Westberry v. Fisher Plaintiff's Supplementary Brief

    V -

UNITED STATES DISTRICT COURT 
DISTRICT OP MAINE 
SOUTHERN DIVISION

RICHARD A. WESTBERRY, ET ALS. ]
]

Plaintiffs ]
] CIVIL ACTION

v. ]
] No. 10-80

DEAN FISHER* M. D., ET ALS. ]
]

Defendants ]

PLAINTIFF'S SUPPLEMENTARY BRIEF IN 
SUPPORT OF THEIR CLAIM FOR BENEFITS 
ILLEGALLY WITHHELD AND FOR DAMAGES



TABLE OF CONTENTS

TABLE OF AUTHORITES.............................   ii
ISSUES PRESENTED.....................................  vii
STATEMENT OF THE CASE................................  1
ARGUMENT.............    8

II
BOTH EQUITY AND COMMON LAV/ REQUIRE 
THAT THE DEFENDANTS RECOMPENSE THE 
PLAINTIFFS FOR THE LOSSES THEY IN­
FLICTED....................................... 8

III
FEDERAL AND STATE ADMINISTRATIVE 
REGULATIONS REQUIRE THE DEFENDANTS 
IN THEIR OFFICIAL CAPACTITIES TO 
BE ORDERED TO RECOMPENSE THE IL­
LEGAL LOSSES INFLICTED ON THE 
PLAINTIFFS BY THE ENFORCEMENT OF
THE UNCONSTITUTIONAL REGULATIONS.............. 17

IV
42 U .S.C.§1983 REQUIRES THE DE­
FENDANTS, INDIVIDUALLY AND SEVERAL­
LY , TO RETURN MONEYS UNCONSTITUION- 
ALLY WITHHELD AND TO RECOMPENSE 
OUT-OF-POCKET EXPENSES FOR MEDICAL 
COVERAGE AND LOSS OF WAGES CAUSED 
BY THE ENFORCEMENT OF THE UNCON­
STITUTIONAL REGULATIONS....................... 26

V
CLASS JUDGEMENT

THIS COURT CAN AND SHOULD ISSUE A 
JUDGEMENT THAT THE DEFENDANTS ARE 
LIABLE TO ALL MEMBERS OF THE PLAIN­
TIFF CLASS IN THE AMOUNT OF MONEYS 
ILLEGALLY WITHHELD AND FOR COMPEN­
SATORY DAMAGES SUSTAINED......................  36

CONCLUSION........... ................................ 45
APPENDIX A
APPENDIX B



T A B L E  O F  A U T H O R  I T I E S

Cases Page

Alvarez v. Hackney, ___ F.Supp.___ (N.D.Tex. 33, 4ls
Sept. 30, 1969)............................... 42, 44
Bell V .  Hood, 327 U.S.678 (1946).............. 40, 4l
Board of Social Welfare v. Los Angeles
County, 27 Cal.2d 90, 162 P.2d 630 (1945)____ H
Baslsta v. Weir, 340 F.2d 74 (3rd Cir. 1964) ... 25
Board of Trustees of Arkansas A & M College
v. Davis, 396 F .2d 730 (8th Clr. 1968) .....___ 12, 13
Capercl v. Huntoon, 397 F.2d 799 (1st Clr.
1968)  ....... ............................... 1 0, 11

Chambers v. Henderson County Board of Education,
364 F . 2d 189 (4th Cir. 1966).................. 28
Cherner v. Transitron Electronic Corp., 221
F.Supp. 48 (D.Mass . 1963)..................... 40
Cobb v. City of Malden, 220 F.2d 701 (1st
Cir. 1953)....................... ............. 24, 28,

30, 31
Collins v. State Board of Social Welfare,
248 Iowa 369, 8l N.W.2d 4 (1957).......... 3, 26, 31

Damico v. California, 389 U.S.416 (1967).... 24, 33
Doe v. Shapiro, 302 F.Supp.761 (D.Conn.
1969) (three-judge court)...................... 20
Department of Employment v. United States,
385 U.S.355 (1966) ............................  10

Eisen v. Carlisle and Jacqueline Corp.
391 F . 2d 555 (2nd Cir. 1968) .................. 39
Ex parte Young, 209 U.S.123 (1907).............. 12* 13,14

Ferguson v. Noe, 364 S.W.2d 650 (Ky.1963)....... H
Gaddis v. Wyman, ___ F.Supp.___ (S.D.N.Y.
decided Sept. 25, 1965) ............. 33, 41

ii



Gomez v. Florida State Employment Service,
___ F.2d ___ (5th Cir., decided Oct. 4, 1969) .... 33
Glover v. St. Louis-San Francisco Railroad
Company, 89 S.Cr.548 (1969).......................  24
Gregoire v. Biddle, 177 F.2d 579 (2nd Cir.
1949) 3 cert. den. , 339 U.S.949 (1950).............. 11
Hogue v. Commissioner of Economic Security,
407 S. W . 2d 437 (Ky. 19 66)..........................  11
J.I. Case Co. v. Borak, 377 U.S.426 (1964)..... 10, 25,

40, 44
Johnson v. Branch, 364 F.2d 177 (4th Cir.
1966) ............................................. 27
King v. Smith, 392 U.S.309 (1968) ............ 14, 20,

23
Larson v. Domestic & Foreign Commerce
Corp. 337 U.S. 682 (1949) ........................ 14
Louisiana v. United States, 380 U.S.
152 (1965)........................................  10

Machado v. Hackney, 299 F.Supp.644
(W.D.Tex. 1969) (3-Judge Court)................. 33, 42
Marshall v. Sawyer, 301 F.2d 639 (9th
Cir. 1962) ........................   30
Meyers v. Anderson, 238 U.S. 368 (1 9 1 5)............  32
Michaud v. City of Bangor, 159 Me.491, 196
A. 2d 106 (1963)...................... . . . .......... 32
Miller v. Horton, 152 Mass.540, 26 N.E.
100 (1891)............................. ......... 8. 29
Monroe v. Pape, 365 U.S.107 (I960)........... 11
Nixon v. Herndon, 273 U.S.536 (1927)............ 32
Norton v. McShane, 332 F.2d 855 (5th Cir.
1964), Cert, den., 380 U.S. 981 (1965)-.............. 29
Parrish v. Civil Service Commission, 66
Cal.2d 260, 425 P.2d 223, 57 Cal.Rptr,..........
623 (1967) 33

iii



Pierson v. Ray, 386 U.S.550 (1967)................ 30
Public Utilities Commission of Ohio v.
United States Fuel Gas Co. 317 U.S.456 (1943) ..... 19
Rolfe v. County Board of Education, No. 17498
(6th Cir. decided February 19, 1968) %.... 28
Robinson v. Shapiro, 302 F.Supp.842 (D.D.C.
1969) (three-judge court) .......................... 20
Sherbert v. Verner, 374 U.S.398 (1963) ......... 8, 9
Smith v. Board of Education of Morrilton
County, 365 F.2d 770 (8th Cir. 1966) .............. 28
Soloman v. Shapiro, 300 F.Supp.76l (D.C.
Conn.1969) (three-judge court)........-.......... 20
Sterling v. Constantin, 287 U.S.378
(1932)........................................... 30
Sweeney v. Young, 82 N.H.159, 131 A.155,
42 A.L.R.751 (1893).............................. 29
Tenney v. Brandhove, 341 U.S.367 (1957) ...... 30, 31
Thompson v. Shapiro, 270 F.Supp.331
(D.C.Conn), aff'd 89 S.Ct. 1332 (1969) ....... H ,  33
Thorpe v. Housing Authority, ___U.S.___,
37 U.S.L.W. 4068 (1969) ....................... 19, 20
Union Carbide and Carbon Corporation v.
Unnamed Plaintiffs, 300 F.2d 561 (10th Cir.
1961), cert, dism.,371 U.S.801 (1962) ......... 39, 44
United States v. Alabama, 362 U.S.602 (1959) •••••• 19
Wall v. Stanley County Board of Education,
378 F. 2d 275 (4th Cir.1967)......................  28
Ward v. Board of County Commissioners of
Love County, 253 U.S.17 (1920)-'................. 9, 10,

15, 16

Westberry v. Fisher, 297 F.Supp.1109
(D.Me.1969)................................... 2, 5, 9,

24, 31

iv



Eleventh Amendment.................................. 12
Fourteenth Amendment.....................    13

