OPINION

PETTINE, Chief Judge.

The plaintiffs, in these consolidated actions, on behalf of themselves, and others similarly situated, filed suit challenging those sections of the Rhode Island Unemployment Insurance Act and Temporary Disability Insurance Act, (hereinafter "TDI") and the administrative procedures thereunder which routinely provided for children's dependency benefits to unemployed males while requiring females to prove dependency to the satisfaction of the Director. During the pendency of this litigation, the statutes in question were amended by the legislature to remove the challenged clauses and the case was remanded to a single judge for determination with regard to declaratory judgment and entitlement to retroactive payments.

On July 13, 1973, this Court ruled that the prior statute and procedures of the defendant had been unconstitutional, stating that "[t]he clause `provided, however, where the individual making the claim is a woman, the dependency status of such children shall be established to the satisfaction of the director' contained in both R.I.G.L. § 28-44-6(C) and § 28-41-5(C) violates the equal protection clause of the Fourteenth Amendment to the United States Constitution." 361 F. Supp. 854, 862 (D.R.I. 1973). The question of back payments was reserved pending the outcome of Edelman v. Jordan, 41 U.S.L.W. 3602 (U.S. 1973).

On March 25, 1974, the Supreme Court held that an award of retroactive benefits to recipients of the Illinois Aid to the Aged, Blind and Disabled (AABD) program was barred under the Eleventh Amendment to the United States Constitution. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In light of that decision, this Court requested parties for both sides to submit briefs on the question of whether retroactive payments in this case were barred under the principle of Edelman v. Jordan.

The two broad issues now before the Court with regard to retroactive payments are:

1) does the Eleventh Amendment bar such an award as against the State, and;

2) even if the Eleventh Amendment does not bar such an award, are retroactive payments justified in this case on a "balancing of the equities". See Rothstein v. Wyman, 467 F.2d 226, 234 (2d Cir. 1972); Jordan v. Weaver, 472 F.2d 985, 993 n. 14 (7th Cir. 1973), rev'd on other grds. sub. nom., Edelman v. Jordan, supra.

ELEVENTH AMENDMENT

In Edelman, the district court found that Illinois had administered its AABD program in a manner inconsistent with federal law, awarded prospective injunctive relief and, in addition, ordered State officials to "release and remit AABD benefits wrongfully withheld to all applicants for AABD in the State of Illinois who applied between July 1, 1968 [the date of the federal regulations] and April 16, 197[1] [the date of the preliminary injunction issued by the District Court] and were found eligible. . . ." The Court of Appeals for the Seventh Circuit affirmed. See 472 F.2d 985. The Supreme Court, however, reversed the award as it pertained to retroactive payments on the ground that such benefits were barred by the Eleventh Amendment. Mr. Justice Rehnquist, writing for the majority, traced the history of the Eleventh Amendment, and recognized that a rule has evolved.

". . . that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." 415 U.S. at 663, 94 S.Ct. at 1356.

The Court refused to categorize the back payments in question as mere "equitable restitution", as opposed to damages, and thus did not accept respondent's argument that such payments fall within the exception to the Eleventh Amendment bar on federal suits against a state as was created in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Young exception was narrowed to questions of prospective injunctive relief, and the Court found that,

"The funds to satisfy the award in this case must inevitably come from the general revenues of the State of Illinois, and thus the award resembles far more closely the monetary award against the State itself, Ford Motor Co. v. Department of Treasury, supra, than it does the prospective injunctive relief award in Ex parte Young." 415 U.S. at 665, 94 S.Ct. at 1357.

The plaintiffs argue, however, that the Edelman decision is not controlling in the instant case, in that the unemployment insurance and T.D.I. programs do not involve general statute revenues, but merely contributions from employers and employees and earnings made from investment of such contributions, for which funds the state is custodian, R.I.G.L. §§ 28-42-18, 28-39-4, 28-39-7; that the programs are independently administered by State officials in a trustee capacity, and that withdrawals are to be made solely to pay benefits and costs of administration, R.I.G.L. §§ 28-39-5, 28-39-6 and 28-42-19, 28-42-20; that the State itself has insulated itself from financial liability for benefit payments pursuant to R.I.G.L. §§ 28-39-4, 28-39-7 and 28-42-18 see note 5 supra; and that the State has no legal obligation to supplement the funds if they become depleted, R.I.G.L. §§ 28-39-11, 28-42-33. In addition, with respect to the unemployment insurance program, plaintiffs cite R.I.G.L. § 28-42-71 which provides that upon termination of the program, the monies in the fund shall be refunded ratably, without interest, to the individual employer and employee contributors, without such monies reverting to the State for its general purposes. Thus, according to plaintiffs, any judgment awarding retroactive benefits will be paid out of the two special funds in question without further action by the state legislature, thus shielding the general revenues of the state from liability. Since these two funds are comprised wholly of the contributions of participants paid directly to the fund, (and money earned thereon) without any intermediate legislative appropriation and the state having statutorily insulated from any liabilities incurred by these programs, it is argued that Edelman is readily distinguishable. Plaintiffs rely primarily on case law dealing with the "alter ego" theory under the Eleventh Amendment, apparently resting on the reasoning that these funds are self-sustaining and financially independent of the state and, therefore, are not entitled to the sovereign immunity enjoyed by the State itself.

