Doe v. Flowers, Civ. A. No. 70-101-E

• Decision Date: 19 October 1973
• Docket Number: 72-6-E.,Civ. A. No. 70-101-E
• Parties: Mrs. Mary DOE, Individually, and on behalf of her minor dependent children and in behalf of all others similarly situated, Plaintiff, v. Edwin FLOWERS, Commissioner of the West Virginia Department of Welfare, Defendant. Jane DOE, Individually, and on behalf of her infant children, Helen, et al., Plaintiffs, v. Edwin F. FLOWERS, Commissioner of the West Virginia Department of Welfare, Individually and in his official capacity, Defendant.
• Court: U.S. District Court — Northern District of West Virginia

364 F. Supp. 953

Mrs. Mary DOE, Individually, and on behalf of her minor dependent children and in behalf of all others similarly situated, Plaintiff, v. Edwin FLOWERS, Commissioner of the West Virginia Department of Welfare, Defendant.

Jane DOE, Individually, and on behalf of her infant children, Helen, et al., Plaintiffs, v. Edwin F. FLOWERS, Commissioner of the West Virginia Department of Welfare, Individually and in his official capacity, Defendant.

Civ. A. Nos. 70-101-E, 72-6-E.

United States District Court, N. D. West Virginia, Elkins Division.

Argued September 18, 1973.

Decided October 19, 1973.

M. E. Mowery, Jr., Fairmont, W.Va., and Larry V. Starcher, Morgantown, W. Va., for plaintiffs in No. 70-101-E.

Naomi W. Cohen, Charleston, W.Va., for plaintiff in No. 72-6-E.

James G. Angerson, III, Sp. Asst. Atty. Gen., Charleston, W.Va., for defendants in Nos. 70-101-E and 72-6-E.

Before BOREMAN, Senior Circuit Judge, FIELD, Circuit Judge, and MAXWELL, District Judge.

PER CURIAM:

These two class actions which were consolidated for hearing challenge the validity of Section 56242 of the West Virginia Department of Welfare Assistance Payments Manual.¹ This regulation requires unmarried mothers of applicants and recipients of Aid to Families with Dependent Children to cooperate with the welfare authorities by identifying the putative fathers of the children and initiating support or paternity proceedings against them. The only exceptions to the requirement that the mother identify the father are in those cases where (1) the mother is an incompetent, (2) the father is an unknown rapist, or (3) the child is over three years of age and there is no evidence of paternity which could be used in court. Under the regulatory pattern if the mother identifies the father, she then has thirty days in which she must obtain the father's notarized consent to support the child or file a bastardy warrant against the putative father or seek the advice of the prosecuting attorney and institute such action as he may recommend.

These actions were brought by Mary Doe² and Jane Doe and others, individually, and on behalf of their minor dependent children who are applicants or former recipients of assistance under the AFDC program and who have been denied aid solely because their mothers have refused to take the action required by Section 56242. Since the plaintiffs claim to sue on behalf of all others similarly situated, they concede that they must show that "the class is so numerous that joinder of all members is impracticable" Fed.R.Civ.P. 23(a) (1). While they have offered the court nothing more definitive than speculative and conclusory representations relative to the size of the class involved, nevertheless, since the only relief sought for the class is injunctive and declaratory in nature, we will permit the action to proceed as a class action with respect to that limited relief.³ In this context we think that the adoption of the challenged regulation by defendants justifies a reasonable inference on our part that the class of individuals subject to its provisions is substantial enough to make joinder impracticable.

Plaintiffs attack the regulation as violative of the Equal Protection Clause of the Fourteenth Amendment; of the Fifth Amendment right against self-incrimination; and of the due process right of "integrity of the family". They also assert that the regulation is incompatible with the Social Security Act, 42 U.S.C. §§ 601-610. Pursuant to 42 U.S.C. § 1983 declaratory and injunctive relief is sought for the class and, additionally, the named plaintiffs ask for retroactive payments of AFDC assistance which they allege were wrongfully denied them by the West Virginia Department of Welfare.

Since plaintiffs challenge the state regulatory provision on federal constitutional grounds and seek to enjoin its enforcement, a three-judge court was convened pursuant to 28 U.S.C. § 2281 and § 2284, and jurisdiction is appropriate under 28 U.S.C. § 1343(3) and (4). We are satisfied that substantial constitutional questions are raised by the complaint; however, since we find merit in the claims based on federal statutory grounds, we do not reach the constitutional issues. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968).

The defendants maintain that their denial of aid to the plaintiffs is not only authorized but required by the federal statute which provides that the state implement a program under which the state agency will undertake "in the case of a child born out of wedlock who is receiving aid to families with dependent children to establish the paternity of such child and secure support for him." 42 U.S.C. § 602(a)(17)(A)(i). While we concede the obligation placed upon the state, we are of the opinion that the method adopted by it is inappropriate and incompatible with the basic eligibility considerations of the Act. The Congress has imposed only two eligibility requirements; they are "need" and "dependency," and the challenged regulation imposes an additional eligibility requirement which is clearly contrary to the congressional intent underlying the AFDC program.

With few exceptions the courts who have had occasion to consider regulations similar to the one presently before us have concluded that they were incompatible with the Act. One of the first of these was Doe v. Shapiro, 302 F. Supp. 761 (D.C.Conn.1969). In a well reasoned opinion the court in that case held the regulation invalid, stating:

"Although the state argues with considerable force that the Social Security Act requires it to take affirmative steps to ascertain paternity in the case of illegitimate children receiving AFDC assistance, we do not think that 42 U.S.C. §

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