STATUTES
42 U.S.C. § 1902. . ...........     22
42 U.S.C. § 1905..................................22

42 U.S.C. § 1909...   23
42 U.S.C. § 1983...........................-15 25 j 26,

27, 29 3 30 j . 
32, 33,35

FEDERAL HANDBOOK OF PUBLIC ASSISTANCE
§ 6200 ( k ) .................................. 4, 17, 21 j

23
§ 6500 (a).......................................... 18

STATE LETTER 1048.....................................18
FEDERAL RULES OF CIVIL PROCEDURE

Rule 23.................................... . - 37, 39,40,
4 3, 44

Rule 53........................................... .41
MAINE PUBLIC ASSISTANCE MANUALS

Payments Manual.........   ................5, 18,
19, 21, 22

Procedural Manual........................ .........4, 22
TEXTS AND TREATISES

Emerson, Haber and Dorsen, Political and 
Civil Rights in the United Sjtates_, (3rd ed.
1967) Vol. II....................................... 27
Jaffe, Judicial Control of Administrative
Action (1965).........  8. 16
Kaplan, A Prefatory Note, 10 B.C.Ind.&Com.
L.Rev • 497" (1969) .. ..... ..*••••..... ...........37 , 43

UNITED STATES CONSTITUTION

v



Klaven & Rosenthal, The Contemporary Function 
of the Class Suit* 8 U.of CHI.L.Rev.684 (1941) 38

Jennings, Tort Liability of Administrative
Officers , 21 Minn.L.Rev. 263 (1937)........'=.....29, 32
Prosser, Torts (2nd ed. 1 9 5 5  ...............32
Public Assistance Under the Social Security Act
(1966)..........................................16 , 22
Note, Damages in Class Actions: Determination 
and Allocation, 10 B .C.Inc.&Com.L.Rev.615,
624 (1969). .....................................38, 44
Comment, Comity, Official Immunity and the
Dilemma of § 1983, 1967 DUKE L.j .741................30
Note, Developments in the Law-Equal Protection,
82 Harv.L.Rev. IO65 (1969). . . ..... ...............9, 32
Note, Proper Scope of the Civil Rights Acts,
66 Harv.L.Rev. 1285 (1953)................. .....29, 30

31

vi



THE ISSUES PRESENTED

The Report of Further Pre-trial Conference and Order 
(On Damages) set for briefing the following issues.

(1) May the Court award plaintiffs back benefits and 
support moneys illegally withheld?

a. Under federal and state "fair hearing" regula­
tions cited?

b. Under 42 U.S.C.§1983?
c. Under general equity principles?

(2) May the Court award consequential damages (such as 
lost Medicaid coverage and/or lost wages)?

a. Under federal and state regulations?
b. Under 42 U.S.C.§1983?
c. Under general equity principles?

(3) Are defendants personally liable for the return of 
moneys withheld, or for damages?

(4) Are the defendants liable in their official capacities 
If they are, may judgement issue in the absence of a prior 
appropriation by the Legislature of the State of Maine?

(5) May the Court award damages to any member of the 
class other than those who have intervened in the action by 
September 15s 1969?

vii



UNITED STATES DISTRICT COURT

DISTRICT OF MAINE 
SOUTHERN DIVISION

RICKARD A. WESTBERRY, ET ALS. ]
]

Plaintiffs ]
] CIVIL ACTION

v. ]
] No. 10-80

DEAN FISHER3 M. D., ET ALS. ]
]

Defendants ]

PLAINTIFFS' SUPPLEMENTARY BRIEF IN 
SUPPORT OF THEIR CLAIM FOP BENEFITS 
ILLEGALLY WITHHELD AND FOR DAMAGES

I
STATEMENT OF THE CASE

The complaint in this action was filed on Anril 18,
1968 5 and a temporary restraining order oending the decision 
in the case was prayed for. Causes of action were stated 
under the Equal Protection, Due Process, and Privileges and 
Immunities Clauses of the United States Constitution, under 
42 U.S.C.§198l, under 42 U .S.C.§1983, and under the Social 
Security Act. On July 15, 1968, a three-judge court was 
ordered convened. On the same day the plaintiffs' motion for 
a temporary restraining order was denied because of the possi­
bility of undue interference with the operation of the state



-2-

AFDC Program, even though it was exnressly found that a sub­
stantial constitutional question had been presented and that 
the plaintiffs would continue to suffer irreoarable injury.
On September 17, 1968, the Court ordered that the case proceed 
as a class action. (Report of Pre-Trial Conference and Order, 
September 17, 1968). The Court also ordered on the same day 
that the case proceed upon the prayer for an injunction and 
that the determination of retroactive payments and damages be 
deferred. The parties, nevertheless, filed briefs on the 
question of damages prior to the Court’s decision on the prayer 
for an injunction.

On March 21, 1969, the Court rendered its decision.
297 F.Supp.1109 (D.Me.1969). Both of the challenged regula­
tions were held to ‘'plainly conflict' with the Equal Protection 
Clause and relief was rendered pursuant to 42 U.S.C.§1983.
The Court did not reach the question of whether the challenged 
regulations also violated 42 U.S.C.§198l (right to work), the 
Social Security Act, the Due Process, or the Privileges and 
Immunities Clauses of the Fourteenth Amendment. 297 F.Supp. 
at 111, fn.2. On April 14, 1969, the defendants were perma­
nently enjoined from enforcing the challenged regulations. By 
May they had made reasonable efforts to correct the payments 
of most of the members of the class.

Public notice that certain families were claiming retro­
active benefits was ordered to be made in the Portland and



3-

Bangor newspapers six times each during July and August, 1969. 
(Order, August 25, 1969). The notices provided that persons 
wishing to make claims would have to do so before September 2, 
1969. The Court subsequently extended this time until Seotem- 
ber 15. The three-judge court was then dissolved and the case 
was remanded to a single Judge.

The most recent statistics available showed that ap­
proximately 1500 families in the State of Maine had had their 
"actual budgets" reduced to the regulatory maximum of $300.00 

per month. It was shown that 52 families were receiving the 
regulatory maximum grant of $250.00. (Stinulations of Fact, 
September 17, 1968). It was stipulated that the plaintiffs' 
desired to be free to work to increase their incomes without 
sustaining reductions in their AFDC grants. It was further 
stipulated that the "maximum grant" regulation had been en­
forced since 1954“ the "maximum budget" regulation, since 1956. 
Neither has ever been submitted to the Attorney General of Maine 
for approval as to legality. (Stipulations of Fact, Septem­
ber 10, 1969)- The Court may take notice that the case of 
Collins v. State Board of Social Welfare, 248 Iowa 369, 8l N.W. 
2d 4 was decided in 1957 and presented the same maximum grant 
issue as is presented by the Maine regulation.

The parties before the Court at this time are the two 
named plaintiffs, 50 additional intervenors represented by at­
torneys from Pine Tree Legal Assistance, Inc. and two additional



intervenors represented by other counsel. Three intervenors 
have dismissed their motions to intervene. (Fogg, Goudreau, 
and Saucier). The named plaintiffs and these 50 intervenors, 
realizing the great burden to the State that would be caused 
by a judgement retroactive to the date they began receiving 
AFDC, agreed to stipulate that the date of the filing of the 
complaint would be the date s incorrect action'1 was taken with­
in the meaning of Federal Handbook of Public Assistance Admini­
stration , (hereinafter Federal Handbook) Part IV, Section 
6200 (k). (See Appendix A). The money judgements nrayed for 
fall into four categories: (1) suoport moneys collected by
the Attorney-General* (2) AFDC benefits withheld* (3) out- 
of-pocket expenses for medical attention* and (4) loss of 
wages.

First, support moneys are collected by Assistant Attor- 
neys-General assigned to the Department of Health and Welfare. 
They cooperate with the Welfare Resources Unit of the Deoartment 
and both initiate and enforce court orders of support in favor 
of children receiving AFDC. Maine Public Assistance Procedural, 
Ch. Ill, Section A, pp.1-2 (Rev. 7/1/68). The Department then 
transfers to the AFDC client all or part of the moneys collect­
ed, provided a deficit exists between requirements and assist­
ance payments. The assistance payments worker, the same agent 
of the Department who determines the amount of the grant, 
authorizes the division of Accounts and Audit to transfer said

-4-



-5-

moneys to the recipients. Such transfers are called 'Deficit 
Payments". Maine Public Assistance Payments Manual, Ch. IV, 
Section B, p. 3 (Rev. 2/1/69). An example of the working of 
this procedure in the case of large families is illustrated 
by intervenor Betty Byrd. Her grant was $245.00 per month.
Thus, applying the ''maximum budget" regulation of $300.00, 
her deficit was $55.00 per month. The Department collected 
from Mrs. Byrd's former husband a great deal more than $55.00 
per month, but transferred only that amount to her. (Motion 
to Intervene of Betty Byrd). Thus, the Department withheld 
from June, 1968, until April, 1969, $929.00 that they had col­
lected from Mr. Byrd. (Stipulations of the Parties With Re­
spect to the Claim of Plaintiff-Intervenor Betty Byrd). The 
total of such moneys claimed by all of the named plaintiffs 
and named intervenors is $2,752.00

Secondly, AFDC benefits proportional to family size arc- 
withheld when the total income to the family would be over 
$300.00 per month and/or when the grant would be over $250.00. 
This procedure is clearly set out in the prior opinion of this 
Court. 297 F.Supp. at 1113- An example of this procedure is 
plaintiff-intervenor Margaret Campbell. Although she had a 
family of nine, she received a payment of only $214.00 per 
month during two months because she had income of $86.00 during 
those two months. During the months when she had no income, 
although the regular formula would have granted her $272.00



-6-

per month, she received only $2^5.00 per month. (Motion to 
Intervene of Margaret Campbell, undenied). As a result, from 
April, 1968. until April, 19695 she received $20̂ 4.00 less In 
AFDC benefits than she would have received but for the two 
regulations. (Stipulations of the Parties With Respect to 
the Claim of Plaintiff-Intervenor Margaret Campbell). The 
total of such benefits claimed by all of the named plaintiffs 
and named intervenors represented by the attorneys of Pine Tree 
Legal Assistance is $ MX, 11*?, 00.

