The opinion of the court was delivered by: GURFEIN
This is a purported class action by mothers of needy and dependent children born out of wedlock on behalf of themselves, their minor children and all others similarly situated. Because of the circumstances, the Court has permitted the plaintiffs to sue in fictitious names upon filing their true names with the Court. See Doe v. Shapiro, 302 F. Supp. 761, 762 n. 2 (D. Conn. 1969), appeal dismissed, 396 U.S. 488, 90 S. Ct. 641, 24 L. Ed. 2d 677 (1970). The plaintiffs seek injunctive relief, damages, and a declaratory judgment, pursuant to 28 U.S.C. §§ 2201-02 and Fed. R. Civ. P. 57, declaring that the New York Social Services Law § 132-a(3) (McKinney 1972) and New York Social Services Regulation [18 NYCRR § ] 315.2(c)(2)(vii), which require plaintiffs to identify the putative fathers of their children and to establish the paternity of the children, is not in conformity with the Social Security Act, 42 U.S.C. § 601 et seq., and the regulations thereunder; and that the plaintiffs have been denied their constitutional rights to due process of law and equal protection of the laws under the Fourteenth Amendment, their privilege against self-incrimination under the Fifth and Fourteenth Amendments, and their right of privacy under the Ninth Amendment.
The plaintiffs move for the convening of a three-judge court on the ground that they are seeking to enjoin the enforcement of a state-wide statute on constitutional grounds which are substantial, 28 U.S.C. § 2281. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962). The motion also seeks "such other relief as to this court seems just and proper." The defendants vigorously oppose the convening of a three-judge court upon two grounds: (1) that the alleged conflict of Social Services Law § 132-a(3) and 18 NYCRR § 351.2(c)(2)(vii) with the Social Security Act, 42 U.S.C. § 601 et seq., is not a challenge "upon the ground of constitutionality" within the meaning of 28 U.S.C. § 2281; and (2) that plaintiffs' allegations of violations of their rights under the Fifth, Ninth and Fourteenth Amendments are too insubstantial to warrant consideration by a three-judge court.
An attack upon a state statute under the Supremacy Clause or upon the ground that it is in conflict with a federal statute does not alone require the convening of a three-judge court. Swift & Co. v. Wickham, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965). Where there is a substantial constitutional question, however, the Supremacy Clause issue may be the subject of pendent jurisdiction in a three-judge court. King v. Smith, 392 U.S. 309, 312 & n. 3, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968). On the other hand, a three-judge court would have been obliged to adjudicate this statutory claim in preference to deciding the original constitutional claim, Rosado v. Wyman, 397 U.S. 397, 402, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970), as in fact all the statutory courts have done.
In the case at bar we must put the cart before the horse. The issue posed has been substantially the subject of adjudication by at least five Section 2284 courts. See Doe v. Shapiro, supra, and Doe v. Harder, 310 F. Supp. 302 (D. Conn.), appeal dismissed, 399 U.S. 902, 90 S. Ct. 2202, 26 L. Ed. 2d 557 (1970); Woods v. Miller, 318 F. Supp. 510 (W.D. Pa. 1970); Meyers v. Juras, 327 F. Supp. 759 (D. Or.), aff'd, 404 U.S. 803, 92 S. Ct. 91, 30 L. Ed. 2d 39 (1971); Taylor v. Martin, 330 F. Supp. 85 (N.D. Cal.), aff'd, Carleson v. Taylor, 404 U.S. 980, 92 S. Ct. 446, 30 L. Ed. 2d 364 (1971); Doe v. Swank, 332 F. Supp. 61 (N.D. Ill.), aff'd, Weaver v. Doe, 404 U.S. 987, 92 S. Ct. 537, 30 L. Ed. 2d 539 (1971). In each of these cases the particular state statute and regulation mandating cooperation with the state authorities from the mother on pain of ineligibility for welfare were struck down. In none of these three-judge court cases were the constitutional issues reached.
