Public Interest Law & Policy

Public Interest Law & Policy Class 25 Ronald W. Staudt November 27, 2007

Appellate Litigation In the StatesFeaturing: Wednesday, November 28, 3:00pm 10th Floor Event Room Michael Scodro, Solicitor General, Illinois, Chicago-Kent College of Law William Marshall, Solicitor General, Ohio, University of North Carolina School of Law Barry Sullivan, Jenner & Block The discussion will focus on the increasingly important role of the office of state Attorneys General in interpreting constitutional law and in pursuing social and economic justice.

Appellate Litigation In the StatesFeaturing: • Michael Scodro has been a professor at Chicago-Kent College of Law since 2004. He is a former clerk for the Honorable Sandra Day O'Connor of the U.S. Supreme Court and the Honorable Jose A. Cabranes of the U.S. Court of Appeals for the Second Circuit. Professor Scodro was appointed to the position of Solicitor General of Illinois in July of 2007 by Illinois Attorney General Lisa Madigan • William Marshall has been a professor at the University of North Carolina School of Law since 2001. Professor Marshall taught at Case-Western Reserve University Law School from 1985 to 1999. In the Clinton Administration, he served as Deputy White House Counsel and Deputy Assistant to the President. Professor Marshall took the position of Solicitor General of Ohio in June 2007. • Barry Sullivan is a partner in the Chicago office of Jenner & Block. He served as a law clerk for Judge John Minor Wisdom of the United States Court of Appeals for the Fifth Circuit. Mr. Sullivan is Co-Chair of the firm’s Appellate and Supreme Court Practice. He has briefed and argued cases in the United States Supreme Court and in state and federal appellate courts throughout the United States and has published widely on constitutional law.

Today’s Assignment Read: King v. Smith, 392 U.S. 309 (1968)

King v. Smith • “At issue is the validity of Alabama's so-called "substitute father" regulation which denies AFDC payments to the children of a mother who "cohabits" in or outside her home with any single or married able-bodied man.”

King v. Smith Under the Alabama regulation, an "able-bodied man, married or single, is considered a substitute father of all the childrenof the applicant . . . mother" in three different situations: (1) if "he lives in the home with the child's natural or adoptive mother for the purpose of cohabitation"; or(2) if "he visits [the home] frequently for the purpose of cohabiting with the child's natural or adoptive mother"; or (3) if "he does not frequent the home but cohabits with the child's natural or adoptive mother elsewhere."

King v. Smith • What is frequent or continuing sexual relations? • Who has a duty to support children in Alabama? • Who is a parent under Alabama law?

King v. Smith-SSA and AFDC • aid to families with dependent children . . . shall be furnished with reasonable promptness to all eligible individuals . . . ." 64 Stat. 550

King v. Smith -SSA and AFDC • "dependent child," …is defined in § 406 of the Act, 49 Stat. 629, as amended, 42 U. S. C. § 606 (a) (1964 ed., Supp. II), as an age-qualified "needy child . . . who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with" any one of several listed relatives.

Impact of the regulation Mr. King, testified that since June 1964, when the "substitute father" regulation was promulgated, the Alabama Aid to Dependent Children rolls have been reduced by 16,000 children. Commissioner King's testimony on this point was as follows: "Q. Can you tell us the approximate number of recipients under the child eligible rule? A. Do you want it prior to the substitute parent policy? Q. Prior to and subsequent to.A. In June of 1964, there were 22,373 cases in Aid to Dependent Children. In June of 1964, there were 92,124 recipients: of these, 72,764 were children. In January of 1967, there were 71,228 total number of recipients under the ADC program; of which 56,822 were children."

DC Ruling- Rational Basis Test • The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.'

DC Ruling- excluded issues. • The expressed interest of the State of Alabama in not desiring to underwrite financially or approve situations which are generally considered immoral is a laudable one • The approval or disapproval of sexual promiscuity is not here involved. • While the plaintiffs placed considerable emphasis upon facts strongly indicating that the "substitute father" regulation was designed to discriminate and has the effect of discriminating against Negroes, by reason of the facts presented, this case does not rest upon racial considerations and therefore the decision should not rest upon such considerations. On the contrary, this decision should be and will be designed to enure to the benefit of all needy children regardless of their race or color.