Thirdly, out-of-pocket expenditures for medical attention 
are claimed by two Intervenors, Berube and Martel. Under the 
maximum budget regulation no matter what the size of the fami­
ly, if the income is more than $300.00 per month AFDC is ter­
minated. The case of Bertrand 0. Berube illustrates this.
When his family of eleven began receiving Old Age, Survivors 
and Disability Insurance of $328.00 oer month their AFDC was 
terminated in toto. Thus, they lost their medical coverage 
under the Maine Medicaid Program. In order to obtain medical 
coverage they expended from their income of $328.00 per month 
$15.80 each month for a Blue Cross/Blue Shield medical insurance 
program. (Stipulations of the Parties With Respect to the 
Claim of Plaintiff-Intervenors Bertrand 0. Berube and Therese Y. 
Berube). They claim a total of $189.00 and the Martels claim 
$20.00.



-7-

Fourthly, loss of wages are claimed as a result of the 
'■’maximum budget” regulation. The result of the enforcement 
of this regulation is that a family of nine, who would be en­
titled according to the formula to a grant of $297.00 per month 
is permitted to have outside earnings of only $3.00 pc-r month. 
Additional computed earnings are deducted from the grant. An 
example of the operation of this regulation is the case of 
June Martin (Stipulations of the Parties With Respect to the 
Claim of Plaintiff June Martin). See Infra pp.23-4. Mrs. Mar­
tin's claim is for $1,400.00 and is the only claim in this catc 
gory.

All of these damages claimed have been submitted upon 
stipulations. This brief is filed on behalf of the two named 
plaintiffs and fifty (50) intervenors represented by attorneys 
of Pine Tree Legal Assistance, and on behalf of all members of 
the class. This brief both supplements and suoersedes plain­
tiffs' prior brief filed February 7, 1969.



-8-

II
BOTH EQUITY AND COMMON LAW REQUIRE 
THAT THE DEFENDANTS RECOMPENSE THE 
PLAINTIFFS FOR THE LOSSES THEY IN­
FLICTED.

A. Argument:
Having set out above at pp. 3-7 the four categories of 

losses caused by the defendants, no extensive legal analysis 
is necessary to demonstrate that law and equity require the 
defendants to return the moneys they withheld. In referring 
to cases similar to the present one Louis L. Jaffe, in his 
Judicial Control of Administrative Action (Little, Brown, and 
Co., Student Ed., 1965)5 says, "There are certain cases where 
the need and justification for compensation are so patent that

1/
recovery has been traditional without elaborate justification. 
Thus, in Miller v. Horton, 152 Mass 540, 26 N.E. 100 (1891), 
Justice Holmes held that three state health officers who killed 
the plaintiff's healthy horse upon the belief that it was dis­
eased were required to compensate the owner. Otherwise the

2/
State would be taking property without due process of law.
It is, of course, no answer to say that welfare benefits are 
not "property rights'1 after Sherbert v. Verner, 374 U.S. 398 
(1963) has said:

Nor may the South Carolina court’s 
construction of the statute be saved

\7 Id. at p. 249
2/ See Jaffe*s discussion of this case at p. 249, Judicial 
Control of Administrative Action.



-9-

from constitutional infirmity on the 
ground that unemployment compensa- 
tion are not appellant’s "right but 
merely a "privilege . It is too late 
in the day to doubt that the liberties 
of religion and expression may be in­
fringed by the denial of or placing 
of conditions upon a benefit or privi­
lege. Id. at 404.

This Court has recognized the futility of drawing such dis­
tinctions where constitutional rights have been infringed. 
Westberry v. Fisher, 297 F.Supp. 1109, 1115-1116 (1969). Of 
course, if one were to apply the "privilege-rightanalysis in 
spite of its demise, the result would probably be that the 
support moneys payable by court order to the minor plaintiffs 
and the wages lost would be characterized as "property" rights. 
The plaintiffs reject that analysis.

The return of AFDC moneys and support moneys are not 
properly called "damages". 'When improperly collected taxes 
are returned to a plaintiff, the remedy is characterized not 
as damages but as a refund of money held for the claimant.' 
Developments in the Law - Equal Protection, 82 HARV. L. REV. 
1065, 1135 fn. 17 (1969). In Ward v. Board of County Commis­
sioners of Love County, 253 U.S. 17 (1920) sixty-six Indians 
sued a county to recover taxes illegally collected on non- 
taxable Indian land. The Supreme Court of Oklahoma held that 
the taxes had been voluntarily paid and that there was no 
state statute making the county liable to return the taxes 
they had illegally collected. The United States Supreme Court



-10-

reversed saying that the payments were not voluntary, and held:
As the payment was not voluntary, 
but made under compulsion, no sta­
tutory authority was essential to 
enable or require the county to 
refund the money. It is a well 
settled rule that 'money got through 
imposition" may be recovered back-, 
and, as this court has said on 
several occasions, "the obligation 
to do justice rests upon all per­
sons. natural and artificial, and 
if a county obtains the money or 
property of others without authori­
ty, the law, independent of any 
statute will compel restitution or 
compensation.1 [citations omitted]
To say that the county could collect 
these unlawful taxes by coercive 
means and not incur any obligation 
to pay them back is nothing short 
of saying that it could take or 
appropriate the property of these 
Indian allottees arbitrarily and 
without due process of law. Of 
course this would be in contra­
vention of the Fourteenth Amendment 
which binds this county as an agency 
of the state. 253 U.S. at 24.

In Department of Employment v. United States, 385 U.S. 355 
(1966) the result was the same. The Red Cross won a judgement 
from a three-judge federal court for $10,000.00 in taxes illegal­
ly collected by the State of Colorado, in the absence of any 
state statute authorizing suit. The Supreme Court affirmed.

These cases illustrate the doctrine that federal courts 
have not merely the power but the duty "to provide such remedies 
as are necessary to make effective the Congressional purpose."
J. I. Case Co. v. Borak, 377 U.S. 426, 433 (1964), see infra 
at p. 40; Louisianna v. U. S. 380 U.S. 152, 154 (1965)* Caperci



-11-

V .  Huntoon, 397 F.2d 799 3 801 (1st Clr.1968).
This doctrine Is also applied in state courts in dis­

putes about retroactive welfare benefits. Shapiro v. Thompson,
3/

270 F.Supp. 331 (E.D.Penn.1967), affirmed 89 S.Ct.1332 (1969)' 
Board of Social Welfare v. Los Angeles County, 20 Cal.2d 90,
162 P.2d 630 (1945); Ferguson v. Noe, 364 S.W.2d 650 (Ky.1963)' 
Hogue v. Commissioner of Economic Security, 407 S.W.2d 437
(Ky.1966).

In Board of Social V/elfare v. Los Angeles County, supra, 
the Supreme Court of California considered several cases involv­
ing claims for retroactive payments, and issued a peremptory 
writ of mandate ordering the county board to make assistance 
payments retroactive to the date the recipients were erroneous­
ly denied public assistance. In analyzing one of the cases 
the court wrote:

In the case now before us we are of 
the view that the provisions for ap­
peal to the State Social V/elfare 
Board and for the payments, if 
awarded, to commence from the date 
the applicant was first entitled 
thereto likewise serve a clear 
public purpose by securing to those 
entitled to aid the full payment 
thereof from the date***[they were] 
first entitled thereto regardless 
of errors or delays by local auth­
orities. It was the mandatory 
duty of the county to furnish aid 
according to the plan therefor 
which is laid down by the appli-

3/ Note that the three-judge court granted retroactive benefits 
prior to the effective date of the federal fair hearing regula­
tion discussed in Point III of this brief.



