In Interest of McMullen

Because I agree that "[i]n determining the necessity for release of a minor's settlement, the supervising court must decide without regard to the availability of welfare benefits because social policy dedicates welfare benefits to the truly needy," I am not convinced that a declaratory judgment is an appropriate procedure in which to determine the release of the settlement funds. The only issue before the supervising court should be the needs of the minor and the availability of assets, including parental support but excluding the settlement funds, to meet those needs. Dahner v. Daner, 374 N.W.2d 604 (N.D. 1985).

Once the Department of Human Services is made a party to the action seeking release of the funds, it is difficult for the court supervising the settlement trust to ignore the possibility that the court could effect the use of welfare benefits before using settlement funds, notwithstanding such a possibility should not be considered by the court.

My concerns are with the construction of the justiciable-issue requirement and the adverse-party requirement of the declaratory judgment act in view of the limited issue to be decided by the supervising court. See West Fargo Pub. Sch. Dist. v. West FargoEd., 259 N.W.2d 612 (N.D. 1977) [declaratory judgment action must involve justiciable controversy between parties having adverse interests]. I do not favor a "crabbed" construction of the declaratory judgment act, but neither do I believe we should adopt a construction which encourages procedures which lead to a confusion of the issues to be determined by the court. Joshua's initial request for release of the settlement funds should not involve the Department and his mother's claim for AFDC benefits cannot, under the separation of powers doctrine, Power Fuels,Inc. v. Elkin, 283 N.W.2d 214 (N.D. 1979), be determined in a declaratory judgment proceeding. Transp. D. of Fargo Ch. of Com.v. Sandstrom, 337 N.W.2d 160 (N.D. 1983). In this respect it appears to me that a petition to the supervising court requesting release of the settlement funds would have placed the issue before the court in the *Page 203 proper context with the proper parties and the court would not have attempted to answer a question not properly before it.

Although "[w]e do not favor or encourage bifurcated self-induced or self-initiated procedures, one in the administrative process and one in the judicial process covering the same legal questions," Shark Bros., Inc. v. Cass County,256 N.W.2d 701 (N.D. 1977), here the procedure requesting release of the settlement funds was required by the Department and the legal question to be decided in the request for release of the funds before the supervising court was different than the issue of eligibility for AFDC payments pending before the Department. The issue of eligibility for AFDC benefits may ultimately be subject to a limited review in court on an appeal from a determination by the Department, but there is no procedure to abridge that procedure. Furthermore, the requirement that the guardian apply for release of the settlement funds was not self-induced; it was a requirement of the Department.

Nevertheless, I concur in the result reached by the majority opinion. In the first instance, the procedures suggested by the Department of Human Services were perhaps not as precise as they could have been, although they did require a "petition [to] the Court to see if the funds are available [to] Joshua." Furthermore, this matter has proceeded too far to now require the parties to begin anew. The declaratory judgment vehicle becomes less material in view of the limited issue the majority has directed the trial court to determine on remand.1 It would be pointless to require Marie and Deborah to proceed with a new petition to have determined that limited issue.

1 It may be asking too much that Marie and Deborah, given their position (others in their position might prefer the release of settlement funds to accepting AFDC benefits for the minor), could be expected to present a sincere petition of Joshua's needs versus their ability to provide for those needs, without regard to the availability of AFDC benefits. In this respect the Department may be in a better position as a party to the proceeding before the court, for the issue of needs will now be heard in the customary adversarial setting to which the courts are accustomed and the possibility that the court will not be made acutely aware of all the facts should be reduced.