source: Caselaw Access Project

author: TERENCE T. EVANS, District Judge.

license: Public Domain

text:
    Charles R. BURNS, Petitioner, v. Donald CLUSEN, Respondent.
    Civ. A. No. 83-C-1489.
    United States District Court, E.D. Wisconsin.
    Dec. 27, 1984.

      Steven D. Phillips, Asst. State Public Defender, Madison, Wis., for petitioner.
    Daniel J. O’Brien, Asst. Atty. Gen., Madison, Wis., for respondent.
   DECISION and ORDER

TERENCE T. EVANS, District Judge.

Charles R. Burns, an inmate at the Green Bay Correctional Institution, Green Bay, Wisconsin, has petitioned for a writ of habeas corpus.

Burns was convicted of first-degree sexual assault, endangering safety by conduct regardless of life, two counts of kidnapping, armed robbery, and verbally threatening to injure another . The charges arose from two separate incidents, both of which occurred on the same day, May 6, 1980. Two women were Burns’ alleged victims, M.S. and L.L. (the victims’ full names were used throughout the record; however, the Wisconsin Supreme Court used their initials, so I will do the same).

Burns was charged with kidnapping for the abduction of M.S. in Somers, Kenosha County, Wisconsin, on the morning of May 6. M.S. was forced at gunpoint to drive to a parking lot where, to escape, she intentionally rammed her car into a set of garbage cans, fled, and screamed for help. She later identified Burns as her abductor.

The other charges relate to an incident which happened on the evening of May 6. L.L. testified at a May 22, 1980, preliminary hearing that she was accosted by a person, whom she identified as Burns, in a restaurant parking lot in the City of Kenosha. Burns walked up to her, pulled out a gun, and forced her to drive to a secluded area a distance away from the restaurant. Once parked, Burns forced L.L. into the back seat of the car where he attacked her. He struck her with a gun, forcibly removed her clothes, threatened her life, sexually assaulted her, removed money from her purse, attempted to strangle her with a wire. He then fled on foot. L.L. identified Burns with the aid of an artist’s sketch and from photographs supplied to her by the Kenosha County Sheriff. She identified Burns in person at the preliminary hearing, ' and described in detail the ample opportunity she had to view him. She was extensively cross-examined by Burns’ counsel.

As the trial date approached, the prosecutor attempted to produce L.L. for the purpose of complying ■ with discovery demands. She refused, stating that she had “forgiven” the defendant. The prosecutor then made arrangements to have her arrested as a material witness, but these efforts were halted when he learned that L.L. had developed severe psychological problems and had been hospitalized because of them. The prosecutor then made a motion to declare L.L. unavailable to testify at trial. At a hearing on the motion, held on December 9, 1980, testimony was received from Dr. David F. Busby, who treated L.L. during her hospital stay. Busby’s testimony was based on personal observations which took place during a one-month period ending on October 18, 1980, and on subsequent conversations with her parents up until the time of the hearing. Based on his observations at the hospital and on the lack of progress which had been reported to him by L.L.’s parents since her discharge, Busby stated that forcing L.L. to testify at trial would have a “high probability [of causing] anywhere from a moderate to substantial relapse and réturn of [L.L.’s] symptoms____” The trial judge took the matter under advisement..

Not too long after this hearing took place L.L. wrote to Burns, asking him to “accept the Lord Jesus into your life,” and urging him to read the Bible. She also asked to visit Burns in jail, and apparently did so at the rate of twice a week.

At the conclusion of a continuation hearing held on January 16, 1981, the court ruled that L.L. was unavailable to testify at trial within the meaning of a Wisconsin Rule of Evidence, § 908.04(l)(d). Judge William Zievers stated:

“... Based upon the testimony of Dr. Busby, ... the court is satisfied that the witness [L.L.] had been diagnosed and was suffering from acute schizophreniform disorder up to and including the date of her discharge from the hospital, ... and that among the half-dozen or so rape victims seen by this particular forensic psychiatrist this was the most severe case of reaction that he had seen, and that her condition is one of an existing mental illness or infirmity which the court finds continues to exist ...”

Judge Zievers was later replaced by Judge Thomas Corbett. Judge Zievers’ ruling was not disturbed, even though Burns’ trial did not begin until a month and a half after it was reached, four and a half months after Dr. Busby had last seen L.L. On the day the trial began, March 2, 1980, Burns’ counsel urged Judge Corbett to review Judge Zievers’ decision. Judge Corbett refused.

The jury trial commenced. In place of L.L.’s live testimony, the court permitted the state to introduce a transcript of her testimony at the preliminary hearing. Burns was convicted on all five counts.

Burns’ appeal to the Court of Appeals was certified directly to the Supreme Court, which denied him relief. A divided court (5-2) ruled that the evidence supported the finding that L.L. was suffering from a “then existing ... mental illness” which made her unavailable to testify at trial. The Court found that Judge Corbett did not abuse his discretion when he relied on Judge Zievers’ initial ruling instead of making new findings at the outset of the trial. The Court explained that had Judge Zievers himself relied on his earlier determination, no abuse of discretion could be found. Merely because Judge Zievers was replaced would not, therefore, require that the procedure be repeated. The Court also concluded that the confrontation clauses of the United States and Wisconsin Constitutions were not violated by the use of L.L.’s former testimony. State v. Burns, 112 Wis.2d 181, 140-141, 332 N.W.2d 757 (1983).

The Court further explained that “it is a legitimate interest of the criminal trial process to protect a victim of crime from needlessly repeating testimony where the victim is presently diagnosed as being severely mentally ill and where the act of testifying again has a significant probability of worsening the condition.” Id. at 143, 332 N.W.2d 757. The court went on to emphasize that Burns’ confrontation rights were protected by the fact that L.L. was extensively cross-examined at the pretrial hearing. Id. at 146, 332 N.W.2d 757. In reviewing the evidence underlying the trial court's finding of unavailability, the Supreme Court added, apparently on its own, the following finding:

“following slight improvement in her situation, she now seeks refuge in her religion from the haunting shadows of her experience. She is trying to ‘convert’ her attacker, hence her pitiable letter and visit to him in the jail and also her feeling she shouldn’t testify, treating this heinous crime as something between her and the defendant and outside the concern of the court____ One cannot forget that her forgiveness here is the product of a mind rendered seriously ill due to the defendant’s assault upon her.”

Id. at 146-147, 332 N.W.2d 757.

Burns now seeks relief in this court by way of habeas corpus. He contends that his constitutional right to confront his accusers was violated by the admission into evidence of L.L.’s preliminary hearing testimony.

This case presents an issue that is somewhat confusing: the relationship between the confrontation clause and the hearsay rule with its many exceptions. The rule against hearsay, of course, is riddled with exceptions. These exceptions vary among jurisdictions as to number, nature, and detail. See, e.g., Fed.Rules Evid. 803, 804.

The Sixth Amendment’s Confrontation Clause, made applicable to the states through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403-405, 85 S.Ct. 1065, 1067-1068, 13 L.Ed.2d 923 (1965), provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” If one were to read this language literally, it would require the exclusion of any statement made by a declarant not present at trial. See Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895) (“[T]here could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations”). If literally applied, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

The historical evidence leaves little doubt, however, that the Clause was intended to exclude most hearsay. See California v. Green, 399 U.S. 149 at 156-157, 90 S.Ct. 1930 at 1934, 26 L.Ed.2d 489 (1970). Moreover, underlying policies support the same conclusion. The United States Supreme Court has emphasized that the Confrontation Clause reflects a preference for fact-to-face confrontation at trial, and that “a primary interest secured by [the provision] is the right of cross-examination.” Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). In short, the Clause envisions

“a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. at 242-243, 15 S.Ct. at 339-340.

