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May 17, 1968

John KELLY et al., Plaintiffs,
George K. WYMAN et al., Defendants. Ruby SHEAFE et al., Plaintiffs, v. George K. WYMAN et al., Defendants

The opinion of the court was delivered by: BRYAN


 FREDERICK van Pelt BRYAN, District Judge:

 The present suit is one of the growing number in which welfare recipients are challenging the fairness of the procedures by which the system of public assistance is administered. See, e.g., Thompson v. Shapiro, 270 F. Supp. 331 (D.Conn.1967), prob. juris. noted, 389 U.S. 1032, 88 S. Ct. 784, 19 L. Ed. 2d 820 (Jan. 15, 1968); Smith v. King, 277 F. Supp. 31 (M.D.Ala.1967), prob. juris. noted, 390 U.S. 903, 88 S. Ct. 821, 19 L. Ed. 2d 869. The eight individual plaintiffs in this consolidated action are all New York City residents whose welfare assistance has been terminated without a prior hearing. They attack the validity of the rules and regulations promulgated by the defendants -- the Commissioner of the State Department of Social Services, the individual members of the State Board of Social Welfare, and the Commissioner of the New York City Department of Social Services -- which permitted termination of assistance prior to hearing.

 The complaint, seeking declaratory and injunctive relief, is based on the Civil Rights Act, 42 U.S.C. § 1983. Jurisdiction is alleged under 28 U.S.C. § 1343(3), (4). Plaintiffs have moved for convocation of a three-judge court pursuant to 28 U.S.C. §§ 2281-2284, a preliminary injunction, and a class action order pursuant to Rule 23(c), F.R.Civ.P. Defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted, for mootness, and for want of standing to sue.

 The individual plaintiffs fall into two groups. Four of them -- Kelly, Young, DeJesus and Sheafe -- were recipients of Home Relief pursuant to N.Y. Social Welfare Law, McKinney's Consol.Laws, c. 55, §§ 157-165, a state and locally funded program not subject to the requirements of the Social Security Act. At the time this complaint was filed, the state regulations evidently did not require a hearing either prior or subsequent to termination of home relief assistance. On January 16, 1968, however, the defendant State Board amended the regulations concerning fair hearings subsequent to termination and made them applicable to Home Relief recipients. See 18 N.Y.C.R.R. pt. 84.3 --.23. In addition, home relief recipients are evidently covered by the new procedure for a limited local review prior to termination, pursuant to Regulation 351.26 of the State Department of Social Services, promulgated April 26, 1968. *fn1"

 The remaining four plaintiffs -- McKinney, Frye, Guzman and Lett -- were recipients of Aid to Dependent Children. N.Y. Social Welfare Law §§ 343-362. ADC is one of the federally assisted categorical aid programs administered under the Social Security Law, 42 U.S.C. §§ 601-609 (1964), as amended (Supp. I, 1965). Pursuant to the mandate of the federal statute, *fn2" 42 U.S.C. § 602(a)(4), the state statute provides a fair hearing subsequent to termination. N.Y. Social Welfare Law § 353. Present recipients of ADC faced with termination would also be entitled to the notice and local review provided by new Regulation 351.26, and the New York City plan implementing that regulation approved by the State Department May 1, 1968.

 The plaintiffs' basic claim is that the state cannot, consonant with due process, terminate public assistance without affording the recipient a prior hearing. They point to the cases requiring a hearing at a meaningful point in the administrative process, *fn3" and argue that the extraordinary hardship worked upon a recipient by loss of aid compels the conclusion that the meaningful point for hearing is prior to termination. See Note, Withdrawal of Public Welfare: The Right to a Prior Hearing, 76 Yale L.J. 1234 (1967). The defendants apparently agree with this proposition, since, as explained earlier, they have amended the rules to provide for review at the local level prior to termination. In supplementary filed papers, the plaintiffs have challenged the adequacy of the procedures provided by new Regulation 351.26 to satisfy the requirements of due process.


 Does the case in its present posture require convocation of a three-judge court? The defendants raise several objections at the outset.

 First, they argue that the individual plaintiffs, having failed to invoke the fair hearing procedure after their terminations, have not exhausted their available remedies. While this procedure would only have been available to four of the plaintiffs, in my view exhaustion of a remedy of this sort is not required in a case brought under 42 U.S.C. § 1983. See Damico v. California, 389 U.S. 416, 88 S. Ct. 526, 19 L. Ed. 2d 647 (1967) (per curiam); McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963).

 Second, defendants urge that the case is moot, based on affidavits showing that most of the plaintiffs are now receiving public assistance on an emergency basis. Judicial determination of questions of this importance cannot thus be evaded and, in any event, dismissal is not appropriate when the individuals purport to represent a class.

 Finally, noting that the thrust of plaintiffs' complaint is directed at state and local administrative regulations, defendants argue that a three-judge court is not required under 28 U.S.C. § 2281. This claim is not without merit, particularly in view of the traditional reluctance of courts, based on needs of judicial economy, to invoke the three-judge procedure. See United States v. Interstate Commerce Commission, 337 U.S. 426, 69 S. Ct. 1410, 93 L. Ed. 1451 (1949); Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129, 130-131 (2d Cir. 1967). However, where the regulations are of broad applicability, and embody legislative policy on a state-wide basis, three-judge courts have been deemed appropriate. See Oklahoma Natural Gas Co. v. Russell, 261 U.S. 290, 43 S. Ct. 353, 67 L. Ed. 659 (1923); Note, Federal Review of State Welfare Practices, 67 Colum.L.Rev. 84, 106-08 (1967); compare McWood Corp. v. State Corporate Comm'n, 237 F. Supp. 963 (D.N.M.1965). In my view, a three-judge court is appropriate where, as here, the regulations attacked implement important state social and economic policy.


 The remaining question is whether the constitutional issues presented by the complaint, in the present posture of the case, are substantial. Defendants urge that the procedures provided by Regulation 351.26 fully satisfy the requirements of due process and, in essence, meet the demands of the original complaint. Plaintiffs, on the other hand, claim several deficiencies in the new procedures and to illustrate their objections, contrast the new regulation with the procedures provided upon a fair hearing after termination. Specifically, they complain that the new procedures do not provide for confrontation and cross-examination of witnesses, or for an independent hearing examiner. *fn4" The rules governing fair hearings, on the other hand, plainly provide for confrontation and ...

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