Doe v. Schmidt

• Decision Date: 13 July 1971
• Docket Number: Civ. A. No. 70-C-196.
• Citation: 330 F. Supp. 159
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Jane DOE, individually and on behalf of her minor dependent child, and on behalf of all others similarly situated, Plaintiffs, Henrietta Roe, individually and on behalf of her minor dependent children, Intervenors, v. Wilbur J. SCHMIDT, individually and as Secretary of the Wisconsin Department of Health and Social Services, and his Agents, Employees, Successors in Office, Assistants and all others acting in concert or cooperation with him or at his direction or under his control, Defendants.

330 F. Supp. 159

Jane DOE, individually and on behalf of her minor dependent child, and on behalf of all others similarly situated, Plaintiffs, Henrietta Roe, individually and on behalf of her minor dependent children, Intervenors, v. Wilbur J. SCHMIDT, individually and as Secretary of the Wisconsin Department of Health and Social Services, and his Agents, Employees, Successors in Office, Assistants and all others acting in concert or cooperation with him or at his direction or under his control, Defendants.

Civ. A. No. 70-C-196.

United States District Court, E. D. Wisconsin.

July 13, 1971.

Steven H. Steinglass and James A. Walrath, Milwaukee, Wis., for plaintiffs and intervenors.

Robert W. Warren, Atty. Gen., by Ward L. Johnson, Asst. Atty. Gen., Madison, Wis., for defendants.

Before FAIRCHILD, Circuit Judge, REYNOLDS, Chief District Judge, and TEHAN, Senior District Judge.

DECISION

REYNOLDS, Chief District Judge.

This is a class action challenging the validity of certain eligibility requirements for the aid to families with dependent children program (AFDC) in Wisconsin. These eligibility requirements are contained within § 49.19(4) (d) (4-7) of the Wisconsin Statutes (1969) which is at issue in this lawsuit and provides as follows:

"49.19 Aid to families with dependent children.

* * * * * *

(4) * * * "(d) Aid may be granted to the mother or stepmother of a dependent child if she is without a husband unless she:

* * * * * *

"4. Is the wife of a husband who has continuously abandoned or failed to support her, if the husband has been legally charged with abandonment under s. 52.05 or with failure to support under s. 52.055 or in proceedings commenced under s. 52.10; or

"5. Has been divorced and is without a husband or legally separated from her husband and is unable through use of the provisions of law to compel her former husband to adequately support the child for whom aid is sought; or

"6. Has commenced an action for divorce or legal separation and obtained a temporary order for support under s. 247.23 which order is either insufficient to adequately meet the needs of the child or cannot be enforced through the provisions of law; or

"7. Has obtained an order under s. 247.08 from the court to compel support, which order is either insufficient to adequately meet the needs of the child or cannot be enforced through the provisions of law; * * *

"* * *."

The plaintiffs maintain that § 49.19(4) (d) is invalid because it is unconstitutional and because it violates controlling federal law. More specifically, plaintiffs contend that § 49.19(4) (d) is unconstitutional in that:

1. Subsections 4, 5, 6, and 7 establish a conclusive presumption that the absence of a parent from the home is not a bona fide "continued absence" within the meaning of § 49.19(1) (a)¹ unless the mother takes legal action against the absent parent. Plaintiffs contend that this conclusive presumption is not based on incontrovertible fact and therefore is violative of the due process clause of the Fourteenth Amendment.

2. Plaintiffs contend that § 49.19(4) (d) violates the equal protection clause of the Fourteenth Amendment in that it embodies an unreasonable and invidious discrimination between children who are needy and dependent but whose mothers will not or cannot take legal action against the husband, on the one hand, and all other needy and dependent children, on the other. The latter, plaintiffs contend, are granted aid and assistance while the former otherwise eligible children are denied aid and assistance.

3. Plaintiffs make a further claim of unconstitutionality based upon the equal protection clause of the Fourteenth Amendment. They contend that subsections 5, 6, and 7 are unconstitutional in that they discriminate against plaintiffs on the basis of poverty, bestowing aid on persons with sufficient funds to file for divorce, legal separation or support and maintenance, but denying aid to those without the resources to undertake these legal actions.

4. Plaintiffs also contend that subsections 4, 5, 6, and 7 violate plaintiffs' rights of privacy and marital privacy as secured and protected by the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. Plaintiffs contend that § 49.19(4) (d) violates these rights because it forces them to take drastic steps to alter, threaten, or terminate their marital status in order to obtain food and clothing for their children.