The Court, however, has recognized that competing interests, if “closely examined,” Chambers v. Mississippi, 410 U.S. 284 at 295, 93 S.Ct. 1038 at 1046, 35 L.Ed.2d 297 (1973), may warrant dispensing with confrontation at trial. See Mattox v. United States, supra, 156 U.S. at 243, 15 S.Ct. at 340 (“general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case”). Significantly, every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings. See Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934); Ohio v. Roberts, supra 448 U.S. at 64, 100 S.Ct. at 2538.

Recognizing these competing interests, the Supreme Court, in a series of cases, has sought to accommodate them. A general approach to the problem is discernible. As explained in Ohio v. Roberts:

“The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant, [citations omitted.]
“The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.’ ”

448 U.S. at 65, 100 S.Ct. at 2538-2539.

The “second aspect” discussed in Ohio v. Roberts concerns itself with evidence that has a sufficient “indicia of reliability.” As stated in Mancusi v. Stubbs

“The focus of the Court’s concern has been to insure that there ‘are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,’ [citation omitted] and to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,' [citation omitted]. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these ‘indicia of reliability.’"

408 U.S. 204 at 213, 92 S.Ct. 2308 at 2313, 33 L.Ed.2d 293 (1972).

The Supreme Court has applied the “indicia of reliability” requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the “substance of the constitutional protection.” Mattox, 156 U.S. at 244, 15 S.Ct. at 340. This reflects the truism that “hearsay rules and the Confrontation Clause are generally designed to protect similar values,” California v. Green, 399 U.S. at 155, 90 S.Ct. at 1933, and “stem from the same roots,” Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970). It also responds to the need for certainty in the workaday world of conducting criminal trials. Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539.

In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Here, the testimony given by L.L. while under oath at the preliminary hearing, held just 16 days after she was attacked, is the type of evidence that bears the appropriate “indicia of reliability.” The pivotal question is whether she was “unavailable” to take the stand and give testimony during Burns’ trial.

Under Wisconsin law, a declarant is unavailable if she “is unable to be present or to testify at the hearing because of death or then-existing physical or mental illness or infirmity.” § 908.04(l)(d), Wis. Stats. The Wisconsin law on this point is the same as Federal law. See Rule 804(a)(4), (b)(1).

The question here is whether the record fairly supports the Wisconsin court's finding that the state demonstrated that L.L. was suffering from a “then-existing mental illness”. Before I can get to that question, however, I must decide if the finding is one of fact.

When federal courts are asked in habeas cases to review a state court’s factual determinations which were based on the same record presented to it, the federal court must afford “considerable deference” to those determinations. Before I may reject them, the petitioner must prove by convincing evidence as required under 28 U.S.C. § 2254(d) that the state court’s factual findings were erroneous. Sumner v. Mata, 449 U.S. 539, 547, 550, 101 S.Ct. 764, 769, 770, 66 L.Ed.2d 722 (1981); see United States ex rel. Herat v. Franzen, 667 F.2d 633, 636 (7th Cir.1981). The state court findings of historical fact are entitled to a “high degree of deference” in this court and will only be rejected if I conclude that those findings lack even “fair support” in the record. Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 849-51, 74 L.Ed.2d 646 (1983); see Holleman v. Duckworth, 700 F.2d 391, 395 (7th Cir.1983); Collins v. Israel, 538 F.Supp. 1211, 1213 (E.D.Wis. 1982).

While the findings of historical fact are presumed correct and normally merit federal court deference, the legal conclusions drawn by state courts from those historical facts on the federal constitutional question raised are subject to independent review in this court. Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980). In the same fashion, “mixed” questions of law and fact are subject to independent federal review. See Nash v. Israel, 707 F.2d 298, 301 (7th Cir. 1983).

Clearly, therefore, the numerous state court findings of fact in this case are presumptively correct. However, the finding of “unavailability” in this case does have some resemblance to a “mixed” determination rather than a straight finding of fact. It clearly leans more, however, in the factual direction. This is so because at both the state and federal court level, the determination of “unavailability” is usually treated as a factual question left Jo the discretion of the trial judge; that determination to be reversed only if an abuse of discretion is shown. As the Second Circuit Court of Appeals stated on direct review of a district court’s “unavailability” determination in a federal criminal prosecution:

“Although appellant argues to us that in a case of temporary illness, ‘the convenience to the Government must give way to the rights of the accused,’ we think that in the first instance it is up to the district judge to decide if the witness is truly ‘unavailable’ — a finding that we would not be quick to overturn. Once this determination is made, the law is clear that prior testimony may be admitted when given — as here — in court, under oath, subject to cross-examination and on the very issue (identification) for which it was offered at trial.”

United States v. Bell, 500 F.2d 1287 at 1290 (2nd Cir.1974) (footnotes omitted). Also see 5 Wigmore, Evidence § 1406 (Chadbourn Rev.1974).

Although I admit it is a close question, I will proceed to consider the finding as “mixed.” I do so because the “unavailability” issue appears to take on a constitutional dimension of its own when analyzed in the context of the confrontation clause, as opposed to simply in the context of Wisconsin’s hearsay rules.

Accordingly, I will independently review the ultimate finding, viewing as presumptively correct the state court factual determinations that underpin it.

The finding that L.L. was suffering from a “then-existing mental illness” was made on January 16, 1981. The trial of this case began on March 2, 1981. The finding was based entirely on the testimony of Dr. Busby, who last examined L.L. in October 1980. In pertinent part, this is what Dr. Busby had to say:

Physically she was obviously very undernourished. Mentally she was what we call a catatonic stupor with hallucinations and delusions. What a layman refers to as almost like a basket case. Practically non-functional. Would stand in one spot and talk to the wall, refuse to eat, refuse to dress or undress, refused all medication, refused all communication on admission. (Ex. N at 6-7).
Q: And at the time that she left the hospital, what was her condition?
A: I would say that she was about maybe 10-20% improved. She was much better physically. She was eating, was dressing, was cooperating with the basic self-care. She was probably not hallucinating____ [She] was verbally agreeing to continue followup care outside of the hospital. Unfortunately, she didn’t keep that agreement. (Id. at 7).
Q: Did you form your opinion that she was at the time suffering from acute schizophreniform disorder to a reasonable degree of scientific [certainty] in your opinion?
A: Yes. (Id. at 8).
[L.L.’s parents] contacted me when she immediately went back on her agreement to come back to the office and refused to follow up with treatment. They contacted me, and I advised forcible rehospitalization, which they refused and declined, and over the next week or two in October they were in contact with me almost every day giving — me giving them advice as to how best to handle it at home, and then it was all through the month of November I had no contact with them at all, and then in December we had two phone calls in which they communicated to me the latest being as of last night that she’s about 10% better than when she became sick. In other words, she had slipped back. She was about 20% better when she came home from the hospital. She slipped back about 15 of that percent, approximately. I’m just guessing of course here, and she had gradually recovered maybe 5% more. So that she is able to eat and dress herself and will join the family in the main rooms of the house, which she did not do before admission, and will occasionally go out of the house, but does not participate in any of the ordinary activities that she used to do before.
Q: If she is not treated by herself or any other psychiatrist, will she ever recover?
A: I really couldn’t say. If this father’s report is accurate and that she has improved some without active treatment, psychiatric treatment, just with the family’s support, then it is possible that she would continue to improve over the x number of years, maybe two or three, maybe five or ten, and perhaps eventually recover spontaneously in that manner. It also is very common for such people to improve to a certain point and then plateau off and never recover the previous ability to function. It is also possible, of course, that she will reverse her stand and seek active help, and hopefully that would be successful and bring her out of it faster. As of right now we have no indication that that would be the case. (Id. at 9-10).
Q: Do you have an opinion, sir, as to what the impact on her would be given her current state if we were to apparently force her to come here and testify since she appears to be unwilling to do so?
A: Yes.
Q: And what would that opinion be, sir?
A: My opinion is that it is a high probability that it would cause anywhere from a moderate to a substantial relapse and return of her symptoms, in her illness in other words. (Id. at 11).

