those are the only ones I know about. And Rose against Pampton has followed the teaching of the Shirley Court, we can do this. And we take the -- we believe that the Social Security Act specifically gives us authority to do it. Now, the Federal Secretary of Health, Education and Welfare has filed a regulation supporting our right to do these which is cited in our brief.
Potter Stewart: That was done after you did it, wouldn't it?
Alan W. Rubenstein: That was done pendente lite after the first -- after the court's remand.
Potter Stewart: And that's your behest?
Alan W. Rubenstein: No.
Potter Stewart: Not yours personally but at the Commissioner's behest, wouldn't it?
Alan W. Rubenstein: Let me say this. Ore -- I believe that Oregon filed in objection. Of course there was proposed rule making as in every case and a notice. And the State of New York filed objections. Iowa filed objections and I believe Oregon filed objections, maybe California. As to what happened up in -- there've been representations in the briefs that we requested this. I don't think I have any right to talk about that because I wasn't purveyed to those conversations. Of course the states deal with the administrators all the time. And I wouldn't -- I think that's an unfortunate characterization in counsel's brief. But I don't think I could comment on it. Have I answered your question sir?
Potter Stewart: Or at least you explained why you couldn't answer it.
Alan W. Rubenstein: Well, now, the federal stat -- we think the federal statutes and regulations and the state statute, a recognition of the basic and primary duty of the parent's duty to support his child. And we think what's wrong with the whole picture is that when you don't give recognition to that duty, it turns the situation around. So, that the state is required to support the child and determine its support when the parent should be doing. So, we don't think that Congress has ever expressed an intent that this should happen. And we think that the statute itself is evidenced that the intent was that to a contrary.
Byron R. White: How long with this study you are following?
Alan W. Rubenstein: Well, the regulation -- I don't know when that was adopted. The statute was adopted in 1972. It was enacted in 72, the one that we're upon now.
Byron R. White: And prior to that?
Alan W. Rubenstein: It would have been sometime after 1970 Your Honor.
Byron R. White: Well, you didn't impose this condition prior to 1970 or 72?
Alan W. Rubenstein: I do not -- It was in a state regulation but I do not believe there was any provision in the state regulation to impose such a condition prior to Lascaris against Wyman in 67 Miscellaneous.
Byron R. White: Was that -- was this state condition or policy contrary to HEW regulations prior to the amendment of the HEW regulation?
Alan W. Rubenstein: HEW have taken the position that -- had spoken to the provisions of 402 (a) (11), the NOLEO requirement, the Notice to Law Enforcement Offices requirement. And it had taken the position there that it advise the states against establishing support requiring cooperation as a condition because of the wording of the statute that a child has received ADC but it did not. I believe its part of 8149 of the handbook. It did not say, “You can't do it,” it just advised against it. But I should mention that these provisions were held in the Doe against Shapiro to have been superseded by the provisions of 602 (a) -- 402 (a) (17) enacted in the 1917. And I don't believe that the Secretary had spoken to that provision prior to --
Byron R. White: The amendment of his regulation?
Alan W. Rubenstein: His -- amendment of his regulation. There had been two regulations, part 220 I believe, point 48 relating to the establishment of paternity which was recently revised in July of 1974 in the Federal Register.
Byron R. White: So, under the new regulations, New York's regulation is permissible?
Alan W. Rubenstein: Yes.
Byron R. White: And yet the district judge held it and I guess it was held, wasn't it, invalid?
Alan W. Rubenstein: Yes, he did.
Byron R. White: Because it was inconsistent with the statute. I have nothing here from HEW, from the Government except urging us to take the case at the time when the appeals were filed. Not -- they haven't given us anything else, have they?
Alan W. Rubenstein: No, I don't believe they have.
Byron R. White: And they haven't addressed this holding, that the amendment was invalid?
Alan W. Rubenstein: Well, other than in there, we found the jurisdictional question. I haven't seen anything from them. Now, -- and by the way, I should tell the Court that the provisions of the state law, I'm relating to the NOLEO provision, 602 (a) (11) -- 402 (a) (11), I have found in Social Services Law 111, 352, and 325 (a) and 372 (a) also have some involvement as to part 347 of the State Department of Regulations.