Defendant, on the other hand, argues that the Department of Employment Security, charged with the administration of both programs, is a duly constituted component of state government, R.I.G.L. § 42-19-1; that the General Treasurer of the State is charged with statutory responsibility as custodian of the funds, R.I.G.L. §§ 28-42-20, 28-39-6; and that the General Treasurer must give a bond conditioned on the faithful performance of his duties as custodian of the funds, which bond is paid from funds made available by the General Assembly, R.I.G.L. §§ 28-42-27, 28-39-9. Although not entirely clear from the briefs submitted, it appeared from the testimony at the hearing that the costs of administration for the unemployment insurance program are financed by the federal government, whereas the costs of administration of the T.D.I. program are from the fund itself. Defendant's argument is best illustrated by a statement from her brief:

". . . a state legislature in the exercise of its constitutional prerogatives and as the legislative body of a sovereign state has every authority to establish public funds whether they are derived from taxation, from other revenues, from penalties or fines, or from any other source. The fact that in certain instances it believes that the best method of obtaining the goals which it has set for any of its programs or projects is the establishment of special funds which are to be utilized precisely for the purposes set by the Legislature, does not constitute them as other than public monies." Defendant's Memorandum at 14.

Defendant does not dispute the fact that under Rhode Island law all revenue held by the State is either credited to the "general fund" or to one of the "special funds" enumerated in R.I.G.L. § 35-4-1, and that the funds in question here are clearly monies in a special fund. See also R.I.G.L. §§ 35-4-2, 35-3-14. In fact, defendant concedes that the funds in question are independent and not available for general revenue purposes. (Defendant's Memorandum at 28). However, defendant argues:

". . . it is apparent that while the `general fund' is utilized for general expenses of the state, it by no means constitutes a narrow limited `state treasury' to the exclusion of all special funds created by law and subject to the custody and supervision, in accordance with specific provisions, of the General Treasurer, who is a constitutional officer." Defendant's memorandum at 18.

Defendant supports her argument that these funds constitute the general revenue and public funds of the state, and thus are immune from federal judgment, by citing the Court to Dowe v. Egan, 133 Conn. 112, 48 A.2d 735 (1946), and New Jersey Sports and Exposition Authority v. McCrane, 61 N.J. 1, 292 A.2d 545 (1972). In Dowe, the legal status of Connecticut's unemployment compensation fund was considered, and found to constitute "public money" as those words are used in the state constitution with regard to the question of authority for disbursement and custody of the funds in that state. In McCrane, the New Jersey Supreme Court found that the legislative creation of a financially self-sustaining sports authority did not contravene various provisions of the state constitution, and was thus a properly constituted government instrumentality.

While neither Dowe or McCrane dealt with questions of sovereign immunity under the Eleventh Amendment, defendant asserts that these cases support the contention that special funds do not lose their character as public monies for Eleventh Amendment purposes merely because they are designated to be used for a specific governmental purpose.

Thus, it is defendant's position that:

1. The Employment Security Fund and the Temporary Disability Insurance Fund are public funds and constitute a part of the state treasury of Rhode Island;