As for L.L.’s father, Dr. Busby testified:

The father stated that he wouldn’t stand in the way if she wanted to go, but he actively campaigned against her testifying and repeatedly informed me that he would not in any way go along with it or tolerate it, and any time she would even talk about it he would interrupt her conversation. He did try to turn it around in saying don’t you think it would make her sick, and I said of course I do, but I mean I felt this was his justification. He has some strong opinion that she should not do that.
Q: Would you say that he was being a typical protective father?
A: Yes, yes, very much so. In fact, he was that way almost disturbingly so in the last week of the hospitalization. In fact, I think that’s one reason she’s not getting treatment now, he will not force treatment on her. (Id. at 17).
Q: And also your opinion as to her ability to testify and the possible problems she would encounter if she did would also at least partially be based on the lack of progress that has been reported to you by her parents since October 18?
A: Partially so, yes. (Id. at 20).
Q: To what part, doctor, if you can relate does your prognosis relate to what the parents have told you?
A: Well, most of the prognosis in schizophrenia is really based on the nature of the beast, the nature of the illness and its history with hundreds and thousands of other people, and schizophrenia is notable for its difficulty in recovery in general, and when you notice 10 or 20% improvement in a month’s time, you naturally get hopeful that if the person follows through maybe you’ll beat the bad odds and this is one who’ll get well; and that’s why it’s very frustrating when the family then stands in the way of completing the treatment or following up on the treatment and sort of in effect reduces your prognosis. You have to predict that chances of her getting well are much reduced because of the failure to follow through with treatment afterward. (Id. at 21).

I have only quoted a portion of Dr. Busby’s testimony. I have, however, reviewed it in its entirety. To say the least, it is confusing. Perhaps because it is so confusing and internally inconsistent, the courts, Judge Zievers, and the Wisconsin Supreme Court majority have, I believe, misstated it.

Obviously, the two important issues here are the severity and probable duration of L.L.’s mental infirmity. The evidence presented on these questions must be reviewed with particular attention to its quality as a predictor of what L.L.’s mental condition would be in March of 1981, when this case went to trial. With this in mind, what were the findings as to severity and probable duration?

To find either severity or duration, we must know what the illness is. And here, we must keep in mind, as noted by the Wisconsin Supreme Court (notes 2 and 3) that schizophrenia and acute schizophreniform disorder are different diseases. Although they have identical manifestations, schizophrenia may last for several years, while acute schizophreniform disorder lasts from two weeks to six months.

Confronted with Dr. Busby’s testimony, Judge Zievers stated he was

“... satisfied that ... [L.L.] had been diagnosed and was suffering from acute schizophreniform disorder which the court finds continues to exist ... so as to warrant a declaration of unavailability.”

As Justice Abrahamson noted in her Wisconsin Supreme Court dissent, it had to be assumed that

“... the circuit court understood the doctor’s testimony, the medical terms, and the characteristics of acute schizophreniform disorder before it made a finding of fact that the witness suffered from this particular disorder.”

112 Wis.2d at 154, 332 N.W.2d 757.

In criticizing the majority analysis, Justice Abrahamson went on to note:

“Because a finding that the witness’s mental illness was short-term is incon.sistent with the circuit court’s ruling that the witness was unavailable, the majority is compelled to ignore the circuit court’s finding of acute schizophreniform disorder (supra, p. 136, n. 6 [332 N.W.2d 757]) in order to reach the result it does, that is, upholding the circuit court’s ruling that the witness was unavailable. Rather than accept the circuit court’s finding of fact as to the nature of the mental illness or infirmity, the majority substitutes its own findings for that of the circuit court. The majority finds the witness suffered from ‘schizophrenia’ (supra, p. 140 [332 N.W.2d 757]) and ‘became-, a catatonic schizophrenic’ (supra, p. 146 [332 N.W.2d 757]).”

I agree with the Wisconsin Supreme Court dissenters, Justice Abrahamson and Chief Justice Nathan Heffernan, that the majority finding that L.L. suffered from schizophrenia and is a catatonic schizophrenic is against the great weight and clear preponderance of the evidence. At best, Dr. Busby’s confusing diagnosis supports a finding of acute schizophreniform disorder, not schizophrenia.

Since L.L.’s condition was temporary, the state is not entitled to presume that it will continue. It highlights what should have been obvious here, that L.L. would have to be examined again prior to the start of the trial. See also Jones v. Nabisco, Inc., 95 F.R.D. 25, 26 (E.D.Tenn.1982) (court defers consideration of witness unavailability motion; “even though the prognosis, that Mr. Smith will regain his health to such an extent that he will be able to testify at trial, appears dim at this time, that possibility remains viable. The determination of whether hearsay evidence is admissible under the provisions of Rule 804(b)(5), supra, can best be made at trial.”); United States v. Amaya, 533 F.2d 188, 191 (5th Cir.1976) (“the duration of an illness is a proper element of unavailability”); United States v. Faison, 679 F.2d 292, 297 (3d Cir.1982).

Furthermore, the Wisconsin Supreme Court’s statement that “there was a high probability of a relapse into her prior symptoms” if she testified, does not find support in the record. Id. 112 Wis.2d at 147, 332 N.W.2d 757. To the extent the Court’s statement turned on Dr. Busby’s testimony, it is inaccurate because his testimony was erroneously restated. Dr. Busby did not testify that L.L. had a high probability of a relapse. Rather, his testimony was that, based on personal observations made almost five months before trial and without benefit of knowledge that L.L. was actually voluntarily facing her attacker on a daily basis, L.L. may have had only a “moderate” probability of relapse. No matter how much deference may be given to a court’s finding, this one simply cannot substantiate a conclusion that at the time of trial L.L. was suffering so much that requiring her to “testify again has a significant probability of worsening the condition.”