King v. Smith—DC Holding The irrationality and the unreasonableness of the Alabama regulation is starkly revealed when it is realized that the regulation singles out from the Alabama needy dependent children a particular class who are illegitimate, or whose mothers engage in an illicit sexual relationship, or who have an illegitimate child born in their family, and for one or more of these reasons renders ineligible those children otherwise eligible to receive financial benefits under the Aid to Dependent Children program. This "substitute father" gains his parental status under the Alabama regulation not by any act of fatherhood to the children and not by any support furnished, but merely by having sexual relations with the mother. The regulation assumes that from the mother's alleged sexual relationship the man has assumed the role of the father to her children; this despite the fact that the man is not the father of the children, is not married to the mother, is not living in the home, owes no duty of fatherhood to the children and gives them no financial support or parental care.

King v. Smith -- DC Holding This Court concludes that the Alabama "substitute father" regulation is an arbitrary and discriminatory classification which results in the denial of financial benefits to needy children who are clearly eligible and entitled to receive such benefits under both the federal and State statutes and constitutional regulations and that said children are denied for reasons unrelated to and in conflict with the purposes of these statutes. For this reason, on its face and as the evidence reflects it has been applied in this case, the Alabama "substitute father" regulation deprives those children of the equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States.

Alabama argues: • Regulations defines who is a nonabsent “parent” under SSA • Legitimate way to allocate resources by reducing caseloads to help eligible more effectively • Regulation • discourages illicit sexual relationships and illegitimate births • Eliminates a potential marriage penalty.

S. Ct.--Not at issue in this case…. • There is no question that States have considerable latitude in allocating their AFDC resources, • The benefit levels vary greatly from State to State. For example, for May 1967, the average payment to a family under AFDC was about $ 224 in New Jersey, $ 221 in New York, $ 39 in Mississippi, $ 20 in Puerto Rico, and $ 53 in Alabama. • …if by reason of such a man's contribution, the child is not in financial need, the child would be ineligible for AFDC assistance without regard to the substitute father rule. • Also not involved in this case is the question of Alabama's general power to deal with conduct it regards as immoral and with the problem of illegitimacy.

Ala Regulation conflicts w/ SSA • In sum, Congress has determined that immorality and illegitimacy should be dealt with through rehabilitative measures rather than measures that punish dependent children, and that protection of such children is the paramount goal of AFDC. In light of the Flemming Ruling and the 1961, 1962, and 1968 amendments to the Social Security Act, it is simply inconceivable, as HEW has recognized, that Alabama is free to discourage immorality and illegitimacy by the device of absolute disqualification of needy children. Alabama may deal with these problems by several different methods under the Social Security Act. But the method it has chosen plainly conflicts with the Act.

King v. Smith-marriage penalty? • … the State argues that since in Alabama the needy children of married couples are not eligible for AFDC aid so long as their father is in the home, it is only fair that children of a mother who cohabits with a man not her husband and not their father be treated similarly. The difficulty with this argument is that it fails to take account of the circumstance that children of fathers living in the home are in a very different position from children of mothers who cohabit with men not their fathers: the child's father has a legal duty to support him, while the unrelated substitute father, at least in Alabama, does not. We believe Congress intended the term "parent" in § 406 (a) of the Act, 42 U. S. C. § 606 (a), to include only those persons with a legal duty of support.

King v. Smith—Douglas concurs • We do have, however, in this case a long-standing administrative construction that approves state AFDC plans containing a man-in-the-house provision. Certainly that early administrative construction, which so far as I can ascertain has been a consistent one, is entitled to great weight. E. g., Power Reactor Co. v. Electricians, 367 U.S. 396, 408.The Department of Health, Education, and Welfare balked at the Alabama provision only because it reached all nonmarital sexual relations of the mother, not just nonmarital relations on a regular basis in the mother's house. Since I cannot distinguish between the two categories, I reach the constitutional question.

King v. Smith—Douglas concurs • … the Alabama regulation is aimed at punishing mothers who have nonmarital sexual relations. The economic need of the children, their age, their other means of support, are all irrelevant. The standard is the so-called immorality of the mother. The other day in a comparable situation we held that the Equal Protection Clause of the Fourteenth Amendment barred discrimination against illegitimate children. We held that they cannot be denied a cause of action because they were conceived in "sin," that the making of such a disqualification was an invidious discrimination. Levy v. Louisiana, 391 U.S. 68. I would think precisely the same result should be reached here. I would say that the immorality of the mother has no rational connection with the need of her children under any welfare program.

Public Interest Law & Policy