Warren E. Burger: You're' now using whatever time -- you may wonder as reserved for rebuttal.
Alan W. Rubenstein: Well, in that case I think I'll have to stop and just say to the Court that we don't think that a statute was ever intended to enable this woman to come in on her own terms and get assistance, that she has a duty to help us determine the resources, the Congress has always spoken in terms of support as a resources in our brief. And there's only one other word that I want to throw out as I was reading my brief last night, talking about the legislative history of 602 (a) (17). I've found I was reading about two separate but very similar Bills that were before the Congress and I hadn't realized that. And I want the Court to know that. Thank you. I'll reserve if i may.
Warren E. Burger: Mr. Eldridge.
William J. Brennan, Jr.: Mr. Eldridge, this might be premature but I hope that some point in your argument you may say something about whether if this HEW Amendment were valid or whether you have any case?
Douglas A. Eldridge: There are two HEW regulations Mr. Justice Brennan.
William J. Brennan, Jr.: Well, I'm thinking of the one that --
Douglas A. Eldridge: That coexist at this point.
William J. Brennan, Jr.: Yeah.
Douglas A. Eldridge: This latest regulation which is 233.90 (b) (4) I believe.
William J. Brennan, Jr.: (Voice Overlap), these numbers get me all confused. 233.90 is the one that was adopted on May 3, 1973, is that it?
Douglas A. Eldridge: That's correct.
Potter Stewart: Where in these papers could we find it?
Douglas A. Eldridge: Page 28 of the jurisdictional statement in the Lavine case.
Potter Stewart: Thank you.
Byron R. White: 1095.
Douglas A. Eldridge: That purports to allow a state to exclude a mother if she fails to cooperate in the prosecution.
William J. Brennan, Jr.: And that may be denied for the uncooperative care (Voice Overlap) --
Douglas A. Eldridge: That's correct.
William J. Brennan, Jr.: Yeah.
Douglas A. Eldridge: They coexist with that regulation, in other regulation of HEW, 233.90, is that it?
Potter Stewart: Where can we find that one?
Douglas A. Eldridge: Okay.
William J. Brennan, Jr.: Well, I thought this amendment was an amendment to 233.90?
Douglas A. Eldridge: 235.70 which still exist. That's referred to in my brief at -- in my brief at page two and page 21. I don't believe that it is fully set out there however.
Potter Stewart: If it's set out in this jurisdictional statement on behalf of appellant Lavine on page 28 under B.It says Section 233.90 is amended by adding the paragraph B, a new sub-paragraph 4 as set forth below and B, is that it?
Douglas A. Eldridge: Let's see.
Potter Stewart: Take your time. I know it's --
Douglas A. Eldridge: Page 3, is that --?
Potter Stewart: No, page 28.
Douglas A. Eldridge: Of the jurisdiction?
Potter Stewart: On the jurisdictional statement on the part of Lavine, go down toward the bottom of the page in the smaller print. It says, “Section 233.90 is amended by adding to paragraph B, a new sub-paragraph 4 as set forth below. Is that what you're talking about?
Douglas A. Eldridge: Yes. That is the change of 235.
Potter Stewart: It says, a child may not be denied AFDC either initially or subsequently? And moving over to -- and then it says, for a child may not be denied AFDC either initially or subsequently? I'm on page 29 now.
Douglas A. Eldridge: All right.
Potter Stewart: Because a parent or caretaker or relative fails to assist in the establishment of paternity of a child born out of wedlock or in seeking support from a person having a legal duty to support the child. Is that what you're talking about?
Douglas A. Eldridge: Nonetheless, there still exist 235.
Potter Stewart: I know.
Douglas A. Eldridge: Which says that it is not legal.
Potter Stewart: I know. So, how do we -- what do we do (Voice Overlap) --
Douglas A. Eldridge: Well, I submit to you that HEW in promulgating this regulation did so without the authority of the Congress. I think the intent of Congress --
Potter Stewart: Well, do you mean in both regulations?
Douglas A. Eldridge: The first regulation. Perhaps we can deal within subject matter terms. It said that you cannot cutoff a parent or a child. It is not a condition of eligibility for AFDC.
