United States Court of Appeals, Second Circuit.: No. 180, Docket 73-2010
Uploaded by
Scribd Government DocsUnited States Court of Appeals, Second Circuit.: No. 180, Docket 73-2010
Uploaded by
Scribd Government Docs494 F.
2d 107
Joanne FREDA, on behalf of herself and her infant children
Steven White, et al., Plaintiff-Appellee,
v.
Abe LAVINE, Individually and as Commissioner of the
Department of Social Services of the State of New York,
Defendant-Appellant, Jule M. Sugarman, Individually and as
Commissioner of the Department of Social Services of the
City of New York, Defendant.
No. 180, Docket 73-2010.
United States Court of Appeals, Second Circuit.
Argued Nov. 29, 1973.
Decided March 29, 1974.
John C. Gray, Jr., Brooklyn, N.Y. (Douglas J. Kramer and Brooklyn Legal
Services, Brooklyn, N.Y., on the brief), for plaintiff-appellee.
David R. Spiegel, Deputy Asst. Atty. Gen. (Louis J. Lefkowitz, Atty.
Gen., of N.Y. and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the
brief), for defendant-appellant.
Before MOORE, HAYS and TIMBERS, Circuit Judges.
HAYS, Circuit Judge:
In February, 1972 plaintiff applied on behalf of her three children for benefits
under the program for providing Aid to Families with Dependent Children
(AFDC). Pursuant to a New York regulation, 18 N.Y.C.R.R. 352.31(a) (2),1
defendant included in its computations of the children's needs a credit
consisting of all the income of Freda, the children's stepfather, without
inquiring whether that income was actually available to the children. Plaintiff
brought this action to challenge this regulation and the denial of benefits.
Plaintiff asserted three claims under the constitution and invoked jurisdiction
under 28 U.S.C. 1343(3) and (4) (1970). A fourth claim alleged a conflict
between the state regulation and a federal regulation.2 The district court held
that this claim did not fall within 28 U.S.C. 1343(3) and (4), but that it could
hear the claim under the doctrine of pendent jurisdiction. The district court held
that the New York regulation did contravene the federal regulation and
therefore enjoined defendants from applying the New York regulation.
3
On this appeal we do not reach the merits, but hold that the district court should
have abstained pending clarification of state law by the state courts.
The attitude of the Supreme Court toward the abstention doctrine has changed
markedly from time to time.3 Often the Court has failed to elaborate its reasons
for its decisions on crucial aspects of the doctrine. See H. M. Hart & H.
Wechsler, The Federal Courts and the Federal System 991 (Bator et al. 2d ed.
1973). It is clear, however, that abstention is a discretionary power of a court of
equity faced, as was the district court here, with a prayer for an injunction.
Railroad Commission v. Pullman Co., 312 U.S. 496, 500-501, 61 S.Ct. 643, 85
L.Ed. 971 (1941).
Appellee contends that abstention is unnecessary because the state law is clear.
However, several recent New York state court decisions involving the identical
issues presented here seem to contradict that claim. In In re Slochowsky, 73
Misc.2d 563, 342 N.Y.S.2d 525 (Sup.Ct., Nassau Co., 1973), the court
described the New York provisions for support of children by stepparents as 'a
confusing statutory scheme.' Id. at 564, 342 N.Y.S.2d at 527.
Theree other recent New York cases have dealt with the same claims presented
here. In Uhrovcik v. Lavine, No. 72-232 (Sup.Ct., Tompkins Co., 1973)
(unreported), aff'd, App.Div., 352 N.Y.S.2d 529 (3rd Dep't 1974), the court
noted the Commissioner's claim that New York law does impose a general
support obligation on stepparents and rejected that position. However, in two
other cases New York courts apparently held that the New York law imposes
on stepparents an obligation of support. Crawford v. Sugarman, 169 N.Y.L.J.
Jan. 4, 1973, at 19, col. 2 (Sup.Ct., Bronx Co., 1973); Wallace v. Lavine, 170
N.Y.L.J. Aug. 10, 1973, at 2, col. 3 (Sup.Ct., N.Y. Co., 1973). The absence of
written opinions makes it difficult to determine the bases for these decisions.
We cannot assume that they do not entail interpretations of state law which
might eliminate or modify the federal question before us.
Furthermore, the state courts of New York have exhibited a willingness to
interpret the state's statutes so as to avoid any doubts about their
constitutionality. See Spahn v. Julian Messner, Inc., 21 N.Y.2d 124, 127, 286
N.Y,S.2d 832, 834, 233 N,E.2d 840, 842 (1967); People v. Kaiser, 21 N.Y.2d
86, 103, 286 N.Y.S.2d 801, 815, 233 N.E.2d 818, 828 (1967); Bell v.