-12-

cable provisions of the Welfare 
and Institutions Code [citations 
omitted]. The obligation to pay 
became a debt due from the county 
to the applicant as of the date 
the latter was first entitled to 
receive the aid [citations omit- 
ted]. ~ The bare fact that an ap­
plicant has by one means or another 
managed to ward off starvation 
pending receipt of the payments to 
which he was previously entitled 
provides no sufficient excuse for 
a county to refuse to make such 
payments. To hold otherwise 
would, as suggested by petitioner 
herein, provide a money-saving 
device for the counties at the 
expense of those of our citizenry 
least able to bear the burden 
thereof. [emphasis added].
165 p.2d at 633-

Thus, federal and state decisional law supports the plain­
tiffs’ claims for money withheld. This Court should adopt the 
reasoning of the California Supreme Court that the obligation 
to pay became a debt due" from the AFDC budget.

B_. The Eleventh Amendment:
The Court should not hold the State of Maine or the De­

partment immune, even if it finds merit to the argument of the 
defendants that this is a suit against state officers in their 
official capacity, and thus, a suit against a state agency. The 
state may not immunize its officers to violate the United States 
Constitution. Ex parte Young, 209 U.S.123 (1907)- Board of 
Trustees of Arkansas A & M College v. Davis, 396 F.2d 730 (8th 
Cir. 1969). The latter case was an action by a former faculty



-13-

member against a board of trustees of a state college for
damages following the termination of plaintiff's status as
a faculty member. A three-circuit judge court held that the
suit was not barred by the Eleventh Amendment. It wrote:

Plaintiff does not dispute that Arkan­
sas A & M College is a state agency.
He stands on the proposition, however, 
with which we agree, that sovereign 
immunity does not extend to state or 
federal officials who act beyond their 
authority or in violation of the Uni­
ted States Constitution.
The foundation case is Ex parte Young 
209 U.S. 123,28.Shot.441, 52 L.Ed.714 
(1909), where the Supreme Court held 
that a suit against the Attorney Gener- 
a of Minnesota to enjoin the enforce­
ment of an unconstitutional state 
statute did not violate the orohibi- 
tion of the Eleventh Amendment. In 
rejecting the claim of state immunity 
the court announced this basic principle:

"The act to be enforced is alleged 
to be unconstitutional, and if it 
be so, the use of the name of the 
state to enforce an unconstitution­
al act to the injury of complain­
ants is a proceeding without the 
authority of and one which does 
not affect the state in its 
sovereign or governemntal capa­
city. It is simply an illegal 
act upon the part of a state of­
ficial in attempting, by the use 
of the name of the state, to en­
force a legislative enactment 
which is void because it is un­
constitutional. If the act 
which the state attorney general 
seeks to enforce be a violation 
of the Federal Constitution, the 
officer, in proceeding under such 
enactment, comes into conflict 
with the superior authority of 
that Constitution, and he is in



- m -

that case stripped of his 
character and is subjected in 
his person to the consequences 
of his individual conduct. The 
state has no power to impart to 
him any immunity from responsi­
bility to the supreme authority 
of the United States." 396 F.2d 
730, 732 (8th Cir. 1968),[foot­
notes omitted].

The plaintiffs will rely on Ex parte Young and the cases in 
which an official has sought to justify his action under an 
unconstitutional statute. See the list collected in the Ap­
pendix of Larson v. Domestic and Foreign Commerce Corporation, 
337 U.S. 682, 731 (19^9).

C. The State Appropriation:
It is well to point out also that no evidence has been

introduced to show that there are not presently funds in the
budget of the Maine State Department of Health and Welfare
to satisfy such judgement. Moreover, the AFDC program - -

. . . is financed largely by the 
Federal Government on a matching 
fund basis and is administered by 
the States. States are not re­
quired to oarticipate in the pro­
gram, but those who desire to take 
advantage of the substantial funds 
available for distribution to needy 
children are required to submit an 
AFDC plan for approval of the Sec­
retary of Health, Education, and 
Welfare. . . King v. Smith, 392 U.S.
309, 318 (1968).

Indeed, 65% of the welfare payments made under the state cate­
gorical assistance plan in Maine is federal tax money. Public



-15-

Assistance Under the Social Security Act, United States Depart
ment of HEW, Bureau of Family Services, p. 16 (1966). In an
official report published by the defendants, Characteristics
of Families and Children Receiving AFDC, Maine (Dec.,1967), it
was reported that 1[a]bout 75 per cent of the ADC payment is
reimbursed from federal funds. The argument that there has
been no state appropriation to make payments to the plaintiffs
for the period April, 1968, to April, 1969, is simply unproven

The real argument, again without any proof, is that
money may not have been reserved to pay a family $272.00 per
month rather than $250.00. But that argument is irrelevant.
In Ward v. Board of County Commissioners of Love County, 253
U.S. 17 (1920), supra, p. 9, the county that had illegally
collected taxes claimed that the money had been transferred to
the State and to local municipalities. There was no proof of
what amount the county had retained. The Supreme Court said;

If it be true, as the Supreme Court 
assumed, that a portion of the taxes 
was paid over, after collection, to 
the state and other municipal bodies, 
we regard it as certain that this did 
not alter the county’s liability to 
the claimants. The county had no 
right to collect the money, and it 
took the same with notice that the 
rights of all who were to share in 
the taxes were disputed by these 
claimants and were being contested 
in the ponding suits. In these cir­
cumstances it could not lessen its 
liability by paying over a portion 
of the money to others whose rights



-16-

it knew were disputed and were no 
better than its own. [citations 
omitted] In legal contemplation 
it received the money for the use 
and benefit of the claimants and 4/ 
should respond to them accordingly.

Equity and precedent require the defendants to undo the 
harm done.

T J  Id. at 24; see also Jaffe, Judicial Control of Administra­
tive Action, 249 (1965).



17-

III
FEDERAL AND STATE ADMINISTRATIVE 
REGULATIONS REQUIRE THE DEFENDANTS 
IN THEIR OFFICIAL CAPACITIES TO BE 
ORDERED TO RECOMPENSE THE ILLEGAL 
LOSSES INFLICTED ON THE PLAINTIFFS 
BY THE ENFORCEMENT OF THE UNCON­
STITUTIONAL REGULATIONS.

The losses inflicted upon the plaintiffs, which are des­
cribed above at pp. 3-7, may also be recompensed under the 
authority of federal and state regulations.
A_.__The Regulations and State Letter 1048.

During the pendency of this action, administrative regu­
lations by the United States Department of Health, Education 
and Welfare and the Maine Department of Health and Welfare 
have become effective. These regulations provide for fair 
hearings and retroactive payments of benefits wrongfully de­
nied. The HEW regulation is contained in the Federal Handbook 
and is attached as Appendix A. It provides:

§6200 Requirements for State Plans
A State plan for . . . AFDC . . . 
must provide that
(a) The agency will be respon­
sible for fulfillment of fair 
hearings provisions, and shall 
specify the hearing authority.
(k) When the hearing decision 
is favorable to the claimant, or 
when the agency decides in favor 
of the claimant prior to the hear­
ing, the agency will make the 
correct payments retroactively 
to the date the incorrect action 
was taken.



-18-

§6500 Federal Financial Participation
Federal financial participation is 
available in
(a) Payments made to carry out hear­
ing decisions, or to take corrective 
action prior to the hearing, includ­
ing corrected payments retroactively 
to the date the incorrect administra­
tive action was taken. Handbook Trans­
mittal No. 140, Feb. 2, 1968, (Effec­
tive Date, July 1, 1968).

After the promulgation of the above federal regulations, they 
were further interpreted by State Letter Mo. 1048 issued by 
the Commissioner of the Social and Rehabilitation Services 
of the Department of Health, Education and Welfare. It is 
attached as Appendix B. The letter discusses the retroactive 
payments made necessary by the decision of the United States 
Supreme Court in King v. Smith. It sets precise dates back to 
which every state must go in making retroactive payments and 
provides that the federal government will participate finan­
cially in making retroactive payments beyond the mandatory

dates where a state so elects.
The regulations of the Maine State Department of Health

and Welfare provide for fair hearings and retroactive payments
of benefits wrongfully withhold.

If the agency's original action is 
reversed or in' any other way modi­
fied causing a decision favorable 
to the claimant, the agency will 
take immediate steps to insure that 
within the 60 day period that cor­
rected payments are made retroac­
tively to the date the incorrect 
action was taken or to the date of



-19-

application, whichever was later.
Maine Public Assistance Payments 
Manual, Ch. I, Sec. C, p. 5 (Rev.
7/1/68).

