The opinion of the court was delivered by: CURTIN
This is an action challenging the constitutionality of the recently enacted New York welfare residency statute, Chapter 606 of the Laws of New York (1971),
on the grounds that it is violative of the First, Fifth, and Fourteenth Amendments to the United States Constitution. Plaintiff seeks an order that this action be maintained as a class action pursuant to Rules 23(b)(2) and (c)(1) of the Federal Rules of Civil Procedure, a judgment declaring the statute unconstitutional, and preliminary and permanent injunctive relief. Although plaintiff seeks to restrain defendants from enforcing a state statute, and a district court of three judges would therefore appear necessary, plaintiff argues that this case is governed by Bailey v. Patterson, 369 U.S. 31, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1962), and convening a three-judge court is accordingly inappropriate.
Jurisdiction is alleged under Title 28, United States Code, Sections 1331, 1343 (3) and (4), 2201, and 2202.
This court cannot agree with plaintiff's argument that this case should be decided by a district judge alone. In view of the arguments which defendants have raised in the defense of the challenged statute, the most direct and expedient route to a final determination of the merits of plaintiff's action is to convene a statutory three-judge court pursuant to Title 28, United States Code, Sections 2281 and 2284. See Gong v. Kirk, 375 F.2d 728 (5th Cir. 1967).
This court finds that the constitutional question is substantial, that the complaint alleges a basis for equitable relief, and that the case otherwise comes within the requirements of the three-judge statute. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962).
Defendants concede that this action may proceed as a class action composed of all persons eligible for the receipt of public assistance except for their failure to meet the one-year residency requirement. It is ordered that plaintiff may proceed as representative of the described class. See Rule 23(a), Federal Rules of Civil Procedure.
Notification of all members of the class is required as a matter of due process. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, at 564 (2d Cir. 1968). Considering the indigency of the plaintiff, the circumstances of this case, and the adequacy of current media coverage, the defendants are directed to forthwith notify the local departments of social services throughout the state of the contents of this order, and to see to it that appropriate notice is posted in these offices. See C.A. Wright, Handbook of the Law of Federal Courts, 313 (2d ed. 1970).
Turning to plaintiff's application for a temporary restraining order, the court has reviewed the growing list of prior decisions on residency requirements to determine whether plaintiff has met its burden of making a sufficiently clear showing of probable success and possible irreparable injury pendente lite if the temporary injunctive relief is denied. See Title 28, United States Code, Section 2284(3); Dino DeLaurentiis Cinematografica, S.p.A. v. D-150, Inc., 366 F.2d 373 (2d Cir. 1966). In Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), the United States Supreme Court struck down the one-year welfare residency requirements of Connecticut, Pennsylvania, and the District of Columbia. Within the last month, in Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971), the Supreme Court, in an opinion by Justice Blackmun, struck down the welfare residency statutes of Arizona and Pennsylvania as applied to aliens. In Gaddis v. Wyman, 304 F. Supp. 717 (N.D.N.Y. and S.D.N.Y. 1969), a consolidated three-judge court declared a provision of the New York Social Services Law, which required state officials to deny Aid For Dependent Children to anyone applying within one year after arrival in New York unless the applicant could prove his or her entry was not for the purpose of securing public assistance, unconstitutional. This decision was affirmed per curiam by the Supreme Court. Wyman v. Bowens, 397 U.S. 49, 90 S. Ct. 813, 25 L. Ed. 2d 38 (1970). In Gaddis, the district court opinion expressly recognized the difficulties of the government of New York in seeking to preserve fiscal integrity and its welfare programs. As a matter of constitutional law, however, the court noted that the residency requirement was not the best solution to the problem. The court concluded:
"The failure of state attempts to fence out migrant indigents intent upon exercising their constitutional right of travel has led some to conclude that the welfare budget problem 'has become the common responsibility and concern of the whole nation,' * * * the solution of which depends upon adoption of national welfare laws of the type recently recommended by * * * President [Nixon], which would assure the needy, wherever located, of minimum assistance. See N. Y. Times, Aug. 9, 1969, p. 10. In any event the solution must be found elsewhere than in the type of statute here under review." 304 F. Supp. at 724.
In view of the authorities reviewed above and cited hereafter, and without passing on the ultimate merits of the questions raised in this action, it is clear that plaintiff has made a sufficient showing of probable success on the merits. See King v. New Rochelle Municipal Housing Authority, 442 F.2d 646 (2d Cir. 1971); Cole v. Housing Authority of City of Newport, 435 F.2d 807 (1st Cir. 1970); and see generally Note, Residence Requirements After Shapiro v. Thompson, 70 Colum. L. Rev. 134 (1970).
The court is also satisfied that plaintiff and other members of his class will suffer irreparable injury if an immediate injunction is not granted. They are being denied public assistance at the present time. Some are accepting the state offer of transportation back to other states. In either case, the irreparable injury to individuals or families is certain and great. Until the outcome of this lawsuit can be determined, the status quo ante litem should be preserved. The plaintiff's application for a temporary restraining order enjoining the defendants from enforcing Chapter 606 pending this litigation is granted forthwith. Title 28, United States Code, Section 2284(3).
Therefore, the Honorable Chief Judge of the United States Court of Appeals for the Second Circuit is hereby requested to convene a three-judge ...