William J. Brennan, Jr.: That was the original 233.90.
Douglas A. Eldridge: That has been the view of HEW since 1951 when this amendment first started.
William J. Brennan, Jr.: (Voice Overlap) amendment, it wasn't in that regulation, was it?
Douglas A. Eldridge: There was no condition of eligibility ever in a regulation of HEW until 1973.
William J. Brennan, Jr.: I see, until this amendment?
Douglas A. Eldridge: That's correct. Now, this amendment came sua sponte from the HEW segment. It did not come from any --
Potter Stewart: Which amendment are you talking about? This is very confusing because there are too inconsistent (Voice Overlap) --
Douglas A. Eldridge: That the latest amendment. The 1973 Amendment which purported --
Potter Stewart: What number is that?
Douglas A. Eldridge: That is 233.90 before.
Potter Stewart: I have just read part of --
Douglas A. Eldridge: That's correct, that's correct. 233.90 purported to allow a condition of eligibility.
Byron R. White: For its parent, for the parent?
Douglas A. Eldridge: For the parent only.
Byron R. White: Not for the child?
Douglas A. Eldridge: Not for the child. But it did so without any congressional encouragement to do that. There had been no legislation past.
William H. Rehnquist: Isn't that true of all regulations? I mean they're made by the agency not by Congress.
Douglas A. Eldridge: I believe that's correct Mr. Justice Rehnquist but they have authority only if they comport with the intentions of Congress.
William H. Rehnquist: And what about as expressed in the statutes?
Douglas A. Eldridge: As expressed in the statutes and in this -- in the Social Security Act, there is an extensive scheme, the NOLEO scheme set out to achieve support for AFDC children and parents. But in that scheme, there is no condition of eligibility.
Byron R. White: Well, what about Justice Brennan's question, let's assume this regulation is valid?
William J. Brennan, Jr.: The Amendment?
Douglas A. Eldridge: The amendment -- The one --
William J. Brennan, Jr.: 1973 Amendment. The B 4 that we've just referred to.
Potter Stewart: Right.
Byron R. White: Suppose that is -- let's assume that's valid.
Douglas A. Eldridge: Then there is a constitutional question that an equal protection problem -- it has not been dealt with in any of these cases here before because of the court's teachings.
Byron R. White: But the issue here then would be decided against it, the statutory issue.
Douglas A. Eldridge: I don't believe there is support in the statute to decide it against me. If you decided that the regulation was proper that it reflected the intent of Congress then you could carve an exception to the Townsend versus Swank approach that need independency or the conditions of eligibility because you would have found --
Byron R. White: What problem -- I know but if that's an exception. But assuming that regulation is valid, the statutory issue would be the decided against you, I take it.
Douglas A. Eldridge: The statutory issue would then -- what would remain would be the constitutional issue with the equal protection.
Byron R. White: And so if the case does post the validity of this regulation?
Douglas A. Eldridge: Yes, it does.
Byron R. White: Squarely.
Douglas A. Eldridge: Yes, it does.
William J. Brennan, Jr.: And as a matter of fact, I expect it does although the Government is not represented here in light of the holding of the District Court that the Amendment was invalid.
Douglas A. Eldridge: The District Court said that the Amendment was not a guide post to be followed judicially, that's correct.
William J. Brennan, Jr.: Well, I thought it went beyond that. It said, “Its -- absolutely the Department's new interpretations certainly may not be terms subtle or consistent nor may it be said that the agency was never of a contrary opinion.” And it goes on and says, “The broken line of court decisions construing these provisions in the absence of any congressional corrective action persuade us that the agency's new interpretation is an error and not a guide post to be followed seriously.
Douglas A. Eldridge: Yes.
William J. Brennan, Jr.: Isn't that a holding that it's invalid?
Douglas A. Eldridge: I believe it is, yes.
William J. Brennan, Jr.: Because it's not a -- well, it affects -- as the statute does not otherwise permit a condition of eligibility.
Douglas A. Eldridge: That's correct. And that --
William J. Brennan, Jr.: But we have to reach it although the Government is not here.