Numerous decisions of the United States Supreme Court hold that 
a court must apply the law in effect at the time it renders 
decision. Thorpe v. Housing Authority, 89 S.Ct. 518 (1969)' 
United States v. Alabama, 362 U.S. 602 (1959)', Public Utilities 
Commission of Ohio v. United States Fuel Gas Co., 317 U.S.456 
(1943). In Thorpe the court held that the Housing Authority 
for the City of Durham was obligated to follow eviction pro­
cedures contained in a regulation enacted by the Department 
of Housing and Urban Development while the case was on appeal. 
The court wrote:

Chief Justice Marshall explained the rule over 
150 years ago as follows:

[I]f subsequent to the judgement 
and before the decision of the 
appellate court, a law intervenes 
and positively changes the rule 
which governs, the law must be 
obeyed or its obligation denied.
If the law be constitutional, . .
. I know of no court which can 
contest its obligation. It is 
true that in mere private cases 
between individuals, a court will 
and ought to struggle hard against 
a construction which will, by a 
retrospective operation, affect 
the rights of parties, but in 
great national concerns . . . 
the court must decide according 
to existing laws, and if it be 
necessary to set aside a judge­
ment, rightful when rendered, 
but in violation of the law, the 
judgement must be set aside.



-20-

This same reasoning has been applied where 
the change was constitutional, statutory 
and judicial. Surely it applies with equal 
force where the change is. made by an ad-, 
ministrative agency acting pursuant to leg­
islative authorization. 89 S.Ct. at 526.
[footnotes omitted].

In the present case, which is still at the trial level, 
the court is a fortiori required to give effect to the HEW and 
state regulations.

B. Recent Welfare Litigation:
Three recent decisions of federal district courts have 

given effect to the federal regulations cited above. Soloman 
v. Shapiro, 300 F.Supp. 409(D.Conn.1969)(3-judge court)- Doe v. 
Shapiro, 302 F.Supp.761(D.Conn.1969)(3-judge court)- Robinson 
v. Washington, 302 F .Supp.842(D.D.C .1968). All three opinions 
held void and unenforceable '' substitute father' regulations 
because they were in conflict with the Social Security Act as 
interpreted in King v. Smith, 392 U .S.309(1968) . All three 
courts granted retroactive AFDC benefits, but none reached the 
questions of whether any other type of retroactive payments may 
be required under the authority of the cited regulation.

C. Argument:
Based on the plain language of the federal and state 

regulations and on the interpretive State Letter there can be 
no question that retroactive AFDC benefits may be ordered to



-21-

July I, 1968~ when those regulations took effect.
Regarding the moneys collected by the Assistant Attor- 

neys-General pursuant to support judgements for the benefit of 
the children in the plaintiff class, it would be a strange 
result if these moneys need not be returned. State courts 
ordered that these sums be payed for the benefit of children.
These amounts were unconstitutionally withheld. Had these 
support moneys been paid directly by the father to the chil­
dren, the defendants, pur suant to their ' maximum budget regu­
lation would have reduced the amount of the children’s grants.
The amount of illegal reduction would have been clearly recover­
able under the regulations. Secondly, the words corrected 
payments1’ used in Section 6200 (k) of the Federal Handbook and 
in Ch. I, Sec. C, p. 5 (Rev. 7/1/68) of the state regulations 
should be read as including the "payments" made by the Attor­
ney General having collected support moneys payable to the 
plaintiffs' children. Indeed, this reasoning is more com­
pelling in that the Maine State Department of Health and Welfare 
in its Maine Public Assistance Payments Manual characterizes 
such moneys collected by the Attorney General and transferred to t 
the recipient as "Deficit Payments in AFDC". Ch. IV, Sec. D, 
p. 3 (Rev. 2/1/69) provides:

DEFICIT PAYMENTS IN AFDC
When a contribution is paid directly 
to the Department by an absent par­
ent on behalf of a child or chil­



-22-

dren in AFDC, the Department 
will transfer to the AFDC client 
all or part of such contribution 
provided a deficit exists between 
requirements and assistance pay­
ments. It is the responsibility 
of the assistance payments worker 
to authorize the Division of Ac­
counts and Audit to make such 
transfers, or '''deficit payments'.
[emphasis added"]

Regarding out-of-pocket expenditures for medical needs
caused by the illegal withholding of Medicaid, the plaintiff
urges that the Dhrase ''corrected payments'" includes "vendor
paymentsunder the Maine Medicaid Program. Throughout federal
and state welfare literature and reports medical coverage is

5/
described as "vendor payments'. In a recent amendment to their 
Payments Manual, the Maine State Department of Health and Wel­
fare calls them "medical care payments" and 'third party medi­
caid payments." Ch. V, Sec. A, p. 1 (Rev. 11/1/69). The 
Social Security Act itself defines the term medical assistance
as a "payment of . . . the cost of the following care or ser-

6/
vices . . . "  It also provides the same federal guidelines
as are provided in the AFDC program. For example, 42 U.S.C.
§1902 (a)(8) provides:

A state plan for medical assistance 
must . . . provide that all indivi­
duals wishing to make application 
under the plan shall have an oppor-

5/ Public Assistance Under the Social Security Act: Serving
People in Need, U.S. Department of HEW (28 pp.) p. 16 * Maine 
Public Assistance Procedural Manual, Ch. IV, Sec. A, Part 2,
pp. 6-15.
6/ 42 U.S.C. §1905(a).



-2 3-

tunity to do so, and that such as­
sistance shall be furnished with 
reasonable promptness to all eli­
gible individuals.7/

§1909(a)(4) requires a state to provide a fair hearing for any­
one denied medical assistance. Therefore, the federal retro­
active payments regulation, §6200 (k) supra, p.l7,would apply to 
medical payments denied.

It would be a strange result if the Social Security Act 
is not so read: out-of-pocket expenses, classic "vested pro­
perty rights,'1 would not be recoverable, while welfare payments 
traditionally characterized as "gratuities and '‘privileges1 
would be.

Regarding the loss of wages claim of plaintiff June Martin, 
plaintiffs candidly admit that there is some difficulty in hold­
ing that they may be recovered by force of the quoted regula­
tions. Again, it is well to point out that had June Martin con­
tinued to work at her job and to earn $202.00 per month, she 
and her children would have been continued to have been reduced 
to a grant of $98.00 per month. Thus, they would have been able 
to recover the difference between $300.00 ($202.00 earnings and 
$98.00 grant) and $51^.36 (their actual budget). Thus, to read 
the retroactive payment regulations restrictively would be to 
reach a result in conflict with the principle purpose of those 
regulations: to raise welfare benefits to the status of an ad-
77 See King v. Smith, 392 U.S. 309, 317, 333 (1968), for a 
construction of parallel AFDC statute.



-24

ministrative and statutory right enforceable against state 
agencies that make errors which result in reductions of income. 
Mrs. Martin had a hard choice for her family: she could work, 
and give up AFDC benefits; or, she could take AFDC benefits, 
and give up work. Defendants dictated this unconscionable 
choice. Either way, she was entitled to have a budget of 
$514.36 per month. Westberry v. Fisher, 297 F.Supp.ll095 1112 
(D.Me.1969). She had only $300.00.

Because of the several issues presented above, the plain­
tiffs urge the Court not to'remand this case to the State Departme 
of Health and Welfare. It has long been their position that a 
'“fair hearing" is an administrative proceeding and is not an 
appropriate place to discuss i:legal; issues. (Stipulation of 
Fact, Oct. 20, 1969). Secondly, it is the position of the State 
that there being no state appropriation to cover any retroactive 
payment, the plaintiffs can recover nothing. (Brief of Defendants 
Re Damages, pp. 4-6, filed Feb. 23, 1969). Thirdly, it is not 
necessary under §1983 to exhaust any administrative or state law 
remedies. Damico v. California, 389 U .S.4l6(1967); Cobb v. City 
of Malden, 202 F.2d 701, 705(lst Cir.1953). Even if plaintiff 
were required to exhaust administrative remedies, in view of the 
position of the Department with respect to fair hearings and in 
view of the legal questions which must be decided, such a proce­
dure would be futile and would "bifurcate, and needlessly proli­
ferate, litigation". Glover v. St. Louis-San Francisco Railroad



-25-

Company, 89 S.Ct. 548, 552 (1969). Fourthly, the question of 
what remedy is appropriate in this case is a matter of federal 
law. J. I. Case Co. v. Borak, 377 U.S.426, 433 (1964); Caperci 
v. Huntoon, 397 F.2d 799, 801 (1st Cir.1968); Basista v. Weir,
340 F .2d 74, 86(3rd Cir.1964)

Since 42 U.S.C.§1983 and 28 U .S.C.§1343are the bdsis of thi 
Court’s jurisdiction, this case should not be remanded to the 
Health and Welfare Department for this would deprive the plain­
tiffs of their right to a federal remedy in a federal litigation 
to protect federal rights. Should the court choose to remand 
anything to the Maine State Department of Health and Welfare, 
plaintiffs earnestly argue that it should not be any of the 
cases of the the named plaintiffs or of the intervenors which are 
before this Court upon stipulated facts.