The Supreme Court’s conclusion is also troubling to the extent that it was based on the Court’s own reckoning that L.L.’s attitudes toward testifying and toward her attacker, attitudes which may be broadly described as “religious”, were symptoms of her mental disease. For a court to venture out on a path of psychiatry upon which it is not qualified to travel is unwise; at best, it risks an erroneous diagnosis. At worst, it gives credence to conduct which might better be viewed as recalcitrance, conduct which a court would not otherwise tolerate. As the court itself wrote, “But, however one may admire or sympathize with her trying to cope by forgiving her attacker, the crime of which this defendant was convicted was also a crime against society and it is society which is also wronged by his actions. Prosecution and punishment of offenders cannot be made contingent on the willingness of their victims to forgive the wrongdoer.” 112 Wis.2d at 146-147, 332 N.W.2d 757. Judge Corbett’s analysis is also flawed by the same tendency to permit recalcitrance to substitute for an actual diagnosis of mental infirmity:

Now, from that by the evidence that Judge Zievers had had in front of him and which now I have before me in another form from conversations between [L.L.] and Assistant District Attorney Lingle that this lady has expressed a disbelief in the court system, refuses to take an oath, expressed the belief that it’s wrong to punish him, and I’m saying there’s no longer the right to take an eye for an eye and a tooth for a tooth, this sort of thing, retribution, it would make anyone in their right mind wonder why should I bring anyone to court in this state who says she won’t testify, won’t even take an oath and doesn’t believe that it’s proper and doesn’t think the court system is right. Now, she may be right, but the rest of it I don’t know.

The only finding made at the time of trial was a finding made on almost no record whatsoever. Judge Corbett made a ruling that L.L. was to remain unavailable based on Judge Zievers’ earlier findings. However, a transcript of the proceedings before Judge Zievers was not then available. It appears that Judge Corbett’s understanding of Dr. Busby’s testimony came from the Assistant District Attorney’s recollection of it. It is also possible that this testimony may have been misstated to Judge Corbett. The Assistant District Attorney “informed the court that the witness suffered from ‘a schizoid disorder’ and that Dr. Busby’s prognosis was that ‘without psychiatric counseling that it would take approximately 3-4 years before she could recover if she would.’ ” 112 Wis.2d at 158-159, 332 N.W.2d 757. Furthermore, Judge Corbett ignored evidence that L.L. was again carrying out normal activities, such as communicating, traveling on her own, and, most significant of all, facing her alleged attacker. This factual evidence, as the dissenting Wisconsin Justices pointed out, is consistent with the diagnosis of a mental illness that could have run its course. Id. at 159, 332 N.W.2d 757. Also, Judge Corbett may have shifted the burden of proof from the state (which offered L.L.’s testimony) to Burns to prove L.L.’s “unavailability”:

If there was anything else available I would have expected opposing counsel to bring it forth____ I am not the reviewing court for Judge Zievers. In order for me to do anything thoroughly with this subject I would have to hear it practically anew as of this time. I so indicated at the scheduling conference. I agreed to hold such a hearing if the people were brought here. Again, so no fault can be found on the record with you, Mr. Bramscher, I am aware of the fact that you attempted but were not able to make any contact with these people.

All in all, the course of events in this case leads me to believe that the state did not meet its “good faith” duty to procure the testimony of L.L. or to prove at the time of trial her unavailability. In Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), the court wrote: “In short, a witness is not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirements unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. The state made no such effort here, and, so far as this record reveals, the sole reason why Woods was not present to testify in person was because the state did not attempt to seek his presence. The right óf confrontation may not be dispensed with so lightly.” Id. at 724-725, 88 S.Ct. at 1321-1322. Simply stated, the state did not take “reasonable”, see Ohio v. Roberts, 448 U.S. at 74, 100 S.Ct. at 2543, steps to make L.L. available at Burns’ trial. The crucial fact underlying this belief is that the state actually attempted, after it learned that L.L. was visiting Burns in prison, to procure L.L.’s presence at trial. The Assistant District Attorney subpoenaed L.L. and then discussed her cooperation over the phone with L.L. However, the prosecutor’s attempts were rebuffed. L.L. read passages from the New Testament relating to forgiving one’s brothers, and told the Assistant District Attorney that “if you have a dispute with your brothers you’re not to go to the courts but rather you’re to confront your brother with the wrong and if your brother admits it and you can settle it between yourselves then you are to forgive your brother and you will be forgiven in heaven, or something like that.” She quoted other passages stating that there should be “no lawsuits before pagans, and that she did not believe in the court system, and she was not going to testify” because she had forgiven the defendant. After this, the state elected not to seek enforcement of L.L.’s subpoena, and instead rely on her earlier testimony. It would seem that this path was taken not because of a “then existing ... mental illness” but because the state had an uncooperative witness on its hands.

For the foregoing reasons, I conclude that the continued reliance on a finding of “unavailability,” a finding made on a confused and stale record, and the resulting use of L.L.’s previous testimony instead of her live appearance at trial, deprived Burns of his Sixth Amendment right to confront a witness against him. Having so found, I turn to the next question: What consequences flow from the denial of a right in this case?

Just as the hand, the ear and the heart are parts of the body, the confrontation clause is made up of different components. The clause serves three basic purposes: (1) that the testimony of the witness be under oath; (2) that the witness be subjected to cross-examination; and (3) that the witness be present so that the jury may observe his or her demeanor. See California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970). Like the hand, ear and heart, however, the components of the confrontation clause differ in importance. Without question, the ability to cross-examine, like the heart, is paramount. In fact, confrontation is almost synonymous with cross-examination. It is the touchstone of the right. See 5 Wigmore, Evidence §§ 1395-96, pp. 150-55. As Professor Wigmore states in his treatise:

“The question, then, whether there is a right to be confronted with opposing witnesses is essentially a question whether there is a right to cross-examine. If there has been a cross-examination, there has been a confrontation. The. satisfaction of the right of cross-examination ... disposes of any objection based on the so-called right of confrontation.
“Nevertheless, the secondary advantage, incidentally obtained for the tribunal by the witness’ presence before it — the demeanor-evidence — is an advantage to be insisted upon whenever it can be had. No one has doubted that it is highly desirable, if only it is available. But it is merely desirable. Where it cannot be obtained, the requirement ceases. It is no essential part of the notion of confrontation; it stands on no better footing than other evidence to which special value is attached; and just as the original of a document ... or a preferred witness ..., may be dispensed with in case of unavailability, so demeanor-evidence may be dispensed with, in necessity. Accordingly, supposing that the indispensable requirement of cross-examination has been satisfied, the only remaining inquiry is whether the demeanor-evidence, to be obtained by the witness’ production before the tribunal, is available.”

Id. at § 1396, pp. 154-55 (footnote and citations omitted, emphasis in original). Professor Wigmore analyzes this question further, stating:

“There never was at common law any recognized right to an indispensable thing called confrontation as distinguished from cross-examination. There was a right to cross-examination as indispensable, and that right was involved in and secured by confrontation; it was the same right under different names. This much is clear enough from the history of the hearsay rule ..., and from the continuous understanding and exposition of the idea of confrontation ____ It follows that, if the accused has had the benefit of cross-examination, he has had the very privilege secured to him by the Constitution.

Id. at § 1397, p. 158 (footnote and citations omitted, emphasis in original). Also see California v. Green, 399 U.S. at 160-61, 90 S.Ct. at 1936.

In this case, the testimony of L.L. that the jury heard had been given under oath in a court of law. She was cross-examined extensively, particularly on the issue of identification. Thus two of the three, including the most important, aspects of confrontation were present here. The only missing piece is the ability of the jury to observe, judge the demeanor if you will, of L.L. in the courtroom. In this case, that deficiency is harmless beyond a reasonable doubt.

Assume for a moment that L.L. were dead when this case came to trial. Under 908.04(l)(d), she would have been legally unavailable. Her preliminary hearing testimony would obviously have been admissible under 908.045(1). The fact that the jury could not see her and judge her demeanor would be of little moment. Necessity would allow her former testimony to be used.