Douglas A. Eldridge: Well, the -- they were invited by this Court to speak to the issue they presented on brief.
William J. Brennan, Jr.: Well, they -- all they did was say we ought to hear the case. They didn't came in on -- they never came in on the merits. At least I have nothing here on that.
Douglas A. Eldridge: I can't explain their absence Mr. Justice Brennan. As we concede though that the law has been settled. There are 20 Federal District Courts that have decided on this statutory ground. There are three affirmances of this Court. I think to paraphrase Justice Brandeis not only as the law is settled that is settled direct --
Warren E. Burger: Did they all relate to taking the support away from the mother or the child?
Douglas A. Eldridge: They initially -- Oh, actually each one of them varied. They were different ambiances to each one. I think the issue is really the same. I think the distinction between taking --
Warren E. Burger: The cases were not the same issue as we got presented here though, were they?
Douglas A. Eldridge: Well, in the three affirmances of this Court in Meyers v. Juras, the mother was -- I believe cut off. The mother and the children were terminated in Meyers versus Juras. In Taylor versus Martin, the child was ineligible. In Doe versus Swank, the mother was terminated. So, they vary. Now, they did not cut the mother in Doe versus Swank. They cut the child in Doe versus Swank. They cut the child in Doe versus Swank because the grandmother would not sue her daughter for nonsupport. The daughter was the mother of the child but the grandmother was the caretaker for her. So, we moved around in circles of consanguinity here. I would submit though Mr. Chief Justice that the distinction between terminating a mother and the child is really a Schmierer. What you have is a result of cutting anyone member of the unit as a net reduction in welfare. The mother is by the -- by terms of the AFDC statute, a caretaker in order for her to continue to take care if she has to maintain herself. In other words, she has to eat and she has to have a bed. And that money has to come from somewhere. And it is a ruse I think really to say that you have only cut her off when you have deprived the family of four of one quarter of their income.
Warren E. Burger: That was a -- that would also be true in the case where the mother was cut off for refusing to allow visitation, would it not?
Douglas A. Eldridge: Visitation, are you referring to Wyman versus James? Well, I'd --
Warren E. Burger: I'm referring to the general problem which Wyman v. James is just one example.
Douglas A. Eldridge: That is a very real aspect of the problems presented by Wyman versus James. On the other hand, Wyman versus James was decided by this Court before it affirmed Townsend versus Swank, Meyers versus Juras, and -- not Townsend versus Swank, Doe versus Swank, Meyers versus Juras, and Carlson versus Taylor. I think that Wyman versus James is a constitutional case. I don't think that it deals specifically with the question of whether there may be a condition of eligibility outside the Social Security Act. I think in fact, Mr. Justice Blackmun said that this was countenance within the Social Security Act. But the NOLEO scheme does not countenance the condition of eligibility. There is an extensive section of the Social Security Act starting in 602 (a) (7), it goes through Section 11 where the state is required to report a grant of assistance to families with abandoning parents to local law enforcement officers. That's the way it supposed to go. The report is supposed to go to the local law enforcement officers. The state is required to develop a program in Section 17 to establish paternity and to secure a support and that is not something that we grow with, we agree with the desirability of securing support. Or --
William J. Brennan, Jr.: And -- NOLEO mean, Notice to the Office of the Local Enforcement?
Douglas A. Eldridge: Notice to Law Enforcement Officers. The state is required to develop this program but it does not say that it is required or even allowed to establish a condition of eligible. It is suppose to establish a single unit in the state responsible for administering this program. Section 18 says, admonishes the states to cooperate, the state department and social services cooperate with the courts and law enforcement officials even to the point of entering into some sort of financial arrangement with the law enforcement officials. Section 21 requires reporting to HEW quarterly, the name, social security number, the last known address of abandoning parents with outstanding orders against them who were not paying. This allowed the use of the social security records to pursue these abandoning spouses, of fugitive fathers. Section 610 of the Social Security Act has IRS tracing abandoning relatives. Section 22 under 602 (a) requires cooperation with other states in locating the parents and enforcing new orders. But throughout all of that, there is no discussion of a condition of eligibility. And from the -- in very inception HEW has said that it was not a condition of eligibility. I refer you to the third section of my brief which deals with that extensively. But I think --
Warren E. Burger: That's a policy position of the Department --
Douglas A. Eldridge: I think it was policy position which was a lens to the congressional intent. I think they were following what Congress had indicated because they talked there Mr. Chief Justice in terms of social work acknowledging that this is a difficult time for a family when a spouse has abandoned. And they talked about the need to counsel mothers with abandoned children during such a stressful time in order to achieve what is best for the family. It may not be immediately best to sue an abandoning spouse. The effect of time often helps to heal these conditions.