-26-
IV

42 U . S . C .§1983 REQUIRES THE DEFENDANTS,
INDIVIDUALLY AND SEVERALLY, TO RETURN 
MONEYS UNCONSTITUTIONALLY WITHHELD AND 
TO RECOMPENSE OUT-OF-POCKET EXPENSES 
FOR MEDICAL COVERAGE AND LOSS OF WAGES 
CAUSED BY THE ENFORCEMENT OF THE UN­
CONSTITUTIONAL REGULATIONS.

A. The Facts:
The first "maximum grant" regulation promulgated in the 

State of Maine after the commencement of the program in 1937 
was proposed by David H. Stevens, then Commissioner of the 
Maine State Department of Health and Welfare, and has been 
maintained by defendant Dean Fisher with periodic increases, 
since he became Commissioner in 1956. The first ''maximum bud­
get" regulation promulgated in the State of Maine was in 1956 
by Commissioner Dean Fisher, M. D. Neither of the two regula­
tions has ever been submitted to the Attorney General for the 
State of Maine for approval as to legality. (Stipulation of 
Fact, September 10, 1969). In 1957, the case of Collins v. 
State Board of Social Welfare, 248 Iowa 3673 8l N.W.2d 4 (1957) 
found that a maximum grant regulation substantially the same 
as that of Maine was promoting the break-up of large families 
and declared it unconstitutional and without any valid, ra­
tional legislative purpose and in direct conflict with the 
statutory purpose of "strengthening family life1'. After the 
service of the complaint in this action in April of 1968, de­
fendants continued to deprive the plaintiffs of AFDC benefits 
proportional to family size and continued to withhold support



-27

moneys collected by them for the benefit of the plaintiff chil­
dren. Even since the date of the Court’s opinion in the present 
cases the defendants have introduced no evidence to explain the 
necessity or the reasonableness of their action and they have 
continued to rely upon the principle that the State is entitled 
to spend its welfare money the way it chooses. (Brief of Defen­
dants 5 July 103 19683 pp. 3-6.)

B. 42 U.S.C.&I9833 Generally:
The ourpose of 42 U.S.C.§1983 is to nut the injured per­

sons in the position they would have been but for the unconsti­
tutional action of persons acting under color of state law.
§1983 provides that:

Every person3 who, under color of any 
statute5 ordinances custom or usage of 
any state subjects, or causes to be 
subjected, any citizen of the United 
States or other person within the juris­
diction thereof to the deprivation of 
any privileges or immunities secured 
by the Constitution or lav/, shall be 
liable to the party injured in an action 
at law, suit in equity, or other proper 
proceeding for redress. (R.S. 1979
Force Act of 1871, 17 Stat. 13.) [empha­
sis added].

Federal courts have frequently awarded money damages to
persons deprived of their privileges and immunities in violation8/
of §1983. In Johnson v. Branch, 364 F.2d 177 (4th Cir.l966)3

87 See generally, Emerson, Haber and Dorsen, Political and Civil 
Rights in the United States, (3rd Ed.19 6 7, Little, Brown and Co .- 
Boston) Vol. II,pp . 1JT47-1454 ; additional cases awarding damages 
under §1983 to Negro teachers refused employment because of 
their race are Hill v. Franklin County Board of Education, Nos.



-28-

the court, finding that the school board had refused to renew 
the contract of a Negro teacher because of her civil rights 
activities, remanded the case directing the district court 
to order the board to renew her contract and determine her 
damages. In Wall v. Stanley County Board of Education, 378 
F.2d 275 (4th Cir.1967), the court found that Mrs. Wall, a 
Negro teacher, was refused employment by the Stanley County 
Board of Education because of her race. The court ordered 
the board to put her back on the roster of teaching applicants 
and that she be given objective consideration for employment 
and further ordered the board to pay her damages for her loss 
of earnings:

Mrs. Wall managed to secure employ­
ment elsewhere for the school year 
1965-1966. Proper damage elements 
will include salary differences, if 
any, and moving expenses to her new 
residence. If she should be re-em­
ployed in the Stanley County System 
for the school year 1967-1968, she 
should also be awarded the reason­
able expense of moving back to Stan­
ley County. 378 F.2d at 278.

In this circuit, a cause of action for damages is stated by 
teachers against individual members of the city counsel for 
deprivation of contract and property rights in violation of due 
process and equal protection of the law. Cobb v. City of Malden,

8/ (cont.) 17647, 17648 and 17649 (6th Cir. decided Feb. 20,1968) 
Rolfe v. County Board of Education, No.17498 (6th Cir. decided F 
Feb.19, 1968)- Smith v. Board of Education of Morrilton County, 
365 F.2d 770 (8th Cir.1966)” Chambers v. Henderson County Board 
of Education, 364 F.2d 189 (4th Cir.1966).



-29-

202 F.2d 701 (1st Cir.1953). There the court held that a cause
of action for damages is plainly stated by allegations of
(1) deprivations of constitutional rights, and, (2) by an of-

9/ficer acting under color of State law.

C. Personal Liability and the Law of Immunities:
The common law of immunity has only a few generally

accepted precedents. Judges and legislators are usually held
personally immune from tort liability when acting within th&r

10/
offices. The common law immunity of administrative officials
is, and has been for a good many years, in hopeless confusion.
Contrast Miller v. Horton, 152 Mass.540, 26 N.E.100 (1891) with

11/
Sweeney v. Young, 82 N.H.159, 131, A.155 42 A.L.R.751 (1893). 
Rather than being clarified over the years, the law has become 
more conflicting with the growth of administrative government.

This was the background of the law when 42 U.S.C.§1983 
was passed in 1871 by the Abolitionist Congress. Its often re-

9/ See generally, Note, The Proper Scope of the Civil Rights 
Acts, 66 HARV.L.REV. 1285 (1953)’ §1983 does not include federal 
officers. Norton v. McShane, 332 U.S.98I (1965).
10/ See cases collected at 66 HARV.L.REV.1285, 1286 (1953).
11/ See generally Jennings, Tort Liability of Administrative 
Officials, 21 MINN.L.REV. 263 (1937). Plaintiffs do not hereby 
forsake their position in Section II of this brief that their 
damage need not be described as tort damages.



-30-

peated purpose was to provide ''a negative incentive to state
and local officials, on Dain of personal liability, to perform

12/
their duties properly. A reasonable argument can be made 
that Congress intended to abolish common law immunities. Note,
66 HARV. L.REV.1285, 1296 fns.56, 57 (1953)' See also Cobb v. 
City of Malden, 202 F .2d 701, 706 (1st Cir.1953) (Magruder, C.J. 
concurring).

However, certain immunities were developed by the federal 
courts in the absence of a clearer intention to abolish all 
immunities: Tenney v. Brandhove, 341 U.S.367 (1951)(state legis­
lator sued for violation of plaintiff’s First Amendment right 
of free speech)- Peirson v. Ray, 386 U.S.547 (1967) (judges 
absolutely immune and police officers conditionally immune when 
arresting in good faith under a statute later declared uncon­
stitutional ).

Nevertheless, it is still clearly recognized that to 
give absolute immunity to administrative officials would be to 
deprive §1983 of all meaning insofar as it provides an action 
at law against state officials. Note, The Proper Scope of the 
Civil Rights Act, 66 HARV.L .REV.1285, 1298 (1953). Even state 
governors have been held answerable at law under §1983. Mar­
shall v. Sawyer, 301 F.2d 639 (9th Cir.1962); Sterling v. Con­
stantin, 287 U.S.378 (1932). The proper approach is that of

12/ Comment, Comity, Official Immunity and the Dilemma of 
§1983, 1967 DUKE L.T. 741, 746-7.



-31-

Cobb, supra:
So far as concerns federal tort liability 
for acts done under color of state law, I 
think the Supreme Court in effect has held 
in Tenney v. Brandhove, that the Act mere­
ly expresses a prima facie liability, 
leaving to the courts to work out, from 
case to case, the defenses by way of offi­
cial privilege which might be appropriate 
to the particular case. 202 F.2d at 706 
(C.J. Magruder, concurring).

"Courts should select from the variety of existing rules 
on immunity those which best comport with the Civil Rights Act." 
66 HARV.L.REV. at 1298.

The plaintiffs have established a "prima facie" liability 
of all the defendants. They have alleged and proven that the 
defendants’ actions were arbitrary, capricious, and irrational. 
Complaint and Amended Complaint, para. 15. Three federal judges 
have held that the defendants’ regulations "plainly conflict" 
with the Equal Protection clause. 297 F .Supp. at 1111. Defend­
ant Fisher authorized day after day blatantly different treat­
ment for large families. He did not seek the opinion of the 
Attorney General, even though the Collins case in 1957 held 
precisely the same policy embodied in a state statute, unconstitu 
tional. He has not come forth with any explanation except that
funds were limited and the state may SDend them how it chooses.