In addition to the above constitutional allegations, plaintiffs further contend that subsections 4 through 7 of § 49.19(4) (d) are inconsistent with the federal statute (the Social Security Act of 1935, 42 U.S.C. § 601, et seq.) and the regulations promulgated thereunder by the Department of Health, Education, and Welfare (HEW).

Plaintiffs seek declaratory and injunctive relief and, in addition, seek an award of retroactive benefits amounting to payments to which plaintiffs contend they were entitled but which have been denied them. The named plaintiffs bring this action in their own behalf and on behalf of all those otherwise eligible to receive AFDC assistance but for the requirements contained in subsections 4 through 7 of § 49.19(4) (d).²

This action was commenced in the Eastern District of Wisconsin on April 7, 1970. On April 27, 1970, the single district judge denied plaintiff Jane Doe's request for a temporary restraining order. On May 7, 1970, a hearing before the single judge was held on plaintiff Henrietta Roe's motion to intervene as a party plaintiff and to proceed by fictitious name and for a temporary restraining order. Plaintiff's motions were all granted, and the next day the single judge requested the convening of a court of three judges pursuant to 28 U.S.C. § 2281. On May 14, 1970, the Chief Judge of the Court of Appeals for the Seventh Circuit designated the present three-judge court to hear and determine the instant action. Subsequently, plaintiffs moved the single district judge for a modification of the temporary restraining order previously issued. By an order signed by the single district judge on July 30, 1970, the temporary restraining order was extended to cover the entire class of plaintiffs. The case was argued before this three-judge court on October 29, 1970.

For the reasons set forth below, we find that subsections 4 through 7 of § 49.19(4) (d) are inconsistent with the Social Security Act of 1935. Finding the statute invalid on statutory grounds, we do not reach the merits of plaintiffs' constitutional allegations and claims.

I. FACTUAL BACKGROUND

The following relevant facts are not in dispute. As a condition of eligibility for AFDC assistance in Wisconsin, the state requires that one of several legal actions be undertaken against husbands who are "continuously absent" from their homes for reasons other than incarceration or commitment.

A woman in Wisconsin may qualify for AFDC assistance for herself and her children:

1. If she has been divorced or legally separated from her husband and is unable to compel her husband to support his children through the provisions of law;

2. If she has commenced an action for divorce or legal separation and obtained a temporary order for support which is either insufficient to meet the children's needs or is unenforceable; or

3. If she has obtained a civil order to compel support under § 247.08, Wisconsin Statutes, which order is either insufficient or unenforceable.

A woman may also qualify for AFDC assistance if her husband has been "legally charged" with failure to support or with abandonment. In order to satisfy the requirement that the husband be legally charged, there must be the signing of a criminal complaint and the issuance of either a summons or an arrest warrant. Although not technically necessary, it is the practice in Wisconsin to require female applicants for AFDC, who are either unwilling or unable to commence civil actions, to sign criminal complaints against their husbands in order to establish their eligibility. (District attorneys, supervisory welfare personnel, or others having the requisite information could sign such a complaint. However, it is agreed that the practice is as above.)

There is a class of persons composed of applicants and recipients of AFDC financial assistance whose eligibility for such assistance has been denied or terminated because of their failure to commence a legal action against their husbands as required by subsections 4 through 7 of § 49.19(4) (d).

II. JURISDICTION

Jurisdiction is asserted under 42 U.S. C. § 1983 and 28 U.S.C. § 1343(3) and (4). Although we do not decide the merits of plaintiffs' constitutional claims regarding § 49.19(4) (d), we must, as a threshold matter, consider their jurisdictional sufficiency. The oft articulated standard as to the sufficiency of a federal constitutional claim with respect to founding jurisdiction in a statutory court of three judges is that the constitutional claim must not be insubstantial. Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129, 130-131 (2d Cir. 1967), and cases cited therein. The Supreme Court has held that:

"* * * The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this Court as to foreclose the subject. * * *" California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L. Ed. 1323 (1938).

If plaintiffs' constitutional claims were limited to asserted deprivations of equal protection of the laws in violation of the Fourteenth Amendment, there would be considerable question as to their "substantiality." The plaintiffs commenced the instant action the day after the Supreme Court decided the case of Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).³ However, plaintiffs also raise constitutional claims based upon due process and the rights of privacy and marriage.

Although courts may...