Doe v. Maher

¶1(concurring in the result):

¶2Since the Court concludes that the Commissioner’s failure to make a determination as to whether disclosure of the father’s identity is in the best interests of the child is inconsistent with the requirements of the Social Security Act, 42 U.S.C. § 402(a)(26)(B), the Supremacy Clause requires that the Commissioner either forego seeking compulsory disclosure or forego receipt of federal funds. See Rosado v. Wyman, 397 U.S. 397, 420, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). It is unlikely that the Commissioner will elect to forego federal funds. In any event, he should be given an opportunity to decide whether to bring the state program into conformity with federal statutory requirements before this Court rules on whether compelled disclosure, without the statutorily required determination, encounters constitutional objections. Because I agree with the conclusion that the statutory requirement has not been met, I concur in the result, without consideration of the constitutional issues. See, generally, Soifer, Parental Autonomy, Family Rights and the Illegitimate: A Constitutional Commentary, 7 Conn.L.Rev. 1 (1974).

¶3My view of the limited statutory issue before us also affects the abstention issue. If we were required to decide the constitutionality of the state contempt proceedings, we would encounter the issue of Younger abstention, to which the Supreme Court’s remand directed our attention. But since the státutory issue suffices for decision of the case at this point, our relief need not enjoin any state proceedings. Technically, according to Rosado, our relief should be a declaration and injunction barring the Commissioner from receiving federal funds until his disclosure policy is in compliance with federal statutory requirements. Such an order does not by its terms enjoin any state proceedings, and therefore should not encounter Younger objections. If the Commissioner chooses to withdraw his contempt applications in order to assure receipt of federal funds, Younger does not stand in the way of a federal court ruling that precipitates such state administrative action.

¶4Since, thus analyzed, the abstention issue does not preclude relief, there is no reason to place any reliance on the supposed lack of capacity of the Connecticut Court of Common Pleas to adjudicate constitutional issues. See State v. Muolo, 119 Conn. 323, 176 A. 401 (1935). That decision was announced more than forty years ago in the context of the former town courts, in which judges were not required to be attorneys, and from which most appeals were taken de novo. Conn.Gen.Stat. §§ 51-134, 54-12 (1958). Even as to a court of such limited authority, the Muolodecision did not preclude it from constitutional adjudication, but simply indicated that it should take such action “only upon the clearest ground or where the rights of the litigants make it imperative that it should do so.” 119 Conn, at 326, 176 A. at 403.

¶5It is true that in some instances the Connecticut Circuit Court, which replaced the town courts, viewed Muoloas authority for *1383declining to rule on constitutional issues, see decisions collected in Children’s Exhibit B on Remand, and in at least one instance the appellate session of the Superior Court approved this practice. Helm v. Welfare Commissioner, 32 Conn.Sup. 595, 600, 348 A.2d 317, 37 Conn.L.J. No. 24, at 12, 14 (1975). Whether that approach of total abdication of responsibility or even the restrictive approach of Muolohas continuing validity in the context of the modern Connecticut Court of Common Pleas is a highly questionable proposition. In the first place, Muoloitself suggested that unless constitutional adjudication were imperative, it would be better for the former town courts “to leave the decision to our higher courts, to which the matter may be brought by appeal or otherwise.” 119 Conn, at 326, 176 A. at 403. Yet the Court of Common Pleas itself was one of the higher courts to which appeals from the town courts were taken. Plainly Muolodoes not intimate any restriction on the capacity or responsibility of the Court of Common Pleas to adjudicate constitutional issues. And there is no reason to assume that the responsibility of that court has been diminished simply because the jurisdiction of the former Circuit Court has been merged with its own.

¶6Furthermore, serious constitutional issues are posed by the suggestion that a state judge, even of a court of limited jurisdiction, can decline to adjudicate a federal constitutional or statutory question when it arises in a case properly within his jurisdiction. Cf. Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947). Mondou v. New York, N. H. & H. R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327 (1912). He has taken an oath to uphold the United States Constitution, and his oath,1 and the Supremacy Clause,2 may well obligate him to decide federal constitutional and statutory questions properly before him. It has been held that even a state constitutional provision limiting the authority of lower state courts to decide constitutional questions cannot displace the Supremacy Clause requirements imposed upon all state judges. People v. Western Union Tel. Co., 70 Colo. 90, 198 P. 146 (1921).

¶7In this litigation, I have previously expressed the view that rather sensitive constitutional adjudication will be required of State Common Pleas judges in the course of considering contempt actions to compel disclosure of the father’s identity. 365 F.Supp. at 84. How that adjudication will be affected by the administrative determination now required is also a question that need not be anticipated at this point. But I place no reliance whatever on any limitation of the responsibility of a State Common Pleas judge. It will be time enough to consider that issue when a litigant can demonstrate, in a case properly within our jurisdiction, that she has been injured by the failure of a Common Pleas judge to decide an issue arising under the Constitution or laws of the United States. Until such a case arises, I prefer to think that judges of the Common Pleas Court will seriously accept and discharge the responsibilities imposed upon them by the Supremacy Clause. See New Haven Tenants’ Representative Council, Inc. v. Housing Authority of City of New Haven, 390 F.Supp. 831 (D.Conn. 1975).