United Low Income, Inc. v. Fisher

• Decision Date: 29 December 1972
• Docket Number: No. 72-1138.,72-1138.
• Citation: 470 F.2d 1074
• Parties: UNITED LOW INCOME, INC., et al., Plaintiffs, Appellants, v. Dean FISHER, M.D., Individually and in his capacity as Commissioner of Health and Welfare for the State of Maine, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

470 F.2d 1074 (1972)

UNITED LOW INCOME, INC., et al., Plaintiffs, Appellants, v. Dean FISHER, M.D., Individually and in his capacity as Commissioner of Health and Welfare for the State of Maine, et al., Defendants, Appellees.

No. 72-1138.

United States Court of Appeals, First Circuit.

Argued September 13, 1972.

Decided December 29, 1972.

Hugh Calkins, Portland, Me., with whom Susan Calkins and Robert Edmond Mittel, Portland, Me., were on brief, for plaintiffs, appellants.

Eugene W. Murray, Asst. Atty. Gen., with whom Ronald J. Cullenberg, Asst. Atty. Gen., was on brief, for defendants, appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

PER CURIAM.

The appellants¹ in this class action have sought a declaratory judgment and an injunction restraining the Commissioner of the Maine State Department of Health and Welfare from terminating welfare (AFDC-U) and Medicaid benefits previously granted to families with unemployed fathers.

The State of Maine, in 1969, had elected to broaden its Aid to Families with Dependent Children (AFDC) Program so as to include provision for payments on behalf of needy children deprived of support or care by reason of their father's unemployment. In so doing, Maine took advantage of a 1961 amendment to Title IV of the Social Security Act of 1935 (the Act), 42 U.S.C. §§ 601-44, which permitted states, optionally, to so enlarge AFDC coverage. Under the original Act, the states could pay AFDC only on behalf of needy children deprived of parental support or care by reason of the death, continued absence from home, or physical or mental incapacity of a parent. 42 U.S.C. § 606. By 1968, fewer than one-half of the states had adopted the AFDC-U option, 42 U.S.C. § 607, although all provided the more restricted AFDC coverage authorized by the Act originally. See King v. Smith, 392 U.S. 309, 318, n. 13, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968).

Maine's 1969 enlargement of AFDC to include families with unemployed fathers had the effect of bringing those families under Medicaid. The latter was another program, funded jointly by the federal government and the participating state, in which Maine participated. Title XIX of the Act, 42 U.S.C. § 1396 et seq.; 22 M.R.S.A. §§ 3301-3453.

The present dispute arose after the Maine Legislature in June of 1971 had enacted, and the governor had approved, a Supplemental Appropriations Act for the fiscal years ending June 30, 1972 and June 30, 1973, deleting from the 1971-72 appropriations a total of $600,000, with the following explanation:

It is the intent of the legislature that by decreasing this appropriation the Department of Health and Welfare shall abolish the unemployed father grant in the AFDC Program during the next biennium. (L.D. 1811; P. & S.L. Me. (1971) ch. 117.)

Pursuant to that directive, as the district court found, the defendant Commissioner notified the members of the plaintiff class that both their AFDC-U and Medicaid benefits were to be terminated as of July 1, 1971. The defendant also filed, and HEW has approved, a modified Title IV AFDC plan deleting the AFDC-U program.

The appellants assert that to cut off aid for needy children whose needs result from their father's unemployment, while aiding those whose needs result from their father's death, absence or incapacity, is to deny equal protection under the Fourteenth Amendment.²

In its pre-trial report and order, the district court expressed doubt, for reasons unstated, that the action was one requiring the convening of a three-judge court as plaintiffs had requested. Noting that defendant's counsel had stated a preference for a single-judge court, and "without objection from plaintiffs' counsel," the court denied the request for a three-judge court. The case being thereafter submitted on a stipulation of facts, the district court denied plaintiffs' equal protection claim, United Low Income, Inc., et al. v. Dean Fisher, M.D., etc., 340 F.Supp. 150 (D.Me.1972), and entered judgment dismissing the complaint with prejudice and without costs.

We requested the district court to file a memorandum setting forth its reasons for refusing to convene a three-judge court. In response, the district court indicated that there were three reasons: (a) the parties expressly waived a three-judge court; (b) for the reasons set forth in its opinion and order dated March 20, 1972, it did not consider plaintiffs' constitutional claims to be substantial; and (c) the plaintiffs did not challenge as unconstitutional any state statute or administrative order made pursuant to a state statute.

We have at least serious doubts about the sufficiency of grounds (a) and (c). However, we need not reach these issues, since we hold that the district court correctly declined reference to a three-judge court on the basis of ground (b).

If the constitutional question is not substantial, a district court should decline to request a three-judge court and should dismiss. Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152 (1933). As we indicated in Merced Rosa v. Herrero, 423 F.2d 591 (1st Cir.1970), determination whether an issue is substantial requires an exercise of legal judgment. We thus rejected the Fifth Circuit's approach of request-unless-no-doubt-at-all, Jackson v. Choate, 404 F.2d 910 (5th Cir.1968). Since Merced the Second Circuit has taken what might be characterized as an even stronger approach, holding that the district court's judgment of insubstantiality will not be questioned on appeal where after full consideration the court of appeals "unanimously agrees that the attack is without merit." Heaney v. Allen, 425 F.2d 869, 872 (2nd Cir.1970); See also Miller v. New York Stock Exchange, 425 F.2d 1074 (2nd Cir.1970), and Johnson v. New York State Education Department, 449 F.2d 871 (2nd Cir.1971), vacated and remanded on other grounds, 409 U.S. 75, 93 S.Ct. 259, 34 L.Ed.2d 290 (U.S. S.Ct.1972).

We need not here decide whether to adopt the Second Circuit's approach in every case. For here, although the precise issue had never been decided by the Supreme Court, recent decisions of that Court strongly suggested that the issue was foreclosed. In Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), the Court held that the standard of equal protection review applicable to welfare classifications was the reasonable relation test common to economic regulation. More directly relevant, in Macias v. Finch, 324 F. Supp. 1252 (N.D.Cal.1970), aff'd without opinion sub nom. Macias v. Richardson, 400 U.S. 913, 91 S.Ct. 180, 27 L.Ed.2d 153 (1970), the Court affirmed a three-judge district court opinion finding the denial of AFDC-U benefits to fully employed, but underpaid, individuals, not unreasonable given Congress' attempts to rectify that problem by other means, namely the minimum wage and labor relations laws. One could thus assume that a similar analysis would apply to AFDC-U itself, given the federal and state approach to the unemployment problem through the unemployment compensation and labor relations...