Davila v. Turner, Index No. 407163/96 (Sup. Ct., N.Y. County, Apr. 9, 1999).
Plaintiffs, single parents receiving public assistance, challenge the New York City welfare commissioner's practice of assigning them to workfare positions without following state law requirements providing for an individualized assessment and an employability plan that reflects the individual's preferences to the extent possible. The case also asserts claims against the state welfare officials for failure to supervise the city agency. The defendants' practices mean that plaintiffs are forced out of school or unable to enroll in appropriate education programs. In earlier orders the court had certified a class and granted preliminary relief. The court has now ruled for the plaintiffs on their motion to enforce an earlier order and amend the class and on defendant's motion to de-certify the class and dismiss the amended complaint which was filed after the statute at issue was amended. Finding that the plaintiffs have satisfied the standards for preliminary relief, the court granted an injunction requiring the New York City welfare commissioner to do individualized assessments and develop an employability plan for TANF participants that reflects, to the extent possible, the preferences of the participant and if preferences are not honored, explains why not. The city defendant must stop automatically assigning participants to work experience or job search, refusing to approve education and training for those not already in such a program, refusing to help participants identify appropriate education and training programs, and refusing to approve education and training for those who had previously attended a training program. The court declined to order the defendant to approve training-related expenses at this time. It ordered the state defendants to use their supervisory authority to assure that the city defendant complies with the law. The court also denied defendants' motion to decertify a class. It found that the prior granting of class certification constituted a rejection of defendants' arguments that class certification was unnecessary and inappropriate based on the governmental operations rule and the failure to exhaust administrative remedies and that the prior decision is the law of the case. Even if the law of the case were inapplicable, the class should not be decertified. The court ordered the class definition modified, as proposed by the plaintiffs.
Plaintiffs' attorneys: Marc Cohan, Welfare Law Center; Christopher Lamb, The Legal Aid Society, 60 Bay Street, Staten Island, NY 10301-2514; tel. 718-273-6677; email: clamb@legal-aid.org; Richard Blum, Legal Aid Society, 953 Southern Boulevard, Bronx, NY 10459-3428, tel. 718-991-4758, ext. 242, email: blum@legal-aid.org; and Davis Polk & Wardwell, NYC.
Mitchell v. Barrios-Paoli (N.Y. Sup. Ct., App. Div. 1st Dept., Mar. 23, 1999).
This class action was brought by public assistance recipients who challenged New York City's practices of assigning individuals who are found to be "employable with limitations" to workfare positions that are inconsistent with their disabilities. Plaintiffs asserted claims under state law, the Americans with Disabilities Act and due process. The lower court had certified a class and granted preliminary relief barring assignments to workfare until adequate procedures (including notices) were in place and barring sanctions for class members for failure to meet workfare requirements because of their limitations. The appellate court has found that the plaintiffs raise serious questions about the fairness of workfare implementation and are likely to prevail on the merits of their claims that the notices are inadequate and violate due process. However, it concluded that class certification was inappropriate, finding that plaintiffs had not shown that there is a similarly situated class of individuals so numerous that a class action is needed, that they had not shown that common questions predominate as to several of the claims, and that the governmental operations rule makes a class unnecessary. The court did acknowledge that the individual plaintiffs had raised serious claims regarding their assignments that may well entitle them to individual relief in Article 78 proceedings. As to the notice claims the court required that notices include a concise statement of how an individual can challenge specific assignments through the fair hearing process and receive continued benefits. It modified the lower court's order on the grounds that the notice relief granted was too extensive. It also affirmed the lower court's order suspending the individual's workfare obligations pending resolution of their claims.
Plaintiffs' attorneys: Elisabeth Benjamin, et. al., The Legal Aid Society of New York, Lower Manhattan Neighborhood Office, 90 Church Street, 15th Floor, New York, NY 10007; tel. 212-577-3386; email: EBenjamin@legal-aid.org.
Bowling v. Davis, Civil Action No. IP 98-497-C H/G (S.D. Ind., Mar. 19, 1999) (Stipulation to Enter Consent Decree Following Notice to the Class).
