Carter v. Stanton/Separate Douglas

by William O. Douglas

[p672] MR. JUSTICE DOUGLAS.

I agree that both this Court and the District Court have jurisdiction to entertain this case and that the appellants were not required to exhaust administrative remedies before launching their challenge. But, although the District Court should have made more complete findings of fact and conclusions of law, I would not remand simply on this score but would hold that the appellants are entitled to judgment.

The problem is simple and should be disposed of here.

The federal Act defines a "dependent child" as a "needy child... who has been deprived of parental support or care by reason of... continued absence from the home."^[1] Indiana by its Board of Public Welfare has adopted the federal definition of "needy child."^[2]

The term "continued absence from the home" is not defined in the federal Act, though HEW recommends "that no period of time be specified as a basis for establishing continued absence as an eligibility factor."^[3] Indiana, however, has established by rule a definition of "continued absence" in case of "desertion or separation." In those two instances it makes "continued absence" mean that "the absence shall have been continuous" for at least [p673] six months,^[4] except when the department of welfare finds that there are "exceptional circumstances of need."

A dependent child gets aid immediately and continuously in case the parent is incarcerated or in case the parent is inducted into the armed services. The six-month rule creates a separate class of needy children who by the federal standard may be as "needy" as those in the other two categories.

The federal Act directs that "aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals."^[5] The federal regulation requires decisions on applications to be made "promptly" and "not in excess of" 30 days and that the assistance check or notification of denial be mailed within that period.^[6] As noted, the federal Act contains no waiting period to establish "continued absence." And the HEW Handbook, already referred to,^[7] states as respects "continued absence" that "[a] child comes within this interpretation if for any reason his parent is absent."^[8]

[p674] Here, as in California Human Resources Dept. v. Java, 402 U.S. 121, 135, the State's program "tends to frustrate" the Social Security Act. King v. Smith, 392 U.S. 309, "establishes that, at least in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause." Townsend v. Swank, 404 U.S. 282, 286. While a State has a legitimate interest in preventing fraud, there are, as we said in Shapiro v. Thompson, 394 U.S. 618, 637, "less drastic means" available "to minimize that hazard." Rather than remanding for a lower court determination of the law of the case, the merits ought to be decided now inasmuch as (a) the facts are essentially undisputed, (b) the appellants' claim based on the federal Act is plainly correct, and (c) further litigation would work a hardship upon welfare recipients affected by the Indiana rule. See generally Note, Individualized Criminal Justice In The Supreme Court: A Study of Dispositional Decision Making, 81 Harv. L. Rev. 1260 (1968); Bell; Appellate Court Opinions And The Remand Process, 2 Ga. L. Rev. 526, 536 (1968).

[p675] The Indiana regulation so plainly collides with the federal Act that I would end this frivolous defense to this welfare litigation by deciding the merits and reversing by reason of the Supremacy Clause.

Notes

1. 49 Stat. 629, as amended, 42 U.S.C. § 606 (a).
2. Ind. State Bd. of Pub. Welfare Reg. 2-400 (a).
3. Dept. of Health, Education, & Welfare Handbook of Public Assistance Administration, pt. IV, § 3422.5 (1968).
4. Burns, Ind. Admin. Rules & Regs. (52-1001)-2 (1967): "When the continued absence is due to desertion or separation, the absence shall have been continuous for a period of at least six [6] months prior to the date of application for assistance to dependent children; except that under exceptional circumstances of need and where it is determined that the absence of a parent is actual and bona fide an application may be filed and a child may be considered immediately eligible upon a special finding of the county department of public welfare setting forth the facts and reasons for such action."
5. 42 U.S.C. § 602 (a)(10).
6. 45 CFR § 206.10 (3), 36 Fed. Reg. 3864.
7. N. 3, supra.
8. Part IV, § 3422.2, of the Handbook provides:

   "Continued absence of the parent from the home constitutes the reason for deprivation of parental support or care under the following circumstances:

   "1. When the parent is out of the home;

   "2. When the nature of the absence is such as either to interrupt or to terminate the parent's functioning as a provider of maintenance, physical care, or guidance for the child; and

   "3. When the known or indefinite duration of the absence precludes counting on the parent's performance of his function in planning for the present support or care of the child.

   "A child comes within this interpretation if for any reason his parent is absent, and this absence interferes with the child's receiving maintenance, physical care, or guidance from his parent, and precludes the parent's being counted on for support or care of the child. For example: The child's father has left home, without forewarning his family, and the mother really does not know why he left home, nor when or whether he will return."