Waterfront Commission, 20 N.Y.2d 54, 62-63, 281 N.Y.S.2d 753, 760-761, 228
N.E.2d 758, 763 (1967); People v. Epton, 19 N.Y.2d 496, 505-506, 281
N.Y.S.2d 9, 16-17, 227 N.E.2d 829, 834 (1967); People v. Finkelstein, 9
N.Y.2d 342, 344-345, 214 N.Y.S.2d 363, 364-365, 174 N.E.2d 470, 472
(1961).
8
Thus the relevant New York law is at least somewhat cloudy. The lack of
clarity is central to this case. State appellate courts may interpret statutes on
which the Commissioner relies to impose a general support obligation on
stepparents, thereby eliminating the federal issue. Short of this they may still
modify the federal issue. The Supreme Court has often authorized abstention
where it might modify or alter the federal question or present it in a different
posture. Zwickler v. Koota, 389 U.S. 241, 248-239, 88 S.Ct. 391, 19 L.Ed.2d
444 (1967); Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 14
L.Ed.2d 50 (1965); County of Allegheny v. Frank Mashuda Co., 360 U.S. 185,
189, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959). The parties here disagree as to what
degree of support obligation the state must impose on a stepparent in order to
satisfy the federal regulation. If forced to rely on our own interpretation of state
law, we may face a difficult federal question in resolving this disagreement. A
state court may interpret state law so as to render the federal question
considerably easier.
Abstention will not impose any additional expense on plaintiff. Plaintiff need
not institute an independent action in state court. Others have already
commenced state suits raising the same claims. Compare County of Allegheny
v. Frank Mashuda Co., supra. In Reid v. Board of Education, 453 F.2d 238, 243
n. 9 (2d Cir. 1971), this court said that 'although the abstention doctrine does
not depend upon the pendency of a state court action . . . there is greater reason
to abstain when a state court decision may be imminent.'
10
We therefore vacate the decision of the district court and remand. We direct the
district court to retain jurisdiction of the case pending resolution of the state law
issues by state courts. See Zwickler v. Koota, supra, 389 U.S. at 244 n. 4, 88
S.Ct. 391 (1967); Reid v. Board of Education, supra, 453 F.2d at 244.
The regulation reads in pertinent part:
'352.31 Estimate of need and application of income. (a) For applicant or
recipient.
. . . .tim
'(2) All available and unrestricted income of an applicant or recipient and of the
spouse, if in the home, including support payments required to be made by a
parent pursuant to an order of the family court or other appropriate court, shall
be prorated and applied against the needs of the applicant, the spouse and the
minor children of either or both . . ..'
2
The federal regulation, 45 C.F.R. 233.90(a), reads:
'233.90 Factors specific to AFDC.
'(a) State plan requirement. A State plan under title IV-A of the Social Security
Act (relating to AFDC grants) must provide that the determination whether a
child 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,
or (if the State plan includes such cases) the unemployment of his father, will
be made only in relation to the child's natural or adoptive parent, or in relation
to the child's stepparent who is ceremonially married to the child's natural or
adoptive parent and it legally obligated to support the child under State law of
general applicablity which requires stepparents to support stepchildren to the
same extend that natural or adoptive parents are required to support their
children. Under this requirement, the inclusion in the family, or the presence in
the home, of a 'substitute parent' or 'man-in-the-house' or any individual other
than one described in this paragraph is not an acceptable basis for a finding of
ineligibility or for assuming the availability of income by the State. In
establishing financial eligibility and the amount of the assistance payment, only
such net income as is actually available for current use on a regular basis will
be considered, and the income only of the parent described in the first sentence
of this paragraph will be considered available for the children in the household
in the absence of proof of actual contributions.'
During the era of the Warren Court application of the doctrine was narrowly
limited. See Reid v. Board of Education, 453 F.2d 238, 241 (2d Cir. 1971);
Note, Federal-Question Abstention: Justice Frankfurter's Doctrine in an
Activist Era, 80 Harv.L.Rev. 604, 606 (1967). But cases like Reetz v.
Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970), and Askew v.
Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971), indicate a greater
tendency to resort to abstention. See Reid v. Board of Education, supra, 453
F.2d at 242; H. M. Hart & H. Wechsler, The Federal Courts and the Federal
system 993 n. 3 (Botor et al. 2d ed. 1973)