Other examples are abundant. Had L.L. appeared at the trial and refused to testify, she would have been “unavailable” under 908.04(l)(b), and her former testimony would have been used. If the state simply could not, despite a good faith effort, find her, she would have been “unavailable” under 908.04(l)(e), and her former testimony would have been received.

In all of these examples, the right to observe the witness while testifying is sacrificed. Necessity, of course, is the reas,on. In this case the state cannot point to necessity, but the examples demonstrate that the aspect of confrontation missing here is not to be given the same significance as other aspects of the clause, most importantly, cross-examination. Had there not been a preliminary hearing, the state would have been out of luck. Even a handwritten or videotaped statement of L.L. could not have been used because there would have been no cross-examination. So an aspect of the right to confront was abridged, however, Burns had previously had the opportunity to vigorously and thoroughly probe L.L.’s testimony through cross-examination.

Just for the sake of argument, I turn to some speculation as to what would occur if this case were retried. If L.L. was again found to be unavailable, the transcript would again be read, and a reasonable jury would convict, as the first one did. If L.L. was available and testified in accordance with her prior testimony, there is no doubt, again, that Burns would be convicted. The only issue raised at trial and at the preliminary hearing was identification; there is ample evidence in the record linking Burns to the attack of both women. On the other hand, if L.L. would, for any reason (including religion), decline to testify, the transcript testimony would be used, either to refresh her memory, or as substantial evidence against Burns, or both. Again, a jury would be faced with the same evidence which the first jury found sufficient to convict Burns. In addition, if L.L. took the stand and said things like “I forgive him” etc., the natural question would be “what for?” An experienced prosecutor would have little trouble drawing damaging testimony from L.L. that would probably hurt Burns more than he claims her absence did. Considering the “probable impact of the [error] on the minds of an average jury”, cf. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969), cited in Mattes v. Gagnon, 700 F.2d 1096, 1105 (7th Cir.1983), I do not believe that it would do anything different.

Is it fair to engage in speculation? I do not engage in it lightly, nor am I unaware of those who caution against it. See, e.g., United States ex rel. Raymond v. People of State of Illinois, 455 F.2d 62, 75 (7th Cir.1972) (Pell, J., dissenting and concurring) (“the result of the jury’s verdict might have been the same with this evidence before it but for us to say so could only be on a basis of speculation____ In other words, I am unable to declare a belief that it was harmless beyond a reasonable doubt.”). However, I am persuaded that the speculation which I engage in is not unfair. I believe that it is justified by the factual background of this case. In so speculating, I believe I am doing so within the spirit of Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (195(), in which Justice Frankfurter wrote:

An appellate court should not confidently guess what defendant’s attorney might have found useful for impeachment purposes in withheld documents to which the defense is entitled. However, when the very same information was possessed by defendant’s counsel as would have been available were error not committed, it would offend common sense and the fair administration of justice to order a new trial. There is such a thing as harmless error and this clearly was such.

Id. at 371, 79 S.Ct. at 1234. Since I do not believe it is unfair to speculate what might happen at a trial if L.L. was present, I believe that this case is the converse of cases such as Clancy v. United States, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961), in which it was held that the harmless error doctrine must be strictly applied, since courts cannot “speculate whether [Jencks material] could have been utilized effectively” at trial. See also Goldberg v. United States, 425 U.S. 94, 111 n. 21, 96 S.Ct. 1338, 1348 n. 21, 47 L.Ed.2d 603 (1976). Here, the issue was identity, not that a brutal assault did not occur. It is not the kind of case where credibility or honesty of the witness is put in serious question. Were this the kind of case where the ability of the jury to “see” the witness, or “size her up,” like an accomplice case or one where the defense had valuable impeaching tools to use (prior conviction, bias, or prejudice, for example), the absence of the live witness on the stand would take on greater significance. Here, on the issue of identification, it doesn’t. All of this leads me to the inescapable conclusion that although a constitutional error was committed, it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Not only was the error harmless but, in the real world, it was the defendant who benefited from L.L.’s nonappearance. It was to his advantage to have the sordid details of these brutal acts read to the jury by a disinterested person from a cold transcript. If anyone was harmed by L.L.’s nonappearance, it was the state. Certainly, the state stood to benefit from any jury sympathy and outrage which conceivably could have been aroused if L.L. appeared and testified in detail about the events.

For the reasons stated, the petition for a writ of habeas corpus is DENIED.

SO ORDERED.

      . The crimes listed here come from the Judgment of Conviction. The Wisconsin Supreme Court, in its opinion, lists them as first-degree sexual assault, endangering safety by conduct regardless of life, one count of kidnapping, robbery and verbally threatening to injure another.

      . Burns’ only challenge to his conviction for the abduction of M.S. was that the two cases were tried together and that L.L.’s testimony laid the groundwork for both convictions. Since I cannot sustain Burns’ claims as to L.L.’s case, his claims as to the case involving M.S. necessarily fall short.


author: PANNER, Chief Judge.

text:
    Eufemia LaMADRID, for herself and as next friend for her minor son, Joey LaMadrid; Debbie Viskov, for herself and as next friend for her minor son, Jeremy Gerber, on behalf of themselves and all others similarly situated, Plaintiffs, v. Leo HEGSTROM, individually and in his official capacity as Director, Department of Human Resources of the State of Oregon; and Keith Putman, individually and in his official capacity as Administrator, Adult and Family Services Division of the State of Oregon; Margaret Heckler, individually and in her official capacity as Secretary, United States Department of Health and Human Services, Defendants.
    Civ. No. 84-1269-PA.
    United States District Court, D. Oregon.
    Dec. 27, 1984.

      Lorey H. Freeman, Amy Veranth, Michael H. Marcus, Legal Aid Service, Portland, Or., for plaintiffs.
    Lawrence Young, Asst. Atty. Gen., Dept, of Justice, Salem, Or., for defendant Leo Hegstrom and Keith Putman.
    Laury Hennings, Asst. U.S. Atty., Portland, Or., for defendant Margaret Heckler.
   PANNER, Chief Judge.

On October 11, 1984, plaintiffs Eufemia LaMadrid, Joey LaMadrid, Debbie Viskov, and Jeremy Gerber filed a complaint requesting a temporary restraining order, a preliminary injunction, and permanent injunctive and declaratory relief. Defendants are Leo Hegstrom, Director, Department of Human Resources of the State of Oregon (DHR), Keith Putman, Administrator, Adult and Family Services Division of the State of Oregon, and Margaret Heckler, the Secretary of the Department of Health and Human Services (DHHS). Plaintiffs also moved for class certification. Pending final resolution, defendants agreed to temporarily grant the requested relief so the motions for a TRO and preliminary injunction were withdrawn.

Plaintiffs assert four claims for relief. First, the Oregon defendants’ policy of counting the money received from a personal injury claim as “income” rather than a “resource” violates the requirements of the Social Security Act (SSA), 42 U.S.C. §§ 602(a)(7), 602(a)(10), and 602(a)(17), and applicable federal regulations. Second, the Oregon defendants’ policy of counting the money received from a personal injury claim as “income” while treating money received for damages to personal property as a “resource” denies plaintiffs the equal protection of the laws guaranteed by the fourteenth amendment. Third, the Oregon defendants’ policy of failing to notify plaintiffs of the “lump-sum” disqualification policy until after plaintiffs had structured the settlement of their personal injury claim violates plaintiffs’ rights under the SSA and applicable federal regulations. Fourth, the Oregon defendants’ policy of failing to notify plaintiffs of the “lump-sum” disqualification policy at the time defendants claim their share of a personal injury award or settlement to satisfy their lien or at any time prior to the plaintiffs’ actual receipt of the award violates plaintiffs’ rights under the SSA.