Plaintiffs in this class action on behalf of TANF recipients required to engage in work, training, and education claimed that the state violates due process by failing to provide adequate notice of possible exemptions to the work, training and education requirement. A month in which a person is exempt does not count for purposes of the state's 24-month time limit. The parties have agreed to a settlement following notice to the class. Under the settlement the state will provide written notice of exemptions to TANF applicants and recipients at application and re-determinations. Information will also be sent on the sixty-day notices sent to individuals whose 24 months is about to expire. The defendant will also post notices in welfare offices, offices of supportive services providers under contract to the welfare agency, and in newspapers. In addition, the defendant will provide administrative reviews of individual claims for an exemption for any time since March 13, 1998 and add a month to the individual's remaining TANF time for any month in which an exemption is granted. Those dissatisfied with the administrative review can seek an administrative hearing. The agreement requires the parties to attempt to resolve disputes over the defendant's compliance with the settlement before seeking court intervention.
Plaintiffs' attorney: Jacquelyn E. Bowie, Indiana Civil Liberties Union, 1031 East Washington Street, Indianapolis, IN 46202-3952, tel. 317 635-4059; fax 317 635-4105, email: iclu@aol.com.
Turner v. Glickman, No. IP 98-1084-C-Y/F (S.D. Ind., Mar. 18, 1999).
This class action challenges the constitutionality of 21 U.S.C. . 862a which permanently denies TANF and Food Stamps to a person convicted under state or federal law of a felony offense which has as an element the possession, use, or distribution of a controlled substance. The court has concluded that the statute does not violate the equal protection, due process, or double jeopardy clauses of the U.S. Constitution. As to equal protection, the statute survives under the lenient rational basis test, since the statute can be rationally related to Congress's interests in deterring drug use, reducing Food Stamp fraud and curbing welfare spending. The court concluded that since the statute does not deny equal protection, it also does not irrationally deny benefits in violation of due process. Finally, it held that the statute does not violate the Fifth Amendment's prohibition against successive criminal punishments for the same offense, finding that plaintiffs did not show that the statute on its face was adopted with punitive intent or that its purpose or effect was to transform a civil into a criminal penalty. Plaintiffs' counsel reports that they plan to appeal to the 7th Circuit.
Plaintiffs' attorney: Jacquelyn E. Bowie, Indiana Civil Liberties Union, 1031 East Washington Street, Indianapolis, IN 46202-3952, tel. 317 635-4059; fax 317 635-4105, email: iclu@aol.com.
Dixon v. Davis, Civil Action No. IP 98-1597 C-H/G (S.D. Ind. Mar. 5, 1999)(Stipulation to Enter Consent Decree Following Notice to Class and Stipulation to Certification of ...Class Action).
This class action case challenges the state's failure to assure that individuals convicted of felony drug offenses on or before August 22, 1996 are not denied Food Stamps pursuant to 21 U.S.C. . 862a which applies to conduct after August 22, 1996. The defendant's computer eligibility screening system does not distinguish between convictions before or after August 22, 1996. The parties have agreed to settle this case with court approval following notice to the class. The defendant has agreed to comply with the law, identify those improperly denied Food Stamps, re-determine their eligibility, provide appropriate benefits, including back benefits, modify its computer system to reflect the limit on the drug felony conviction exclusion, send administrative letters regarding the issue and the computer modification to local welfare offices. The agreement requires the parties to attempt to resolve disputes over compliance before seeking court intervention.
Plaintiffs' attorney: Jacquelyn E. Bowie, Indiana Civil Liberties Union, 1031 East Washington Street, Indianapolis, IN 46202-3952, tel. 317 635-4059; fax 317 635-4105, email: iclu@aol.com.
Katherine W. v. Borland et al., (Super. Ct., Sacramento Cty, March , 1999).
San Mateo County does not comply with California statutory requirements in administering its welfare program, applying much harsher sanction, work requirement, and other provisions. It claims it may do this under a waiver granted by the state. Plaintiffs seek class relief, claiming both that the waiver granted was far in excess of statutory authority for demonstration projects that do not limit eligibility, and that no waiver was granted to justify many of the County's harsh deviations from state law.