2. The State of Rhode Island has not waived its sovereignty in the matters at issue;

3. The decision of the United States Supreme Court in Edelman is completely applicable hereto, and;

4. The cases should, therefore, be dismissed in relation to any award of retroactive benefits.

While for various purposes, and in different contexts, the funds in question might be considered "public monies", see Dowe v. Egan, supra, this Court must look only to the narrower inquiry as to whether a judgment having a direct impact on these funds constitutes a suit against the state, i.e., to be paid "from public funds in the state treasury", in the context of the Eleventh Amendment. This narrower question is one of federal law and, while state law may be of some guidance on this issue, it is not determinative. See Ford Motor Co. v. Department of Treasury of State of Indiana, supra; Pennsylvania Turnpike Commission v. Welsh, 188 F.2d 447 (3rd Cir. 1951); S.J. Groves Sons Co. v. N.J. Turnpike Authority, 268 F. Supp. 568, 571 (D.N.J. 1967); Zeidner v. Wulforst, 197 F. Supp. 23 (E.D.N.Y. 1961). The mere fact that a particular agency or instrumentality was created by the state legislature and performs certain governmental functions is not dispositive of this issue. See Gordenstein v. University of Delaware, 381 F. Supp. 718, 723 (D.Del. 1974); Raymond International, Inc. v. M/T Dalzelleagle, 336 F. Supp. 679, 682 (S.D.N.Y. 1971); Lowes v. Pennsylvania Turnpike Commission, 125 F. Supp. 681 (M.D.Pa. 1954).

There has developed a clear line of judicial authority which has held that if the legislature has intentionally insulated the treasury of the state from any liabilities that a particular financially self-sustaining instrumentality might incur, that instrumentality does not constitute the "alter ego" of the State, and suit against such a body or its officers is not barred by the Eleventh Amendment. See Matherson v. Long Island State Park Commission, 442 F.2d 566 (2d Cir. 1971); Urbano v. Board of Managers of New Jersey State Prison; 415 F.2d 247 (3rd Cir. 1969), cert. denied, 397 U.S. 948, 90 S.Ct. 967, 25 L.Ed.2d 128 (1970); Harrison Construction Co. v. Ohio Turnpike Commission, 272 F.2d 337 (6th Cir. 1959); Gordenstein v. University of Delaware, supra; Raymond International, Inc. v. M/T Dalzelleagle, supra; S.J. Groves Sons Co. v. New Jersey Turnpike Authority, supra; Zeidner v. Wulforst, supra; Lowes v. Pennsylvania Turnpike Commission, supra. By analogy, these cases are persuasive authority that the funds in question herein are not "public funds in the state treasury" for Eleventh Amendment purposes. These funds, as they pertain to moneys available for dependents benefits under both programs, are not the product of legislative appropriation but represent revenues collected from a limited class of persons through an administrative process, and segregated from the general revenues of the state. The legislature having specifically protected the State's general revenues from liability, R.I.G.L. §§ 28-39-4, 28-39-7 and 28-42-18, see note 5 supra, the faith and credit of the State of Rhode Island have not been pledged in relation to benefit payments under either program. See Lowes v. Pennsylvania Turnpike Commission, supra; S.J. Groves Sons Co. v. New Jersey Turnpike Authority, supra. Certainly, the legislature has put in motion an administrative apparatus to collect employer and employee contributions and to invest such monies to sustain the operation of these programs, as well as having provided statutory guidelines for the payment of such benefits. Yet this alone is not determinative of the Eleventh Amendment question. The fact that the General Assembly may feel morally obligated to replenish the funds in time of emergency is of no consequence. Such a possible ancillary effect on the state's general treasury is simply too attenuated to bring the Eleventh Amendment into play. Gordenstein v. University of Delaware, supra, 381 F. Supp. at 721. See Note, The Applicability of Sovereign Immunity to Independent Public Authorities, 74 Harv.L.Rev. 714, 722 (1961). Under R.I.G.L. §§ 28-39-11 and 28-42-33, see note 6 supra, there is no legal duty to pledge the general revenue of the state for the operation of these programs. The absence of such a legal duty is apparent from R.I.G.L. §§ 28-39-4, 28-39-7 and 28-42-18. See note 5 supra.

Furthermore, the fact that the General Treasurer is custodian of these funds, R.I.G.L. §§ 28-42-20, 28-39-6 does not require a finding that they are "public funds in the state treasury", when the state itself has washed its hands of financial responsibility for benefits to be paid under the programs.

Several of the aforementioned cases have enumerated a variety of factors to be considered by a Court in determining if a particular agency or instrumentality is the "alter ego" of the state for Eleventh Amendment purposes. While no one of these factors is conclusive, the most important is whether payment of a judgment will have to be made out of the state treasury, i.e., whether the fund in question has both the independent power and resources to pay the judgment without further action by the state legislature or other governmental officer or entity. Gordenstein v. University of Delaware, supra; Krisel v. Duran, supra. These cases have also found significant the fact that a state legislature has "carefully immunized the treasury of the State from any obligations whatever" arising out of a particular program. Harrison Construction Co. v. Ohio Turnpike Commission, supra, 272 F.2d at 339; S.J. Groves Sons Co. v. New Jersey Turnpike Authority, supra. In Raymond International Inc. v. M/T Dalzelleagle, supra, the Court noted in relation to New York's Triborough Bridge and Tunnel Authority:

"Whether Triborough is entirely separate and distinct from the state for every purpose need not be determined. What is crucial is whether the relief sought is, in effect, relief against the state." 336 F. Supp. at 681.

