Roberge v. Philbrook

• Decision Date: 15 May 1970
• Docket Number: Civ. A. No. 5805.
• Citation: 313 F. Supp. 608
• Parties: Therese ROBERGE and Carolyn Wells on behalf of their Minor Children and on behalf of All Persons Similarly Situated v. Paul K. PHILBROOK as Commissioner of the Vermont Department of Social Welfare.
• Court: U.S. District Court — District of Vermont

313 F. Supp. 608

Therese ROBERGE and Carolyn Wells on behalf of their Minor Children and on behalf of All Persons Similarly Situated v. Paul K. PHILBROOK as Commissioner of the Vermont Department of Social Welfare.

Civ. A. No. 5805.

United States District Court, D. Vermont.

May 15, 1970.

John A. Dooley, III, and Richard C. Blum, Vermont Legal Aid, Inc., Burlington, Vt., for plaintiffs.

William S. Roby, III, Asst. Atty. Gen., State of Vermont, Montpelier, Vt., for defendant.

OPINION AND ORDER

LEDDY, Chief Judge.

The present action is brought by Therese Roberge and Carolyn Wells on behalf of their minor children and all others similarly situated against the Deputy Commissioner of the Vermont Department of Social Welfare. The plaintiffs are all recipients of welfare assistance under the State Aid to Needy Families with Children (A.N.F.C.) Program. The present A.N.F.C. plan in Vermont is challenged by the plaintiffs on two grounds:

(1) The plan for A.N.F.C. distributions contains a standard of need calculation for recipients which does not reflect current necessities while that same standard under the Aid to Aged, Blind and Disabled (A.A.B.D.) Program does reflect current needs. This disparity of treatment between two classes of welfare recipients is alleged by the plaintiffs to be an unjustifiable discrimination which denies the class of A.N.F.C. recipients equal protection of the laws under the fourteenth amendment.

(2) The defendant has not complied with the Social Security Act, § 402(a) (23), 42 U.S.C.A. § 602(a) (23) (1969) because grant levels to A.N.F.C. recipients have not been raised to reflect current cost of living indices as required by that act. The plaintiffs seek declaratory relief only.

Two threshold questions emerge from the plaintiffs' complaint and prayer for relief.

I. Does this court have subject matter jurisdiction over the claim?

II. Must a determination of the questions presented be heard by a Three-Judge District Court?

I. Subject Matter Jurisdiction

The plaintiffs assert subject matter jurisdiction under two statutory grants. First, they maintain that they come within the authorization of 28 U.S.C.A. § 1343(3)-(4) (1962) providing for jurisdiction without regard to the amount in controversy when the protection of civil rights is involved. As an alternative, the plaintiffs claim that jurisdiction is supported under the general federal question statute 28 U.S.C.A. § 1331 (1966). The jurisdictional amount requirement of that section is satisfied according to the plaintiffs because all claims of all members of the class, as defined under Federal Rule of Civil Procedure 23(b) (2), should be aggregated.

A. Jurisdiction Under Section 1343.

The first issue is whether there is jurisdiction without regard to the amount in controversy under subsections 1343(3) and (4). The relevant parts of section 1343 provide:

The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

* * * * * *

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;

(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.

The plaintiffs seek to bring the equal protection allegation in their complaint within the cover of section 1343(3); and assert section 1343(3) and (4) as jurisdictional support for the statutory claim under the Social Security Act. The jurisdictional application of section 1343 will be examined with regard to both claims.

(1) Equal Protection — Section 1343(3)

For the deprivation of a right to give rise to 1343(3) jurisdiction that right must be either: (1) secured by the constitution, or (2) secured by an Act of Congress providing for equal rights of citizens. The two separate jurisdictional grants within the subsection are differentiated by the document (Constitution or Act of Congress) under which the right infringed upon is secured.¹ The plaintiffs' first allegation is grounded in the equal protection clause of the fourteenth amendment and pointed at the first part of section 1343(3).