13/The plaintiffs' prima facie case remains unrebutted. Indeed,
13/ Even under less exacting standards of liability defendant 
Fisher would be liable. iTA more desireable standard would demand 
only.that the act in question be negligent. By imposing an ob­
jective standard upon the official, under which he is presumed 
to have at least a minimal knowledge of constitutional rights, 
the federal courts will encourage greater care in respecting thes 
rights. 66 HARV.L.REV. at 1299.



-32-

under Maine Law even a city council would be liable for acts per­
formed herein. Michaud v. Bangor, 159 Me.491, 196 A.2d 106 
(1963).

The other defendants are lower echelon officials. The
general common law rule is that they are liable when acting in a
ministerial capacity. Prosser, Torts 781-782 (1955). A leading
commentator writes:

. . . the true test is whether the 
law ’unequalifiedly requires the 
doing of a certain thing, to the 
extent that its performance is 
unequalifiedly required: it is not 
discretionary, even though the man­
ner of its performance may be dis­
cretionary.' Jennings, Tort Lia­
bility of Administrative Officers,
21 MINN.L.REV.263, 298 (1937).

Thus, voting registration officers and election officials have 
been held liable for refusing to register and allow Negroes to 
vote, even though a state statute commanded the actions that 
violated 42 U.S.C.§1983. Meyers v. Anderson, 238 U.S.368 (1 9 1 5): 
Nixon v. Herndon, 273 U.S.536 (1927).

It is submitted that defendants Smith, Tierney, Jenny,
and Holloway are also liable. They were 'unequalifiedly required1

to authorize only $144.00 per month for the Westberry family of
twelve and to cut Mrs. Martin’s grant to $98.00 per month when
she worked. They were left no discretion. Their acts were un- 

14/
constitutional.
l4/!,However, in general the public officials who are immediately 
involved in denials of equal protection and whose acts are not 
protected by immunity are likely to be lowtlevel officials whose 
lack of financial resources makes them unattractive targets in 
an action for damages.” Nota Developments in the I,aw Equal Protec­
tion, 82 HARV.L .REV. 10 6 5 s 1136-7.



-33-

If the liability of the defendants is an unfortunate 
result, it is a result caused, not by the plaintiffs, but by 
the Department who placed them in their positions. For a simi­
lar case, see Parrish v. Civil Service Commission, 66 Cal.2d 
260, 425 P.2d 223, 57 Cal.Rptr. 623 (1967).

D. Recent Welfare Litigation:
Litigation in the area of welfare law is a very recent 

phenomenon and this partially explains the dearth of.authority 
for damages under 42U.S.C .§1983. However, there is certainly 
ample precedent for the plaintiff to urge that justice will be 
done in this case only if the plaintiffs recover their damages 
to the date of the filing of the complaint. Damages wore 
granted in the following welfare cases brought pursuant to 
42 U.S.C.§1983: Shapiro v. Thompson, supra• Damico v. Califor-
nia3 __ F.Supp.___(N.D.Calif.1969)(3-judge court)(decided Sept.
28, 1969); Machado v. Hackney, 299 F.Supp.644 (W.D.Tex.1969)
(3-judge court); Gaddis v. Wyman,__ F.Supp.___(S.D.N .Y.1969)
(3-judge court)(decided September 25, 1969); Alvarez v. Hackney,
___F.Supp.___(V/. D .Tex . 1969 )( 3-judge court) (decided Sept. 30, 1969)

Indeed, in Alvarez and in Gaddis the judgement for retro­
active benefits was made in favor of the entire class of plain­
tiffs. It is the precise purpose of 42 U.S.C.§1983 to provide 
a monetary remedy against state officials who deprive persons 
of Federal Civil Rights. The very recent case of Gomez v.



-34-

Florida State Employment Service, ___F.2d___, (5th Cir.1969)
(decided Oct. 4), is an excellent review of the purposes and 
the history of §1983 by the Fifth Circuit Court of Appeals which 
has handled more litigation under that statute than any other 
Circuit Court of Appeals. Certain agricultural workers com­
plained against the State Employment Service that they had 
failed to meet the obligations imposed by Labor Department regu­
lations under the Wagner-Peyser Act which were designed to assur 
them adequate housing, fair wages, and reasonable hours of work. 
The action for damages was brought under §1983. The District 
Court dismissed the complaint as failing to state a claim for 
which relief could be granted. The Circuit Court of Appeals 
reversed:

The aim of the plaintiffs, through 
appropriate judicial remedies, is 
to secure for themselves the fun­
damentals of human dignity. They 
seek to protect their right to decent 
housing and sanitary living condi­
tions so they and their children 
may be free of ’disea.se. They seek 
to protect their ability to work for 
the wages which Congress has in ef­
fect determined to be the minimum 
to which they are entitled. They 
seek sanctions for having been de­
prived of some of those few pro­
tections designed by Congress to 
lift them out of economic-sociolo­
gical peonage. Such fundamental 
human, highly personalized rights 
are just the stuff from which §1983 
claims are to be made. (From opinion 
printed in Poverty Law Reporter).



-35-

The plaintiffs in this action also seek to protect their right 
to seek an income “‘compatible with decency and health 1 like 
any other family receiving AFDC. Plaintiff June Martin seeks 
a sanction not for denial of her opportunity to work at a 
particular wage levels but for an opportunity to work.

The defendants have shown no reason to justify carving 
out an exception to the plain language of 42 U .S.C.§1983.



36

V
CLASS JUDGEMENT

THIS COURT CAN AND SHOULD ISSUE 
A JUDGEMENT THAT THE DEPENDANTS ARE 
LIABLE TO ALL MEMBERS OF THE PLAIN­
TIFF CLASS IN THE AMOUNT OF MONEYS 
ILLEGALLY WITHHELD AND FOR COMPEN­
SATORY DAMAGES SUSTAINED.

A. Facts
This action was commenced in April, 1968, as a class

action. The class was defined as:
Residents of the State of Maine, who have 
applied for payments under the Aid to 
Dependent Children (ADC) Program, who 
have been found otherwise eligible by the 
defendants, but who have received less 
than they would have received, due to the 
regulations of the defendants that no 
family may have!ibudgeted requirements1' of 
more than $300.00 per month and the 
regulation that no family may receive a 
grant of more than $250.00 per month 
(Complaint, para. 5).

On July 15, 1968, the Court denied plaintiffs' request for a 
temporary restraining order on the grounds that it would have 
been inequitable to issue such an order in favor of the named 
plaintiffs only and it would have caused undue inconvenience 
to the Department to compel such changes for the whole class on 
a temporary basis before the case had been heard.

On September 17, 1968, the Court granted plaintiffs’ 
motion to permit the action to be maintained as a class action. 
(Report of Pre-Trial Conference and Order) It was stipulated 
that the most recent available figures of the Department 
indicated that 52 families were receiving the $250.00 per month



37

maximum grant and that around 1500 families had had their 
budgets reduced from their actual need to $300.00 per month. 
(Stipulations of Fact, September 17, 1968) The judgement of the 
three-judge court permanently enjoining the enforcement of the 
"maximum grant" andnmaximum budget" regulations was in favor of 

the named plaintiffs and all other persons similarly situated. 
(Judgement, para. 2, April 14, 1969). During three selected 
weeks in July and August of 1969, a notice of the pending damage 
claims was placed twice weekly in the Bangor Daily News and in 
the Portland Press Herald. On August 28, 1969, this court 
extended the time for intervention from September 1, 1969, until 
September 15, 1969. To date 55 parties have intervened, three 
of whom have subsequently dismissed their claims.
B_.__Federal Rule of Civil Procedure 23:

The purposes of the class action Rule 23 as articulated by 
Benjamin Kaplan, a reporter to the Advisory Committee on Civil 
Rules from its organization in i960, are: (1) to reduce units of
litigation by bringing under one umbrella what might otherwise be 
many separate but duplicating actions; and (2) even at the 
expense of increasing litigation, to provide means of vindicating 
the rights of groups of people who individually would be without 
effective strength to bring their opponent into court at all~}-5/ 

Indeed, Klaven and Rosenfield, who have written a great deal about 
the conduct of class suits, have said that the "historic mission"

15/ Kaplan, A Prefatory Note, 10 3.C. IND. & COM.L .REV., 40J, 500
71969 ). .....  "



38

of the class action Is "taking care of the small guy." They 
observe that:

[T]he employee who Is entitled to time 
and a half overtime, the stockholder 
who has been misled by a false statement 
in the prospectus, the rate-payer who has 
been charged an excessive rate, the 
depositer in a closed bank, the taxpayer 
who resists an illegal assessment, or the 
small businessman who has been the victim 
of a monopoly in restraint of trade, like 
the investor in the reorganization, finds 
himself inadvertantly holding a small stake 
in a large controversy. The type of injury 
which tends to affect simultaneously 
the interest of many people is also apt to 
involve immensely complex facts and intricate 
law, and redress for it is likely to involve 
expense totally disproportionate to any of 
the individual claims. 1.6/

The remedies provided by the courts in class actions have 
not been limited to injunctive relief, but have long included 
damage to members of the class. In spite of the individuality 
of members’ damage, the issues pertaining to liability are often, 
as in this case, the same. Often, as in this case, the indivi­
dual damage is so small that without the device of a class suit 
the plaintiff would not be afforded any relief.1J//

16/ Klaven & Rosenthal, The Contemporary Function of the Class 
Suit, 8 U. of CHI. L. REV. 684 (1941); See also Ford, Fed.R.23:
A Device for Aiding a Small Claimant. 10 B.C. IND. & COM L. 
REV. 501, 504, fn.22 (1969).
17/ Note,Damages in Class Actions: Determination and Allocation,
10 B.C. IND. & COM. L.REV. 6 1 5, 624 (1969).