Accordingly, the most appropriate course for the district judge is to first face the statutory claim alone, since on it a three-judge court is not required and since a three-judge court, if convened, would have to face it first. Cf. Rosado v. Wyman, supra.3 Only one district judge has been reversed for hearing the matter as a single judge, Saiz v. Goodwin, 450 F.2d 788 (10 Cir. 1971). But that court appeared to accept the adverse determination of the single judge on the statutory claim, without precluding later reexamination by the court below; and then proceeded to require a three-judge court on the underlying constitutional issues, finding them to be substantial.
We must logically, therefore, first examine the substantive claim on statutory grounds before we consider the constitutional grounds urged. See King v. Smith, supra ; Rosado v. Wyman, supra. The division of opinion among the judges of the several district court panels on the subject at issue is now history in view of the affirmance by the Supreme Court of the judgments in Doe v. Swank, supra ; Meyers v. Juras, supra ; and Taylor v. Martin, supra.4 In the Swank case the District Court held that regulatory provisions of the State of Illinois requiring a mother whose child is born out of wedlock to cooperate with the State in identifying the putative father or be denied additional aid for the newborn child are invalid on the ground that the Social Security Act does not permit "the state to attempt to satisfy its affirmative duty to seek support for the child by cutting that child off from" aid to families with dependent children. 332 F. Supp. at 63. The District Court continued, "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." Id. The only distinction between Swank and the present case is that there the welfare payments denied to the mother would have been for the benefit of the child, while here the payments withheld are for her own benefit. But this distinction has already been held to be without substance. In Doe v. Harder, supra, the same three-judge court which had decided Doe v. Shapiro, supra, holding that a child could not be denied benefits because of the refusal of its mother to identify the father, was confronted with the denial of welfare payments to the mother herself. The Court had no difficulty in finding that "[this] regulation, while in form directed at the mother rather than the child, has the same vice as the original. It reduces the assistance to the family by creating an additional eligibility requirement identical to that held invalid and not authorized by the federal statute." 310 F. Supp. at 303. I perceive no difference between the Connecticut law there struck down and the New York law. Each adds a condition to eligibility not intended in the federal act.
In the light of the Supreme Court's decisions in Swank, Taylor and Meyers, it would be pointless to convene a three-judge court to consider constitutional issues that need not be reached whether they are substantial or not. "It is settled that the statutory claim should be determined and adjudicated before the constitutional issue is considered, and, that a one-judge court is the proper form to determine the statutory claim." Saddler v. Winstead, 327 F. Supp. 568, 569 (N.D. Miss. 1971), three-judge court remanding to single judge, 332 F. Supp. 130 (N.D. Miss. 1971). I am, therefore, denying plaintiffs' request to convene a three-judge court.
I am prepared to rule as a single judge and have indicated how I am disposed to rule.
Since the State and City have limited their joint brief to opposition to the motion for a three-judge court, I shall give them until July 7th to distinguish the cases cited in this opinion.
Since we are dealing with poor people on a bare subsistence level, I shall not require a further motion by the plaintiffs but will consider that I may grant relief under the request "for such other relief as to this court seems just and proper."
The motion to convene a three-judge court is denied. A further brief is to be filed in accordance with this opinion.
SUPPLEMENTAL OPINION (August 29, 1972)
On June 29, 1972 I refused to convene a three-judge statutory court requested by the plaintiffs pursuant to 28 U.S.C. § 2281 upon the ground that the matter might be disposed of without reaching the constitutional issues.
I indicated in my opinion, signed that day, that I was disposed to hold that binding precedent compelled the conclusion that N.Y. Social Services Law § 132-a(3) (McKinney 1972) and Regulation [18 NYCRR § ] 351.2(c)(2)(vii) under challenge1a were not in conformity with the Social Security Act, 42 U.S.C. § 601 et seq. and the regulations thereunder, and, hence, ...