William J. Brennan, Jr.: Mr. Eldridge, if this be a convenient time for you to summarize New York law with respect to the obligation of a father to support his children whether wed or unwed?
Douglas A. Eldridge: A father who is acknowledged to be the father of the child, a natural father, wed or unwed has the obligation to support his child until 21.
William J. Brennan, Jr.: Whether wed or unwed?
Douglas A. Eldridge: That's correct. A natural father has the obligation to support his children.
William J. Brennan, Jr.: Once he's identified as the father and there is a proceeding for identifying him as the father, i.e. a paternity proceeding?
Douglas A. Eldridge: That's correct Mr. Justice Stewart and that proceeding maybe brought by the Commissioner of Social Services for any county. It never was until this litigation began.
Warren E. Burger: But it's a little difficult to maintain that kind of litigation without the cooperation of the mother, is it not?
Douglas A. Eldridge: It may be, but --
Warren E. Burger: Maybe?
Douglas A. Eldridge: -- but by and large Mr. Chief Justice, people cooperate. We have an amicus here from California who ran the figures through. In California, the Department of Social Services because they have not followed previous orders of the court are now required to tell recipients specifically that they do not have to cooperate in this proceeding. And yet, in California, 50% of all the applicants for welfare do cooperate.
Warren E. Burger: Well, we're not concerned in this case, are we with cases -- situations where they cooperate. We're only concerned with -- one where they do not.
Douglas A. Eldridge: But the point -- the magnitude of the problem by and large people do cooperate and 67% of some counties in California, people do go along with us. Most people do go along with it and I submit the people that refuse, refuse for legitimate reasons. If we take the named plaintiffs in this case, Jane Doe refused to institute a paternity proceeding because she had already instituted a paternity proceeding. She instituted one in the fall of 1971 when she applied for welfare. In December of 1971, the Welfare Department said, “You have to sue again.” She said, “I already did.” They said, “We're not going to give your daughter in this case any public assistance until you sue.” They refused. They denied her public assistance until she brought another action notwithstanding the fact that there was a previous action existent in the family court in Onondaga County.
Harry A. Blackmun: May I ask Mr. Eldridge, is there any statutory amendment to which this regulation amendment is 73 is hooked?
Douglas A. Eldridge: The federal regulation?
Harry A. Blackmun: Yeah.
Douglas A. Eldridge: No.
Harry A. Blackmun: There is none. That's different, that's a distinction between this case and Dublino I gather?
Douglas A. Eldridge: That is exactly correct. In Dublino in 19 --
Harry A. Blackmun: Whether the WIN program, when the 1967 Amendment added a condition of eligibility.
Douglas A. Eldridge: In 1967, there were two amendments up for consideration. One was amendments to the NOLEO section which added four or five of the sections that I had adverted to in the NOLEO scheme and the WIN program. In WIN, they specifically said there shall be a condition of eligibility for non-cooperation in the WIN program. In the NOLEO section, they specifically left it out.
Byron R. White: But they did -- and that was when they did add the requirement that the states have a special unit to pursue the support obligations of parents?
Douglas A. Eldridge: That's correct.
Byron R. White: And required the states to have that kind of a scheme?
Douglas A. Eldridge: That is exactly right but they did not say that that scheme could encompass a condition of eligibility and there had been since 1951 a scheme which did not include conditions of eligibility.
Byron R. White: I gather that was the reasoning of the District Court?
Douglas A. Eldridge: I believe that that's why they granted no credence to the --
Byron R. White: Well, why they held that there was nothing comparable to the WIN edition of a condition of eligibility in regard to NOLEO?