I DENY plaintiffs’ motion for class certification.

Plaintiffs and defendants have filed a stipulated agreement which dismisses the third and fourth claims. I find for the plaintiffs on claims one and two. The Oregon defendants’ policy of counting . the money received from a personal injury claim as “income” rather than a “resource” violates the requirements of the SSA. Their policy of counting money received from a personal injury claim as “income” while treating money received for damage to personal property as a “resource” denies plaintiffs the equal protection of the laws as guaranteed by the fourteenth amendment.

FACTS

Plaintiff Eufemia LaMadrid was burned ' in a fire in April, 1982. Much of her body was severely burned and part of her left hand was amputated as a result. Her left hand and arm are virtually useless. In January, 1984, Ms. LaMadrid settled her personal injury claim resulting from this fire. After satisfying the Adult and Family Services Division lien and paying attorneys’ fees, Ms. LaMadrid received $4,750.00 from her $15,000.00 award. She spent this money to replace items lost in the fire and had spent it all by February 1, 1984. Defendants applied the “lump-sum” rule to this $4,750.00 and found Ms. LaMadrid and her son Joey ineligible for Aid to Dependent Children (ADC) benefits for slightly over fifteen months.

Plaintiff Debbie Viskov was severely injured in a car accident and required surgery and extensive hospitalization. Ms. Viskov received $6,893.99 from her personal injury settlement after the Adult and Family Services Division satisfied its lien and attorneys’ fees and medical bills were paid. Ms. Viskov and her son Jeremy Gerber were found ineligible for ADC benefits for over twenty-four months pursuant to defendants’ “lump-sum” policy.

I. CLASS CERTIFICATION.

Plaintiffs moved for certification of a class of all Oregon ADC applicants or recipients who have been, are being, or will be denied ADC benefits or have had their ADC benefits terminated by defendants solely because a member of their family has received a “lump-sum” payment as compensation for a personal injury. Plaintiffs meet the requirements of Fed.R.Civ.P. 23(a).

Where a final judgment will, as a practical matter, produce the same result as formal class-wide certification, a court may exercise its discretion and deny class certification. James v. Ball, 613 F.2d 180, 189 (9th Cir.1979), rev’d on other grounds, 449 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981). Federal Rule of Civil Procedure 23(b)(3) requires that a class action be found superior to other available methods for the fair and efficient adjudication of the controversy before a class is certified. See Pattillo v. Schlesinger, 625 F.2d 262, 265 (9th Cir.1980) (district court did not abuse its discretion in denying class certification when existing administrative proceedings were superior to a class action).

Plaintiffs in the present ease request injunctive and declaratory relief. As a practical matter, my finding that defendants’ policies violate the SSA and the Equal Protection Clause, and my order that defendants be enjoined from applying these policies will apply to and benefit the entire class. In addition, the stipulation between plaintiffs and the Oregon defendants will provide adequate notice to members of the putative class. In the present case, a class action would not be superior to other methods for adjudication. I DENY plaintiffs’ motion for class certification.

II. STATUTORY AND REGULATORY BACKGROUND.

The Aid to Dependent Children (ADC) program is a joint federal and state program established under the SSA, 42 U.S.C. § 601, et seq., which provides monthly financial support for dependent children and their caretaker relatives. The family’s income and resources are taken into account in determining ADC eligibility and the amount of benefits. 42 U.S.C. § 602(a)(7); 45 C.F.R. § 233.20(a)(3).

A family is not eligible for ADC if its “resources” are above the allowable resource limits. 42 U.S.C. § 607(a)(7)(B), 45 C.F.R. 233.20(a)(3)(i)(B), OAR 461-04-090. In addition to the home they live in, ADC families may retain up to a maximum of $1,000.00 in resources, one licensed motor vehicle with an equity value up to $1,500.00, household furnishings, clothing, and personal incidentals. Id.

III. THE LUMP-SUM RULE.

In 1981 Congress amended the Social Security Act as part of the Omnibus Budget Reconciliation Act (OBRA), Pub.L. 97-35 (1981). This amendment, 42 U.S.C. § 602(a)(17), provides:

A State plan for aid and services to needy families with children must ... (17) provide that if a person ... receives in any month an amount of income which, together with all other income for that month not excluded under paragraph (8) exceeds the State’s standard of need applicable to the family of which he is a member — (A) such amount of income shall be considered income to such individual in the month received, and the family of which such person is a member shall be ineligible for aid under the plan for the whole number of months that equals (i) the sum of such amount and all other income received in such month, not excluded under paragraph (8) divided by (ii) the standard of need applicable to such family, and (B) any income remaining (which amount is less than the applicable monthly standard, shall be treated as income received in the first month following the period of ineligibility specified in subparagraph (A).

Under this amendment, a recipient receiving a lump-sum of income would be expected to live on this sum for as many months as are derived by dividing the income by the state’s standard of need.

The Department of Health and Human Services (DHHS) issued a final rule implementing the OBRA mandated changes on February 5, 1982. 45 C.F.R. § 233.-20(a)(3)(ii)(D). This regulation restates the mandate of the Act that, if a family receives lump-sum income, it is ineligible for aid for the full number of months derived by dividing the sum of the lump-sum and other income by the monthly need standard.

Oregon Administrative Rule (OAR) 461-04-512 states that an ADC application must be denied or a grant closed when a family receives a lump-sum payment of income which exceeds the family’s needs at ADC standards. OAR 461-04-105(3) and (3)(b) state that any amount received from the settlement of a personal injury claim shall be treated as income.

IY. STANDARD OF REVIEW.

The applicable standard of review provides:

[T]he reviewing court shall set aside agency action ... found to be (A) arbitrary and capricious, an abuse of discretion or otherwise not in accordance with law____

Administrative Procedure Act, 5 U.S.C. § 706(2). This is a highly deferential standard, presuming agency action to be valid. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). When reviewing the propriety of defendants’ interpretation of the lump-sum rule, I must reject the scheme only if I find that it lacks a reasonable basis. Dandridge v. Williams, 397 U. S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). I find no reasonable basis for such a regulation.

V. OAR 461-04-105(3)(b) WHICH REQUIRES PERSONAL INJURY CLAIMS TO BE TREATED AS INCOME VIOLATES THE SSA.

I find that OAR 461-04-105(3)(b) violates the SSA by subjecting personal injury awards, which are resources, to the “lump-sum” rule which Congress intended to apply only to income. I base my finding on the following: (1) legislative history and agency interpretations, and (2) the common meaning of income.

There is no definition of “income” in either OBRA or the AFDC statute. In attempting to define “income” as used in section 602(a)(7) of the SSA, the court in Turner v. Prod, 707 F.2d 1109, 1114 (9th Cir.1983), cert. granted, — U.S. -, 104 S.Ct. 1412, 79 L.Ed.2d 739 (1984), stated that the definition of that term was ambiguous from the statute. I turn first to an examination of the legislative history.

A. Legislative History.

The legislative history of section 602(a)(17) does not clearly define “income.” The recommendations of the Senate Finance Committee state:

Count Lump-sum payments — Under present law, any payments ' that meet the definition of income {e.g. retroactive social security benefits) are counted as income in the month of receipt and any of the payment that is not spent in that month is usually considered a resource in the months thereafter.
The committee amendment would require that large payments, together with other income remaining after the application of disregards, be considered available to meet ongoing needs in the AFDC program ...