39

The effective operation of Rule 23 in aiding the small 
claimant can be illustrated by a few cases. In Union Carbide 
and Carbon Corporation v. Unnamed Plaintiffs, 300 F.2d 561 (10th 
Cir. 196l)3 cert dismissed,, 371 U.S. 801 (1962)., a jury gave a 
special verdict to hundreds of unnamed plaintiff miners against 
mining companies who had illegally monopolized the interstate 
vanadium ore market. The judgement was that unnamed plaintiffs 
had been damaged a certain amount per pound of vanadiam. The 
court ordered that unnamed members of the plaintiff class would 
have to appear and file claims within six months before a special 
master pursuant to the jury approved formula. The defendants 
vigorously objected. On appeal, the Tenth Circuit of Appeals 
cited a legion of authorities where unnamed plaintiffs had been 
permitted to share in class judgements upon proof of membership 
and damages. 300 F.2d at 588. The court said, to hold other­
wise, would be to take the position "that where it is impracti­
cal to bring all the parties before the court they must never­
theless be brought before the court." 300 F .2d at 589.

In Eisen v. Carlisle and Jacqueline Corporation, 391 F.
2d 555 (2nd Cir. 1968), the federal district court dismissed a 
class anti-trust fraud action where the relief requested was an 
injunction and damages. The court said that since individual 
damages were different and since many members cf the alleged 
class purchased stock for different reasons, a class action 
should not be maintained, but the court would permit liberal 
joinder of claims and interventions. The Second Circuit Court



of Appeals reversed and held that the district court's dismissal 
of the action frustrated the purpose of Rule 23 to eliminate 
repititious litigation and to aid the small claimant.

In the First Circuit, Cherner v. Transitron Electronic 
Corp.3 221 F. Supp.48 (D. Mass. 1963)s most vividly demonstrates 
the utility and the speed with which thousands of small claims, 
in this case claims of damages for fraud in the publication of 
a false prospectus statement, may be disposed of. District 
Court Judge Wizansky there approved a $5„300,000.00 settlement 
for the entire class.

Indeed, the United States Supreme Court has approved 
and urged the assessment of class damages in a class suit even 
where the statute authorizing suit did not even expressly allow 
damages. In the case of J. I. Case Company v. Borak, 377 U.S. 
4426 (1964) a class of stockholders sued its corporation for 
fraudulent merger in violation of the Securities Exchange Act.
The trial court dismissed the damage claim saying that only 
prospective relief was authorized by the statute. The Supreme 
Court reversed and held: (a) federal courts have the power to
grant all necessary remedial relief to make federal rights 
secure; (2) damage suits encourage private enforcement of the 
Securities Exchange Act. The ‘court said., "We, therefore, believe 
that under the circumstances here it is the duty of the courts to 
be alert to provide such remedies as are necessary to make 
effective the Congressional purpose." 377 U.S. at 433. They 
selected for emphasis from Bell v. Hood 327 U.S. 678 (1964) the



following language:
And it is also well settled that where 
legal rights have been invaded,, and a 
federal statute provides for a general 
right to sue for such invasion, federal 
courts may use any available remedy to 
make good the wrong done. 377 U.S. at 
433.

C. Recent Welfare Litigation:
Recently the"historic mission" of the class action in 

"taking care of the smaller guy" has been extended from stock­
holders to welfare recipients. In Alvarez v. Hackney, ___F.
Supp.___( W.D. Tex. 1969)(decided Sept. 30), a three-judge court
declared unconstitutional the Texas one-year residency requirement 
as a condition for receiving welfare and ordered the defendant 
welfare officials to correct retroactively their denial of 
assistance io the plaintiff class on the basis of the unconsti­
tutional regulation. Further, the Court ordered that a Master 
make a report pursuant to Rule 53 of the Federal Rules of Civil 
Procedure concerning the number and identity of those persons 
eligible for welfare benefits. (Refer unpublished ORDER dated
September 30, 1969, 2 p.) In Gaddis v. Wyman, ___ F. Supp.___
(S.D. N. Y. 1969) (decided Sept. 25) the three-judge court 
declared unconstitutional Social Services Law 139-a of the State 
of New York which required applicants for AFDC who had resided 
in New York for less than one year to show by "clear and 
convincing proof" that they did not enter the State of New York 
for the purpose of receiving assistance. The defendants were 
enjoined from further denying assistance for that reason. Further



42

they were ordered to notify by mail and to furnish retroactively 
the relief that the plaintiffs would have been entitled to for 
the period during which it was denied pursuant to the unconsti­
tutional statute. (See JUDGEMENT dated October 10, 1969, 3 p.)
New York’s request for a stay of the retroactive class order 
was denied by Justice Harlan. (N.Y. LAW JOURNAL, November 13, 
1969, page 1).

In contrast the case of Machado v. Hackney, supra page 33 
although granting an injunction for the class prospectively 
and retroactive damages to the named plaintiffs, refused to 
grant back payments of AFDC moneys to the class. The report of 
the case does indicate that it was a per curiam opinion. It is 
also to be noted that the case of Alvarez supra was decided by 
the same Western District of Texas federal Court of Spears, D.J., 
as decided Machado. It was decided after Machado and did grant 
retroactive payments to the class. In light of these facts, the 
holding of Machado v. Hackney that the class would not be 
allowed to recover retroactive benefits has lost whatever 
persuasive force it may have had prior to Alvarez v. Hackney.

Nearly one third (33%) of the claims pending before this 
court at this time are for less than $300.00. No competent 
attorney, given the complexity and unfamiliarity of the law 
involved, is going to bring a complaint to recover such small 
amounts. Even if attorneys were willing to do this on a 
charitable basis, this Court would be deluged with hundreds of 
small claims of this sort. Without a judgement that the plaintiff



43

class of welfare recipients are entitled to have returned the 
moneys that were illegally withheld from them, possibly hundreds 
of indigent AFDC mothers, disabled fathers, and impecunious 
children will have no meaningful legal remedy for the deprivation 
of their constitutional and statutory rights. Such a result 
would be in direct conflict with the intentions of the framers 
of Federal Rule of Civil Procedure 23. Its express purpose was 
to aid "the taxpayer who resists an illegal assessment" and the 
"rate-payer who has been charged an excessive rate," and, it 
must be plain, the mother of six children who seeks the support 
money collected by the Attorney General from her husband 
(intervenor, Clarice Bowen), the totally disabled father who 
demands from the welfare department the benefits withheld from 
him pursuant to an unconstitutional regulation (Plaintiff,
Richard Westberry), and the family who makes out-of-pocket 
payments for medicine when medicaid is illegally denied them 
(Intervenors Martel). The class action Rule 23 was designed to 
deal with just such situations. Benjamin Kaplan recommends 
daring and hand-tailored relief in class action. He notes, "To 
all this I should add that in so far as class actions will 
enhance the forensic opportunities of hitherto powerless goups, 
they will tend to probe the terrae incognitae of substantive law.1-

18/ Kaplan, A Prefatory Note, 10 B.C. IND. & COM.L .REV.497,
500 (I960).



-45-

CONCLUSION

For the reasons stated herein, plaintiffs pray this 
Court to grant a money judgement to the named plaintiffs and 
intervenors and to make a determination of liability for the 
other members of the class. The plaintiffs request this re­
lief only for the period during which their complaint has been 
before this Court for adjudication.

Dated: November 21, 1969

Respectfully submitted,

Donald F. Fontaine, Esq. 
Robert E. Mittcl, Esq.
Thomas P. Downing, Esq.
158 Danforth Street 
Portland, Maine
William L. Robinson, Esq.
10 Columbus Circle 
New York, New York
Raphael John Wuesthoff, Esq. 
162 Main Street 
Saco, Maine
James P. Dunleavy, Esq.
P. 0. Box 1207 
Presque Isle, Maine

__ Of Counsel___ ________
Alexander A. MacNichol, Esq. 
131 Ocean Street 
South Portland, Maine
Ward T. Hanscome, Esq.
184 Main Street 
Sanford, Maine