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DOE v. SWANK

July 7, 1971

MRS. JANE DOE, INDIVIDUALLY, AND ON BEHALF OF HER MINOR DEPENDENT CHILDREN, DERRILYNNE, JOSEPH AND KUMASI-CHAD, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
HAROLD O. SWANK, DIRECTOR, ILLINOIS DEPARTMENT OF PUBLIC AID AND DAVID J. DANIEL, DIRECTOR, COOK COUNTY DEPARTMENT OF PUBLIC AID, DEFENDANTS.



Before Kerner, Circuit Judge, and Lynch and Marovitz, District Judges.

The opinion of the court was delivered by: Per Curiam.

MEMORANDUM OF DECISION

Plaintiff, Jane Doe, is the mother of three children. Her youngest child, Kumasi-Chad, was born out of wedlock. Prior to the birth of Kumasi-Chad, Jane Doe had received Aid to Families with Dependent Children (A.F.D.C.) through the Illinois Department of Public Aid (Department). Shortly after the birth of Kumasi-Chad, Jane Doe informed the Department that the child had been born to her, and she sought additional assistance for the newborn child. Pursuant to certain regulatory provisions of the Department, Jane Doe was asked to identify the putative father of Kumasi-Chad and she refused. The Department denied her request for additional aid because she refused to identify the putative father of Kumasi-Chad. Further she refused to participate in a paternity action against him for the benefit of the child. The Department also threatened to reduce Mrs. Doe's rental and utility allowance unless she identified Kumasi-Chad's putative father. Subsequently the plaintiffs filed this action challenging the validity of the Department's regulatory provisions insofar as they condition A.F.D.C. payments upon Jane Doe's identification of her child's putative father. Plaintiffs contend that these regulations are inimical to rights secured by the fifth, ninth and fourteenth amendments. They also contend that the regulations contravene 42 U.S.C. § 1983 and the Federal Social Security Act of 1935, 42 U.S.C. § 601-609. Jurisdiction obtains pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343. The plaintiffs seek declaratory and injunctive relief and damages by way of back payments for benefits wrongfully withheld.

Since plaintiffs challenge a state regulatory provision on constitutional grounds and seek to enjoin state officers, a three-judge court was convened pursuant to 28 U.S.C. § 2281 and 28 U.S.C. § 2284. A hearing was held and the three-judge court entered a preliminary injunction restraining the defendants from enforcing the challenged regulatory provisions as to plaintiff Jane Doe.

The regulatory provisions challenged here are part of the Illinois Department of Public Categorical Assistance Manual. Pursuant to § 408.3 of the Manual a welfare recipient who has a child born out of wedlock and less than two years of age, is referred by the Department to the State's Attorney who institutes a paternity action in the child's behalf. If the child's mother refuses to cooperate with the State's Attorney the child is deemed ineligible for aid. This precondition on eligibility for a child born out of wedlock is reinforced by § 1259.1 of the Categorical Assistance Manual, which provides:

  "DPA 440, Request for Legal Action ADC or MA-NG
  (Cr) (Cu)
  As a condition of initial or continuing
  eligibility the Illinois Public Aid Code provides
  the parent or other person having custody of a
  child on whose behalf he is applying for or
  receiving ADC/ADC-U or MA-NG (Cr) (Cu) must
  request the Attorney General (State's Attorney
  for Cook County) file action for enforcement of
  such remedies as the law provides for fulfillment
  or the support obligation of the absent parent of
  such child. Absent parent includes the legal
  parent or father of a child born out of wedlock,
  whether or not his paternity has been legally
  established.
  Action is required when the absent parent is
  failing to furnish support, is not meeting the
  terms of a court order, if financially able to
  furnish more support than ordered or agreed to,
  or is not legally determined to be the father of
  a child born out of wedlock. The parent or other
  person having custody must cooperate in every
  material aspect of any legal enforcement
  procedure, including the signing of such legal
  documents as may be required and the giving of
  necessary testimony.
  Unwillingness to sign DPA 440 or to fully
  cooperate in the legal procedure immediately
  renders all children owed a duty of support
  ineligible for assistance. Ineligibility
  continues until the Statute of Limitations has
  expired in paternity cases. Generally, this is a
  two year period.
  However, legal acknowledgment of paternity or
  absence of the putative father from the state
  stops the statute from running, thereby extending
  the period of ineligibility."
  In addition to rendering the child ineligible for aid Jane Doe's refusal to identify the putative father of Kumasi-Chad creates additional hardships for the plaintiffs. According to the provisions of the Illinois Public Aid Categorical Assistance Manual, § 1504, public assistance in the form of rental payments and utility payments are prorated equally among the members of the family group. Thus, in a family of four where one of the members is ineligible for aid the total rental and utility allowance is only 75% of the maximum allowable assistance for a family of that size. In the matter recounted here the plaintiff Kumasi-Chad was rendered ineligible by reason of his mother's refusal to identify the putative father. The result of that refusal was a threatened reduction in rent and utility payments by 25%, representing Kumasi-Chad's relationship to the family group.

The plaintiffs contend that these regulations violate rights secured by the fifth, ninth and fourteenth amendments. We are satisfied that the regulations challenged here raise substantial constitutional questions. Accordingly, a three-judge court was properly convened. The plaintiffs also raise claims based upon certain provisions of the Social Security Act of 1935. For reasons set forth herein we hold that those claims, founded on federal statutory provisions, are meritorious, and we do not reach the constitutional issues. However, this disposition of the matter does not void the jurisdiction of this three-judge court. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118.

The federal government's welfare program is implemented by the Social Security Act of 1935. Illinois, and each of her sister states, participate in the Federal program, and each state must operate its welfare program consistent with the provisions of the Social Security Act. Eligibility for aid under the Social Security Act of 1935 is conditioned upon two factors. A child must be both needy and dependent. No other conditions of eligibility are required. Doe v. Shapiro, 302 F. Supp. 761, 776 (D.C.Conn. 1969). The child Kumasi-Chad meets the needy and dependent requirements. However, the state argues that its obligation, in the context of this case, should permit it to establish additional measures of eligibility. The state contends that it is obligated to identify and prosecute the father of the needy child in order to obtain support for the child. The state's contention is accurate. See 42 U.S.C. § 602(a)(17)(A). However, the question remains as to the propriety of the methods adopted by the state to secure the identification of the child's father.

We find nothing in the Social Security Act that permits the state to attempt to satisfy its affirmative duty to seek support for the child by cutting that child off from A.F.D.C. We agree with the majority in Doe v. Shapiro, supra, in holding that refusal to extend benefits in the circumstances recounted here is contrary to congressional intent. Accordingly we hold that the challenged ...


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