S.REP. NO. 97-139, 97th Cong., 1st Sess. 436, reprinted in 1981 U.S.CODE CONG. & AD.NEWS 396, 435, 702 (emphasis added). The same report, at 505 (U.S.CODE CONG. & AD.NEWS at 771), states:

The committee believes that lump-sum payments should be considered available to meet the ongoing needs of an AFDC family. The present treatment of such payments has the perverse effect of encouraging the family to spend such income as quickly as possible in order to retain AFDC eligibility. The committee amendment would require that such income received in a month be considered available as income in the month it is received and also in future months.

It is clear that the language of the statute and the legislative history show that Congress intended only that the “lump-sum” rule apply to “income.”

I adopt the reasoning of the court in Reed v. Lukhard, 591 F.Supp. 1247 (W.D. Va.1984) at page 1255, that Congress’s explicit reference to “payments that meet the definition of income” compels the conclusion that Congress thought there were lump-sum payments that were not income. The court in Reed found that defendant’s interpretation of the lump-sum rule which included personal injury awards as income was unreasonable and invalid. Id. at 1257.

The then Secretary of the Department of Health and Human Services,. Richard Schweiker, stated in House Subcommittee Hearings on this bill: “When a large amount of money is received as lump sum — for example, an inheritance — we will consider it as income available for support not only in the month it is received, but to meet future needs.” Spending Reduction Proposals: Hearings Before the Senate Committee on Finance, 97th Cong., 1st Sess. 18 (March 17, 1981). Mr. Schweiker’s statement that he would consider such a lump-sum payment as income indicates it would not, under the meaning of income as understood at the time, actually be considered income. Because Congress did not amend the definition of income with the OBRA, I must conclude that it did not intend to alter this definition.

In giving examples of lump-sum payments included in the amendment, Congress consistently used the example of retroactive social security benefits. These benefits differ from personal injury awards in that the benefits are merely an accumulation of payments which would be income if the payments were received on a monthly basis instead of in a lump-sum. Personal injury awards are not an accumulation of periodic payments which would be income otherwise; they are replacements for lost resources. I conclude that Congress did not intend to include lump-sum payments of this type in its definition of lump-sum payments.

B. Prior Agency Interpretations.

Congress can be presumed to be aware of the agency definition of income as developed by HHS and to have incorporated it into the “lump-sum” statute. Merrill Lynch, Pierce, Fenner and Smith v. Curran, 456 U.S. 353, 382 n. 66, 102 S.Ct. 1825, 1841 n. 66, 72 L.Ed.2d 182 (1982). Congress itself never developed a definition of income particular to AFDC. Therefore, in interpreting income, I examine how HHS interpreted income prior to the enactment of OBRA.

In DHHS’s “Brief on Behalf of the United States” as amicus curiae in Lockhart v. Harden, No. C74-390A (1974) at p. 18, the agency argued that lump-sum payments such as child support arrearages must be treated as income. The agency contrasted this treatment to the payments of an award of damages which would not be treated as income in 1974. This position indicates that HHS did not consider payment of an award of damages as income.

In a settlement arising from the case of Underwood v. Harris, No. 76-749 (D.D.C., filed March 22, 1976), an HEW instruction told the states that refund checks were to be treated as resources, not as income, for AFDC purposes. Program Instruction SSA-AT-80-3 (OFA), Feb. 4, 1980. These checks were reimbursements for unauthorized tax and utility cost increases. The checks were, according to agency policy, an amount which the family should not have been deprived of in the first place and, therefore, should not be treated as income. Personal injury awards are also reimbursement for items which the recipients should not have been deprived of and are not income.

DHHS continues to recognize that payments which do not represent an increase in value are not income. In interpreting whether money from the sale of a resource was exempt under the lump-sum rule, HHS stated:

[T]he change from a non-liquid asset, e.g., a bicycle valued at $50 to cash of $50 does not change the total value of the assets held and such resource would be exempt if the allowable statutory amount were not exceeded.

47 Fed.Reg. 5657 (1982).

In Taggart v. Perales, CV 83-159-T (W.D.N.Y. Settlement filed Apr. 13, 1984), the court adopted a consent decree which found that settlement of a worker’s compensation claim was not to be treated as income. The decree was based in part on the Secretary’s statement that if a worker’s compensation payment is actually a settlement for the loss of an individual’s body or body part, the payment would be a resource. I find that personal injury awards are payment for the loss of a body part. Therefore, under the Secretary’s own interpretation, these payments should be considered resources. DHHS’s definition of the term income both before and after OBRA was enacted show that the agency never interpreted personal injury damage awards as income. I find that Congress was aware of these definitions when enacting OBRA and intended to define income in the OBRA as the agency had defined it.

C. Congressional Purpose.

A statute should be interpreted in light of the purpose Congress sought to serve by its enactment. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 608, 99 S.Ct. 1905, 1911, 60 L.Ed.2d 508 (1979). The present case involves two differing Congressional purposes. The purpose of the OBRA was to restrain federal spending. S.REP. NO. 97-139, 97th Cong., 1st Sess. 2-3, reprinted in 1981 U.S.CODE CONG. & AD.NEWS 396, 397-8. In interpreting the OBRA as it relates to the definition of earned income under AFDC, the court in James v. O’Ban-non, 715 F.2d 794, 801 (3d Cir.1983), examined the purpose of OBRA and AFDC. The court stated that the purpose of the OBRA amendments is to reduce or eliminate welfare benefits for those considered by Congress to be less needy than those completely without resources. Id. at 808-09. The purpose of the AFDC program is to provide financial assistance to needy dependent children and the parents or relatives who live with and care for them. Id. The court in Turner v. Prod, supra at 1121, noted that the Congress which enacted OBRA left intact the statutory purposes of the AFDC statute. The court noted that it was incumbent for a court to accommodate the purposes of both statutes. I find that both the purpose of reducing or eliminating welfare benefits in the long run and the purpose of helping parents attain capability for self-support is achieved if personal injury awards are considered resources and the recipients are allowed to use these awards to attain a measure of economic independence. This interpretation of “income” is consistent with the purposes of both statutes.

D. The Common Meaning Of Income.

When Congress uses terms that have a settled, established meaning, a court must infer, unless the statute otherwise dictates, that Congress meant to incorporate that established meaning into the statute. Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979). The dictionary definition is a logical starting point for determining the common established meaning of “income.”

Income — the amount of money or its equivalent received during a period of time in exchange for labor or services, from the sale of goods or property, or as profits from financial investments.

AMERICAN HERITAGE DICTIONARY 665 (new college ed. 1976). BLACK’S LAW DICTIONARY 687 (5th ed. 1979), defines income as:

[T]he return in money from one’s business, labor, or capital invested; gains, profits, salary, wages, etc. ... The true increase in amount of wealth which comes to a person during a stated period of time.

These common definitions of income all include the concept of gain. See Reed v. Lukhard, 591 F.Supp. 1247, 1256 (W.D. Va.1984).

Plaintiff LaMadrid’s award was used to satisfy the Adult and Family Services lien and to pay attorney’s fees. She used the remainder of the money to replace items lost in the fire. She has no measurable gain from receipt of this award.