Although the language of the subsection seems to indicate otherwise, not every claimed violation of a constitutional right will support jurisdiction under the first part of section 1343(3). The distinction between those constitutional infringements that will support jurisdiction and those that will not was first mentioned by the Supreme Court in Holt v. Indiana Mfg. Co., 176 U.S. 68, 72, 20 S.Ct. 272, 44 L.Ed. 374 (1900) but the source of its true creation and explanation is Justice Stone's opinion in Hague v. C. I. O., 307 U.S. 496, 518-532, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).² In Justice Stone's words, section 1343(3) supports jurisdiction "* * * whenever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights, * * *" 307 U.S. at 531, 59 S.Ct. at 971. If the right involved is not capable of pecuniary valuation because of its relation to a constitutional guarantee of personal liberty, section 1343(3) jurisdiction is properly invoked. Where the party claims a property right amenable to a dollar and cents valuation, the jurisdictional amount under section 1331 must be met, absent a special statutory grant. See C. Wright, Law of Federal Courts § 32 at 109-110 (2d ed. 1970).

Although its historical basis has been questioned and criticized,³ the distinction remains as a vital part of the jurisdictional law in the Second Circuit. Gold v. Lomenzo, No. 34144, 425 F.2d 959 (2d Cir. Jan. 22, 1970); Eisen v. Eastman, 421 F.2d 560, 566 (2d Cir.1969); McCall v. Shapiro, 416 F.2d 246 (2d Cir. 1969). See Hornbeak v. Hamm, 283 F. Supp. 549 (M.D.Ala.1968), aff'd per curiam, 393 U.S. 9, 89 S.Ct. 47, 21 L.Ed. 2d 14 (1968).

Stating the test as formulated in Hague and as adopted by these courts is far easier than applying it to the present facts. The distinction is manageable in the abstract. When the plaintiff seeks redress for property which has been or will be taken; or when the plaintiff alleges that his personal rights have been infringed because of some violation of a purely proprietary right, only section 1331 can support jurisdiction. However, if the plaintiffs' rights to life and liberty are interfered with by the government, section 1343(3) applies and the amount in controversy need not be alleged. The distinction is tied to the recognition that it is unfair to require the plaintiff to pay for his jurisdiction when fundamental personal rights, which defy monetary valuation, are involved.

Unfortunately, many valuable constitutional rights do not lend themselves to classification within the lines of Justice Stone's distinction. A practical application of the test stated above is difficult when both rights of property and rights of personal liberty are involved. It falls upon the district judge to find the proper characterization for each claim by analyzing the gist of the complaint.

In Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969) Judge Friendly attempted to sort out some of the cases dealing with the applicability of section 1343(3) by looking to the gist of each claim. Clearly within the scope of the jurisdictional grant in section 1343(3) are those cases involving first amendment infringement, Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L. Ed. 1019 (1951); Berman v. Board of Elections for the City of New York, 420 F.2d 684 (2d Cir. 1969); voting rights, Baker v. Carr, 369 U.S. 186, 200 n.19, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); racial separation, McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L. Ed.2d 622 (1963); unreasonable searches and other arbitrary police action, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Outside the scope of section 1343(3) are those cases involving the constitutionality of state tax statutes. Hornbeak v. Hamm, 283 F.Supp. 549 (M.D.Ala.), aff'd per curiam, 393 U.S. 9, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968); Abernathy v. Carpenter, 208 F.Supp. 793 (W.D.Mo.1962), aff'd, 373 U.S. 241, 83 S.Ct. 1295, 10 L.Ed.2d 409 (1963) and those actions concerned exclusively with the taking of property. Howard v. Higgins, 379 F.2d 227 (10th Cir. 1967).⁴

As the cases in these two categories indicate, the distinction goes to the object of the constitutional deprivation and not to the form which the deprivation takes. For purposes of this distinction, the due process and equal protection clauses do not have a substantive content of their own, independent of the injury that might result from their violation. Hornbeak v. Hamm, 283 F.Supp. 549 (M.D.Ala.), aff'd per curiam, 393 U.S. 9, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968). See Note, Section 1343 of Title 28 — Is the Application of the "Civil Rights-Property Rights" Distinction to Deny Jurisdiction Still Viable? 49 B. U.L.Rev. 377, 385-386 (1969).⁵

Even with a proper focus on the object of the deprivation, categorization is difficult between the two extremes. It is made more so by the failure of some courts to discuss the distinction. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). Borderline cases which do discuss the issue seem to indicate that when elements of both property rights and personal rights can be found, section 1343(3) will support jurisdiction. See Gold v. Lomenzo, No. 34144 at 961 of 425 F.2d (2d Cir. Jan. 22, 1970); Eisen v. Eastman, 421 F.2d 560, 563-565 (2d Cir. 1969) and D. Currie, Federal Courts 428-429 (1968). In Gold, suit was brought by a real estate broker to enjoin the New York Secretary of State...