Gilliard v. Kirk
Decision Date | 07 May 1986 |
Docket Number | Civ. A. No. 2660. |
Citation | 633 F. Supp. 1529 |
Court | U.S. District Court — Western District of North Carolina |
Parties | Beaty Mae GILLIARD; Samuel Odell Davis; Lorraine Gilliard; Loretta Gilliard; Thomas Gilliard; Dana Gilliard; Gregory Gilliard; Reginald Gilliard; and Samuel Davis Jr. Gilliard, minors, by their mother and next friend, Beaty Mae Gilliard, on behalf of themselves and all others similarly situated, Plaintiffs, v. Phillip J. KIRK, Secretary, North Carolina Department of Human Resources, in his official capacity, and C. Barry McCarty, Chairman, North Carolina Social Services Commission, in his official capacity, Defendants and Third-Party Plaintiffs, v. Otis R. BOWEN, M.D., Secretary United States Department of Health and Human Services, Third-Party Defendant. |
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Jane R. Wettach, East Central Community Legal Services, Raleigh, N.C., and Lucie C. White and Jean M. Cary, University of North Carolina School of Law, Chapel Hill, N.C., for plaintiffs.
Lemuel W. Hinton and Clifton H. Duke, Asst. Attys. Gen., N.C. Dept. of Justice, Raleigh, N.C., for defendants and third-party plaintiffs.
Charles R. Brewer, U.S. Atty., Charles E. Lyons, Asst. U.S. Atty., Charlotte, N.C., Bruce R. Granger, Regional Atty., and Edgar M. Swindell, Asst. Regional Atty., Dept. of Health and Human Services, Atlanta, Ga., for third-party defendant.
Plaintiffs are children of low income mothers. They bring this suit through their mother and next friend, on behalf of themselves and similarly situated persons. Not all the children of each mother have the same father. Some of the children are "needy," and have been receiving AFDC (Aid to Families with Dependent Children) payments. Some of the children are not "needy" because their absent fathers are making adequate child support payments to the mother.
The state defendants, acting under a rational interpretation of pertinent recent federal statutes and regulations, are "deeming" the support payments from absent fathers to be income available to all the dependent children in the house. Defendants are cutting off or reducing AFDC payments accordingly, with tragic results shown by the evidence.
This is an unlawful "taking" of the child's income from an absent father. It also unlawfully deprives the other children in the family of AFDC benefits by destroying or reducing their entitlement because one of the mother's children who has income of his or her own exercises his or her right to live in the mother's family unit.
Regardless of whether federal pre-emption in a technical sense has occurred, the federal scheme has, in fact, overpowered state family law, and has undermined traditional understandings of family values and duties.
Plaintiffs seek an end to the "deeming" practice. They are entitled to relief.
This case has been here before. In Gilliard v. Craig, 331 F.Supp. 587 (W.D.N. C.1971) (three judge court), this court enjoined the state defendants from reducing or withholding "the payment of AFDC Aid to Families with Dependent Children benefits ... because of the presumed availability to an AFDC family of child support payments which belong to one or more but not all members of that family." Id. at 593-94. That decision was appealed to the Supreme Court and was affirmed. 409 U.S. 807, 93 S.Ct. 39, 34 L.Ed.2d 66 (1972), reh. den., Craig v. Gilliard, 409 U.S. 1119, 93 S.Ct. 892, 34 L.Ed.2d 704 (1973). The 1971 injunction remains in effect because it has not been stayed, vacated, withdrawn or reversed. Walker v. City of Birmingham, 388 U.S. 307, 313-14, 87 S.Ct. 1824, 1828, 18 L.Ed.2d 1210 (1967); United States v. United Mine Workers of America, 330 U.S. 258, 293-14, 67 S.Ct. 677, 695-06, 91 L.Ed. 884 (1947); Wright v. Jackson, 522 F.2d 955, 958 (4th Cir.1975). Consequently, the state defendants remain subject to the commands of the original injunction pending modification or reversal. Pasadena City Board of Education v. Spangler, 427 U.S. 424, 439-40, 96 S.Ct. 2697, 2706, 49 L.Ed.2d 599 (1976).
Gilliard v. Craig, supra, at 588.
The plaintiffs (movants) are members of the same class that was granted relief in 1971. They have filed a motion for further relief, seeking the same sort of relief that was ordered in 1971.
On October 10, 1984, the state defendants put into effect a set of new regulations ("Standard Filing Unit" or "SFU" regulations) reading, in pertinent part, as follows:
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...the DEFRA amendment violated the Due Process and Takings Clauses of the Fifth Amendment, as well as the Takings Clause. Gilliard v. Kirk, 633 F.Supp. 1529 (W.D.N. C.1986). On appeal, the Supreme Court The Supreme Court found the DEFRA regulation requiring a child receiving child support to ......
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