Plaintiff Viskov also used the bulk of her personal injury settlement to satisfy the Adult and Family Services lien and her attorney’s fees and medical bills. She also has no measurable gain from receipt of this settlement.

A personal injury award does not increase the measurable worth of the individual receiving the award. Defendants recognize that an award for property damage is an award to replace something lost, like a car or a stove. A personal injury award likewise compensates a person for loss of a resource, whether it be a lost body part or loss of the ability to function in a certain manner. Compensation for personal injuries functions to restore the recipient to the status she or he enjoyed prior to the injury. A personal injury award merely serves to make the person “whole” or to restore what was lost by the injury. There is not the measurable gain which is an essential part of the common definition of “income.”

While no amount of money can actually replace a lost body part, the concept of damages has always been viewed as a way to make the injured party whole. See Kassman v. American University, 546 F.2d 1029, 1033 (D.C.Cir.1976). Compensation for injury to, or loss of a body part involves not only the replacement expense of making the person whole by compensating for the actual loss of a body part or function but making the person whole while attempting to teach the person new functional and vocational skills. These personal injury awards also do not mean a measurable gain to the recipient because of the extra expenses incurred in paying medical bills.

E. Other Statutory Interpretations Of Income.

The Supreme Court has defined income as “the gain derived from capital, from labor or from both combined” for purposes of the sixteenth amendment. Eisner v. Macomber, 252 U.S. 189, 207, 40 S.Ct. 189, 193, 64 L.Ed. 521 (1920). The Internal Revenue Code (IRC) provides that gross income does not include the amount of any damages received on account of personal injuries or sickness. 26 U.S.C. § 104. In Commissioner of Internal Revenue v. Glenshaw, 348 U.S. 426, 431, 75 S.Ct. 473, 477 n. 8, 99 L.Ed. 483 n. 8 (1955), the Court noted that under the IRC, personal injury recoveries are non-taxable on the theory that they correspond to a return of capital. The Court stated that damages for personal injury are compensatory only. Id.

The court in Reed, supra at 1257, concluded that the settled meaning of “income” as expressed by the Supreme Court and in common usage has not been altered by the AFDC statute. The Reed court found that defining personal injury awards as income was totally irrational and in conflict with the statutory scheme of Congress. The court stated that there was no reason to apply a different meaning to “income” under the AFDC statute than under the IRC. Id.

In Betson v. Cohen, 587 F.Supp. 121, 126-27 (E.D.La.1983), the court based its decision that personal injury awards could be treated as income on the specific exemption from gross income in the IRC for personal injury awards. The AFDC statute does not contain such an exemption. However, as the Reed court noted, this analysis is inconsistent with both the Supreme Court definition of income and the Glenshaw determination that damages are compensatory. Congress can be presumed to be aware of interpretations of “income” by the Court and of the common meaning of the word. Perrin, supra. If Congress had intended to include personal injury awards in the definition of income, it would have specifically defined income differently in the AFDC statute than in the IRC. Because Congress made no special definition of “income” under the AFDC statute, I find that it intended to use the commonly used definition which would exclude personal injury awards.

The parties have recently submitted copies of DHHS’s proposed regulations entitled “Counting Windfalls as Income.” 49 Fed.Reg. 45,561 et seq. The proposed regulation states, in part:

When the AFDC assistance unit’s income, after applying applicable disregards, exceeds the state need standard for the family because of receipt of nonrecurring lump sum income (including for AFDC, Title II and other retroactive monthly benefits and payments in the nature of windfall, e.g., inheritances or lottery winnings ...)

(Emphasis added.) The only difference between the proposed regulation and the regulation previously discussed in this opinion, 45 C.F.R. 233.20(a)(3)(ii)(F), is the addition of the underlined material. In essence, the new, proposed regulation defines nonrecurring lump-sum income as a “windfall.”

In its discussion of the proposed regulation, DHHS defines a windfall as a sum that is not earned, does not occur on a regular basis, and does not represent any accumulation of monthly income received in a single sum. Examples of a windfall include inheritance, lottery winnings and income tax refund as a windfall. Proposed regulation 45 C.F.R. § 233.20(a)(3)(iv)(E) requires that most tax refunds be treated as resources.

DHHS’s discussion relies on the agency’s interpretation of the legislative history of OBRA. Reference is made to the Senate Finance Committee Report which I discussed earlier. See supra at p. 1455. The agency interprets this report to mean that windfall payments should be considered lump-sum income.

This interpretation supports my previous conclusion that the definition of lump-sum payment does not include personal injury awards. Personal injury awards are not income. Redefining income to include “windfalls” does not change this. The plain meaning of “windfall” is “an unexpected or sudden gain or advantage.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2619 (1976). Personal injury awards do not represent a gain in wealth.

VI. EQUAL PROTECTION CLAIM.

The equal protection clause of the fourteenth amendment requires that any classification resulting in different treatment between two similarly situated groups must be rationally related to a legitimate state interest. U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973).

OAR 461-04-105(3) and (3)(b) require any amount received from the settlement of a personal injury claim to be treated as income. However, under OAR 461-04-260 property damage awards spent to replace property are not treated as income.

If there is a difference in treatment and it involves denial of all aid rather than allocation of amounts of aid, courts will more closely examine the rationality of the underlying classifications. Ranschburg v. Toan, 540 F.Supp. 745, 748 (W.D.Mo.), aff'd, 709 F.2d 1207, 1209 (8th Cir.1982). If the relationship between the classification and the attainment of a legitimate governmental interest is found to bé irrational, the challenged classification must fail. Id.

The purposes of the statutes under which the lump-sum rule was enacted are to help reduce federal spending (OBRA) and to help parents attain or retain capability for maximum self-support (AFDC). These are legitimate state interests. However, I find that defining personal injury awards as income and property awards as resources is not rationally related to the purposes of the statutes. As I stated above, both personal injury awards and property awards are given as reimbursement for loss. There can be no rational basis for defining one as income and the other as resources.

Under the Oregon defendants’ policy, whenever the cost of replacing property is less than the settlement, the remaining settlement money may be accumulated up to the allowable resource limit. However, even if these reimbursement expenses were treated as resources, any money received as a personal injury settlement which is not needed to make a person whole or is not used for personal injury expenses is treated as income. See Treatment of Lump-Sum Income, OAR 461-04-512 (10)(b). These distinctions have no rational basis. I find that the defendants’ policy of treating personal injury awards and property damage awards differently is irrational and violates the equal protection clause.

VII. EQUITABLE TREATMENT REGULATION.

Section 233.10(a)(1) of 45 C.F.R. states, in part, that a state must not exclude individuals or groups on an arbitrary or unreasonable basis and must not treat individuals inequitably. Because I have found the regulation in question, OAR 461-04-105(3) and (3)(b), violates federal statutory law and the equal protection clause by treating persons similarly situated differently with no rational basis, I find that it also violates 45 C.F.R. § 23310(a)(1).

CONCLUSION

In conclusion, I find that Oregon defendants’ regulation OAR 461-04-105(3) and (3)(b) violates the SSA by including personal injury awards in the definition of income. I further find that defendants’ policy of defining personal injury awards as income and property damage awards as resources violates the equal protection clause of the fourteenth amendment to the United States Constitution and 45 C.F.R. § 233.10(a)(1). Plaintiffs’ motion for a permanent injunction and declaratory relief is granted.

      . I note that one of the harsh effects of the present rule is that when recipients are denied ADC benefits, they not only lose the benefits, but medical coverage as well.