Douglas A. Eldridge: That's correct and I think that that's why Dublino is not dispositive or is really relevant to this case. Dublino dealt with a specific allowance of a condition of eligibility, the work groups. The WIN program.
Byron R. White: Well I expect though we'll have to look at both the statute in the legislative history under the Townsend-Swank case. And determine for ourselves (Voice Overlap) --
Douglas A. Eldridge: I think that is exactly the test that should be supplied here. The third section of my brief indicates that the last brief I received from the appellant deals with what he calls legislative history. It deals with the Bill that's in the House in a conference. Now, I don't really think that that's fair to judge, but that Bill does specify a condition of eligibility. It says in the Senate Report to (Voice Overlap) --
William J. Brennan, Jr.: This is a pending Bill now?
Douglas A. Eldridge: This is a Bill that passed the Senate, passed the House --
William J. Brennan, Jr.: How long though?
Douglas A. Eldridge: HR 3153.
William J. Brennan, Jr.: How long it go?
Douglas A. Eldridge: It has been battled up in conference since 1972.
William J. Brennan, Jr.: How long (Voice Overlap) -- the House of Senate?
Douglas A. Eldridge: 1972 in October it passed the Senate in 1972, November it passed the House. It has been in conference since --
William J. Brennan, Jr.: And unless it comes out today, it'll laps, isn't it?
Douglas A. Eldridge: Its 1973, I'm sorry. Did I say 1972? 1973.
William J. Brennan, Jr.: And unless it comes out today I gather, it will relapse, would it?
Douglas A. Eldridge: I think it is dead really. But it did specifically set a condition of eligibility. And the Senate Report to accompany that. The report says at page 49 of the --
William J. Brennan, Jr.: Is that in your brief?
Douglas A. Eldridge: No, this is something that we've just adverted to by my opponent in his last brief.
William J. Brennan, Jr.: In the reply brief?
Douglas A. Eldridge: Yes. Its Senate Report 93553 to accompany HR 3153. At page 49, it said --
William O. Douglas: Isn't that the report down there, 93?
Douglas A. Eldridge: 553.
William O. Douglas: 553.
Douglas A. Eldridge: It says, “The Committee built, would make cooperation in identifying the absent parent a condition of AFDC eligibility.” It didn't say it would reaffirm a condition of eligibility. It didn't say it would make the condition of eligibility clearer. It says that they would make a condition of eligibility.
Warren E. Burger: The existence of that statute doesn't mean that the state didn't have the power previously?
Douglas A. Eldridge: I would submit in this --
Warren E. Burger: That is recently passed to clarify ambiguous situations.
Douglas A. Eldridge: The -- throughout the legislative history, they do not talk about the ambiguity of the situation, they talk about the fact that the states are not pursuing the remedies under the situation and they say that more -- that stronger legislation is required. That's exactly what they say in this report. And they say however, the committee feels that maybe desirable to offer a mother a financial incentive to cooperate. Now, there you have Congress talking about giving a financial incentive to cooperate.
Warren E. Burger: Isn't she being offered a -- in this case, isn't she offered a financial incentive?
Douglas A. Eldridge: They draw a distinction there. They say that you may keep as the WIN program does, as the work rules do. You may keep a greater portion of the support payment that you received. Right now, in New York if you get a support payment, the same amount is subtracted from your regular welfare balance. So, people who receive support and people who are receiving straight A, B, C without any support are at the same level. There is no financial incentive to pursue the support. Congress, I think has been very concerned throughout the history of the NOLEO question as to the level of effort being put in by the state. Again, in the Senate Report to accompany the HR 3153 at page 40, they say and I quote, “The enforcement of child support obligations is not an area of jurisprudence, about which this country can be proud.” They refer to the thousands of un-served and unsupported warrants. They say the blame must be shared by judges, prosecutors, and welfare officials alike.
Warren E. Burger: Well, is it possible that Congress is now considering action in order to force recalcitrant states and administrators to take steps, may --
Douglas A. Eldridge: Certainly, this --
Warren E. Burger: In other words, make it a condition of the grant?