Plaintiffs' attorneys: Sarah E. Kurtz and R. Renee Glover, East Palo Alto Community Law Project, 1395 Bay Road, East Palo Alto, CA 94303, tel. 650-853-1600; Clare Pastore and Emma Leheny, Western Center on Law and Poverty, 3701 Wilshire Boulevard, Suite 208, Los Angeles, CA 90010, tel. 213-487-7211, ext. 25; David S. Steuer and Shirley C. Wang, Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Palo Alto, CA 94304-1050, tel. 650-493-9300, ext. 4934; Eugenie Mitchell, Northern California Lawyers for Civil Justice, 604 12th Street, Sacramento, CA 95814, tel. 916-554-3310; and Doris Ng, Equal Rights Advocates, 1663 Mission Street, Suite 550, San Francisco, CA 94103, tel. 415-621-0672.
Several recent administrative appeal decisions have reversed sanctions for failure to comply with work-related requirements where the agency had not determined good cause as required by county regulations.
In re J.S. (Ohio Dept. of Human Services, Jan. 21, 1999).
A state hearing decision has reversed a proposed TANF and Food Stamp sanction where the claimant missed his WEP assignment because he had not received notice of his assignment, day care had not been authorized for part of the time, and his children were ill some of the time in dispute. The claimant's testimony that he had timely notified the agency and provided medical documentation was credible, and the hearing officer concluded that claimant had met the standard for good cause.
In re. S.D. (Ohio Dept. of Human Services, May 20, 1998).
The client notified the agency during the assessment that she provided care for her elderly mother. She then failed to appear at a work assignment. Agency records indicated that a few days later the agency received a doctor's statement that the client was caring for her mother who had suffered a stroke and needed full-time care. Although county regulations require the agency to determine whether good cause for failure to comply exists, the county imposed a sanction. The hearing decision concluded that good cause was established.
In re I.H. (Ohio Dept. of Human Services, June 5, 1998).
A client who was assigned to a work experience program did not appear for the assignment and the worker requested sanctions. Although the agency did not impose sanctions, the client requested a hearing to challenge the assignment on the grounds that she was needed at home to care for her terminally ill mother. The hearing decision concluded that the client had good cause.
In re R.S. (Ohio Dept. of Human Services, June 29, 1998).
A client who was assigned to a work activity notified the agency at the time she signed the self-sufficiency contract that she would probably not be able to attend because of child care needs for her two special needs children, one of whom received SSI and had cerebral palsy and other medical impairments. The client informed the agency of her need to keep weekly therapy appointments for her children and her inability to locate child care. The administrative appeal decision notes that the hearing officer, in upholding the sanction, did not examine the good cause issue, and that the agency was aware of the client's child care need and the unavailability of care but did not assist in locating care. It found that the client had good cause, reversed the sanction, ordered a re-assessment, and exploration of child care for any future assignments.
Decisions provided by: Beth Kowalczyk, Ohio State Legal Services Assn., 861 North High Street, Columbus, OH 43215-.1496, tel. 614-299-2114, fax 614-299-6364, email: bethk@iwaynet.net.
In the matter of J. S., FH # 3017997L (New York State Dept. of Labor, Mar. 29, 1999).
The agency reduced cash assistance for claimant and his spouse (and reduced Food Stamps for the spouse) in acting on their re-application for benefits to reflect continuation of a prior sanction for failure to comply with work requirements, on the ground that the sanction continues until compliance. However, after the original sanction was imposed, claimant broke his ankle and his spouse was needed at home to care for him. The hearing decision concluded that the agency was required to make a new employability determination in light of the changed circumstances and restore benefits if they are found not employable.
The decision is part of the Greater Upstate Law Project (GULP) fair hearing bank and is available from GULP by calling Nancy Krupski or Connie Lewis at 1-800-635-0355. The GULP fair hearing database can also be accessed from the website of the Western New York Law Center: www.nylc.com. Click on "Welfare Law" and then on "GULP's Fair Hearings." You will need Adobe Acrobat to read the full text of the hearings.