I find that both the unemployment insurance and T.D.I. funds carry with them these indicia of independence from the sovereign, and thus it cannot be claimed by the defendant that she is entitled to share in the state's Eleventh Amendment immunities in relation to the relief requested herein by plaintiffs.

While defendant is correct in her contention that the mere separation of a special fund from the general treasury does not necessarily negate the Eleventh Amendment bar, the more important issue is not separateness alone, but that the State has gone further and immunized its general revenues from financial liability.

The funds in question are not a product of general taxation, but are created from revenues collected from a particular group, namely employees and employers, for whom the benefits of these programs accrue. While this fact alone is not of crucial significance, it has been noted that the immunity doctrine is least justified in those situations in which the burden of liability falls less upon the general taxpayer and more upon the users of a particular program or facility.

Regarding the cost of administering these programs, it appears at the present time that as to the unemployment insurance program, costs of administration are borne entirely by the federal government, whereas for the T.D.I. program, administrative costs are from the fund itself. See note 8 supra. This fact further accentuates the lack of direct financial involvement by the State in these programs, and lends added weight to the analogy that these programs do not constitute the "alter ego" of the State for Eleventh Amendment purposes.

Based on the foregoing analysis, I find that the Eleventh Amendment does not constitute a bar to the type of relief requested by plaintiffs herein, to wit, payment of retroactive benefits for dependents allowances under the unemployment insurance and T.D.I. programs.

Balance of the Equities

Notwithstanding the finding that the Eleventh Amendment does not bar the relief requested herein, this Court must consider whether such retroactive payments are justified in equity. See note 1 supra. In particular, this Court is interested in weighing with some degree of precision the costs of administering retroactive benefits to the plaintiff class with the amount of benefits to be conferred, and in considering the precise impact of such an award on the ability of the Department of Employment Security and the funds in question to meet the ongoing demands of those presently in need.

Judge McGowan indicated the impact of such equitable considerations in relation to an award of retroactive benefits as a form of relief in welfare litigation:

". . . we cannot be sure that the persons from whom funds were withheld in 1969 have a present compelling need for them, or that it is provident, given existing deprivations which might be relieved, to order the expenditure of scarce funds as compensation for past suffering which, however deplorable, cannot be undone.

. . .

As time goes by, retroactive payments become compensatory rather than remedial; the coincidence between previously ascertained and existing needs becomes less clear." Rothstein v. Wyman, supra, 467 F.2d at 234-235.

On the other hand, this Court cannot ignore the basic unfairness that is engendered if a state may follow an unconstitutional procedure over a number of years, thus illegally withholding payments to some persons otherwise eligible, and do so with impunity until ordered by a court to discontinue its unconstitutional actions. Some administrative inconvenience is inevitable in such relief, and this Court must examine closely the true extent of such burden before it could rule in defendant's favor. The mere conclusory statement by defendant that the administrative burdens of paying retroactive benefits far outweigh the value of such benefits to the plaintiff class, or that the disruption that would be occasioned by such a judgment would hinder the Department's ability to meet its obligations to currently eligible recipients, cannot serve as a substitute to evidentiary facts which would help the court make the requisite equitable findings. While the Court is mindful of the difficulty involved in the defendant compiling such hard data relative to administrative burdens, the Court must have this information before it can rule intelligently on this issue. Since the data necessary to support defendant's position must be found in statistical materials which are solely within defendant's control, the burden must of necessity fall on defendant to document its position with hard data, rather than through conclusory statements supported by mere speculation. While a complete and accurate account of total benefits to be paid and total administrative cost of such payments would undoubtedly necessitate notice to the class and scanning the records of every possible retroactive claimant, the Court is of the opinion that short of this, relatively reliable approximations can be presented to the Court based on testimony of statisticians and other expert witnesses, which testimony could then be subject to cross-examination or rebuttal by plaintiffs. At this juncture, the Court simply does not have before it the data upon which it can objectively weigh the equities. In the absence of a final ruling with regard to retroactive benefits, I am of the opinion that it would be improper and premature for the Court to order notification to all class members, either individually or by publication. A proper notification procedure can be worked out if and when this Court determines whether such benefits should be awarded.

Therefore, defendant will be given a period of 60 days to compile more precise statistical evidence to support her position that, based on the equities herein, an order of retroactive benefits should be denied, even absent any Eleventh Amendment bar. Order to be entered in accordance with this opinion.