Douglas A. Eldridge: Certainly, this was what was under consideration in 3153, as you say though, 3153 is probably dead as of Friday on Congress adjourns. They have been considering it and I would submit that this is a matter for congressional consideration. I do not think --
Warren E. Burger: But it isn't quite a different thing to make it a condition of a grant by the Federal Government to the state so that the matching grant and the states making it a condition to the non-cooperating parent?
Douglas A. Eldridge: Those are quite different things.
Warren E. Burger: Quite different things.
Douglas A. Eldridge: One requires the state to act, the other requires the parent to act.
Warren E. Burger: Yeah, that's right. So, that the reason for passing the legislation or if they do pass it or considering it is really doesn't have very much relevance it seems to me to what New York is doing with reference to the non-cooperating mothers here.
Douglas A. Eldridge: I think it has relevance and that it indicates that Congress had never countenance what New York is doing to non-cooperating relatives --
William J. Brennan, Jr.: As to condition of eligibility?
Douglas A. Eldridge: As a condition of eligibility.
William J. Brennan, Jr.: Which under Townsend-Swank, you suggest as the test?
Douglas A. Eldridge: Exactly the test that --
William J. Brennan, Jr.: And we can't find either in the legislation, in the act itself or in the legislative history that they did intend to authorized the states to attach this condition of eligibility. Townsend-Swank says the states can't do it.
Douglas A. Eldridge: That is correct Mr. Justice Brennan.
Warren E. Burger: And there --
Douglas A. Eldridge: It starts in King versus Smith that goes in Townsend v. Swank and it is reaffirmed in Carlson versus (Inaudible), all of which were unanimous opinions to this Court.
Warren E. Burger: And there are other --
Douglas A. Eldridge: That's the doctrine --
Warren E. Burger: -- cases which hold that if it isn't forbidden and there's a reasonable regulation, it's permissible, are they not?
Douglas A. Eldridge: Well, under Dublino, there was a discussion of what a reasonable regulation might be. They said that if there was a conflict of substance, its footnote 34 I believe in Dubrino. If there was a conflict of substance between the Social Security Act and the administrative regulation then, obviously this supremacy cause operated and the federal statute was supreme and the administrative regulation could not exist. I think anytime you have a condition of eligibility, that is a substantial conflict. A condition of eligibility not set forth as need and dependency or within the legislative history of the Social Security Act and that is what we have in this case. I would say that this is outside the legitimate sphere of administration. This goes beyond; this gets to the heart of who can get AFDC.
Warren E. Burger: But then if Congress passes this pending legislation that you've been talking about there probably would be a question raised by someone, sometime rather it is permissible for Congress to attach a condition to its grant of $358 million annually to the State of New York, that they've pursue --
Douglas A. Eldridge: But that's been the nature of categorical grants from their inception. Perhaps revenue sharing has changed the -- so that the approach --
Warren E. Burger: But if it is reasonable then there -- then perhaps there is no constitutional question.
Douglas A. Eldridge: That may be.
Warren E. Burger: But you -- I thought you would -- eventually conceded its reasonableness in terms of --
Douglas A. Eldridge: The reasonableness of what? I'm sorry, Mr. Chief Justice.
Warren E. Burger: Of the categorical grant by the Federal Government to the state.
Douglas A. Eldridge: There are lots of ways to examine the reasonableness in the instance of federal revenue sharing at this point. They aren't as reasonable as the categorical grants because there is less money in them for the states. I really -- I'm not supporting that at this point in this case. I think what we really have to talk to is statutory conflict here. Congress has been very upset as I was saying, about the state's efforts in this area. They say in the Bill -- in the Senate report to accompany HR1 which is namely 2-1230.
Byron R. White: What relevant is that HR1 and this Senate Report, well --
Douglas A. Eldridge: It's really not good legislative history because its not --
Byron R. White: Well, that's the law.
Douglas A. Eldridge: Its not legislation that ultimately passed, but they were upset -- they are again about the failure of the states to pursue support. The latest GAO survey indicated that 72% of people who had support orders against them entered by a court or who would agree to pay support, 72% of those parents were not in substantial compliance with the orders. I submit to you that that is the problem. But the problem is --
William H. Rehnquist: The part of it, you can't get blood out of a turnip, isn't it?
Douglas A. Eldridge: I tried to say that in a family court Mr. Justice Rehnquist and the response I have is that I do not see a turnip standing near in front of me Mr. Eldridge. I see a man and he's capable of going to work. Well certainly it's true in many cases, poor people don't have any money, or they don't have enough money to pay a support payment. All right, there are people in the other hand who do have an ability to pay and certainly they should be pursued and then made to pay their statutory obligation. I think that it may even go beyond the statutory obligation. The reason that the states I submit are so anxious and we have heard here from California, Iowa, as well as New York, there were 19 other states. One of the justices asked the question, “How many states had rules like this?” There have been 19 other states who had rules that were knocked down. I think the rest of the states are waiting for your action today to determine whether they're going to continue to enforce the rules.
Potter Stewart: Do you think the remainder of the states do have such rules?
Douglas A. Eldridge: I'm sure that not all of them do.
Potter Stewart: But might (Voice Overlap) --
Douglas A. Eldridge: I don't know. It has been a very prevalent practice of late.
Potter Stewart: The 19 of them so far have been invalidated of 19 separate states?
Douglas A. Eldridge: 19 separate states. There have been several regulations in several states and New York for instance in 1969, there was a regulation that was withdrawn.
Warren E. Burger: When you say invalidated, by three-judge courts or by --
Douglas A. Eldridge: Yes, they were all three-judge courts with the exception of one that Judge Gurfein in the Southern District throughout because he was going to do it on the statutory basis. He felt no need to convene three-judges.
Lewis F. Powell, Jr.: Mr. Eldridge.
Douglas A. Eldridge: Yes, Mr. Justice Powell.
Lewis F. Powell, Jr.: The memorandum filed by the Solicitor General on page 4 states that the -- that HEW has advised us that 10 states which include Iowa and New York containing more that one-third of AFDC recipients require such parental cooperation's and conditions of eligibility.
Douglas A. Eldridge: That must be accurate for that time, but over the past since 1969 when Doe v. Shapiro was brought, there have been 19 states that have -- had their regulations thrown out by Federal District Courts. Three states having their regulations thrown out by this Court. And I submit that they were all the same essential regulation, they required an illegal condition of eligibility for AFDC. Thank you Your Honors.
Warren E. Burger: Thank you Mr. Eldridge. I think you have used your time -- no, you have about one minute left.
Alan W. Rubenstein: I'll just say Your Honor that (Inaudible) carried an item that the Committee on Finance had approved a new Bill on this subject of HR31-53, which had been in conference. I do not know where it's going. I haven't that time to check it, but I give that to the Court. I call the Court's attention to Wyman against James and Carlson against Walgamuth (ph)where the court approved situations where the grant -- the entire family was cut off of favor to give a lien or cooperate. Giving the -- a grant to the mother in 1950 did not intended to accomplish an equitable result. There's no question about that and that's when she was included.
Harry A. Blackmun: Tell me this new bill passes.
Alan W. Rubenstein: Pardon me sir?
Harry A. Blackmun: If this new bill passes and at least the -- on the face of it, that would make New York's regulation valid? Has -- have these mothers been paid up to date in -- because they won below?
Alan W. Rubenstein: Oh, as far as I know, there is no reason to believe they haven't. We've been under a stay -- Oh, the intervener counsel will have to tell you if the county has paid her, I don't know. I don't know but we have been under a stay for a class action in this case in this -- in the --
Harry A. Blackmun: I wonder if the new statute passed whether be left to this case?
Alan W. Rubenstein: I don't know. We have to see that sir and check it.
William H. Rehnquist: Why is that that the District Court refused to find there was a class action, refused to certify it as a class?
Alan W. Rubenstein: Because there was pending in the Southern District of New York. I believe a case before Judge Brieant, Louis against Lavine where there was a class action order made.
William H. Rehnquist: So, you mean you're under stay in another case?
Alan W. Rubenstein: We're under stay in another case.
Warren E. Burger: Thank you -- thank you gentlemen. The case is submitted.