This petition for a writ of mandamus, filed by members
of the state legislature and state
residents and taxpayers who receive public assistance, challenges the
Governor's attempt to
implement a new welfare system through administrative regulations which
are not authorized by state legislation but which instead conflict with
existing law. In response to the enactment of the federal PRA of 1996,
the state legislature passed legislation to change the state's welfare
system. The Governor vetoed the legislation and funding appropriated
for the changes. He and the Secretary of the Human Services Department
then proceeded to implement a new welfare plan through state regulations,
although provisions of the new plan conflict with existing state welfare
law.
Plaintiffs claim that the Governor and Secretary,
in exercising legislative powers, have
violated separation of powers provisions of the New Mexico State Constitution,
and, in adopting a plan through administrative regulations, have violated
state welfare statutes and the constitutional duty to faithfully execute
the law. Plaintiffs seek a writ directing the Governor and Secretary to
halt implementation of the plan, to administer welfare programs in compliance
with state statutes, and to restore benefits to any recipients harmed by
the defendants' actions. Plaintiffs' counsel reports that a hearing is
set for September 10th.
Plaintiffs' attorneys: Robert C. Ericson, New Mexico Center on Law and
Poverty, 121 Tijeras, NE, Suite 3001, Albuquerque, NM 87102, tel. (505)
243-6282, and other attorneys.
This class action challenges the denial or loss of
SSI and Food Stamps to legal permanent residents required by § 402
of the Personal Responsibility and Work Opportunity connciliation Act of
1996, P.L. 104-193. It was brought on behalf of legal permanent residents
in New York, Connecticut, and Vermont who 1) are disabled, blind, or elderly
SSI and related Food Stamps applicants or recipients; 2) were residing
in the United States on Aug. 22, 1997; 3) were either receiving SSI on
August 22, 1996 or are current or future SSI applicants and 4) who are
disqualified by the federal statute. Plaintiffs claim that the federal
statute invidiously discriminates on the basis of alienage in violation
of the equal protection guarantee of the Due Process Clause of the Fifth
Amendment of the U.S. Constitution. The plaintiffs also challenge as a
violation of Title XVI of the Social Security Act and due process the failure
to pay retroactive SSI for the period before August 22, 1996 to class members
who applied for SSI before that date and who but for their immigrant status
would otherwise be eligible for such benefits. A companion case, brought
by The City of New York, asserts similar claims and includes a federal
APA claim with respect to the denial of retroactive benefits.
The court has rejected plaintiffs' claims that the
federal statute is unconstitutional. It
applied the rational basis test of Mathews v. Diaz, 426 U.S. 67 (1976),
in light of Congress'
plenary power over immigration matters, rejecting plaintiffs' arguments
that strict or intermediate scrutiny should apply. In applying the rational
basis test, the Court evaluated the differential treatment of those aliens
excluded from SSI and those aliens who are eligible against four purposes:
1) giving non-citizens an incentive to naturalize; 2) encouraging them
to be self-sufficient; 3) controlling rising SSI costs; and 4) reducing
the incentive for immigration created by the conclusion that the first
three purposes availability of benefits. In light of its provide a rational
basis for the classification, the Court did not reach the question of whether
the fourth purpose was sufficient basis for the statute as applied to aliens
already in the country. With respect to the retroactivity claim, the court
ruled that it had jurisdiction over the claim of the City under the APA,
that there was a substantial likelihood of success of prevailing on the
merits , and that the other requirements for preliminary relief for the
affected class members were met. The court also certified the class with
the modification that it does not include those who have not applied for
benefits.
Plaintiffs' attorneys: (Individual plaintiffs) Constance Carden et al.,
New York Legal Assistance Group, 130 E. 59th St., New York, NY 10022, tel.
(212) 750-0800; and attorneys from the Center for Constitutional Rights,
the Center for Disability Advocacy Rights, and the Legal Aid Society; (City
of New York) Gail Rubin et. al. Corporation Counsel, tel. (212) : 788-0995.
In a decision that follows Hesthag v. Hammons. Index No. 403426/96 (N.Y. Sup. Ct. Nov. 14, 1996)(reported in the January 1997 Welfare Bulletin), a second trial court judge has ruled that the New York Social Services Law prohibits workfare assignments that interfere with a welfare recipient's pursuit of an education. The Court also held that a welfare recipient cannot be sanctioned for failure to cooperate with workfare when no assignment was actually given to her. In this case, the agency took the request for accommodation of the recipient's school schedule as non-cooperation although it never actually gave her an assignment.
Petitioner's attorney: Bill Jaffe, The Legal Aid Society, Brooklyn Office,
166 Montague Street, Brooklyn, NY 11201; 718-722-3100, ext. 2509.
Petitioner appealed her removal from the TANF unit as a sanction for refusing to articipate in a "Life Skills Workshop." She refused to participate because she is the only care provider for her daughter who is wheelchair bound, suffers from spinal muscular atrophy, and requires constant special care, including a GI tube for feeding. The sanction was applied after an unsuccessful conciliation. The state's TANF policy allows hardship waivers in specified cases, including physical disability. The ALJ granted an exemption for six months, since the exemption period counts for time limits purposes. He ruled that if, at the end of the period, the petitioner has not found a job of at least 25 hours a week, she must participate in the workshop and that during the exemption period nothing in his decision "shall prevent petitioner from obtaining job assistance from DFCS..., such as arranging special needs day care, assistance in obtaining self-employment, etc." The ALJ noted that in the event of new sanctions, there would be new appeal rights.
Petitioner's representative: William Power, Legal Assistant, Atlanta
Legal Aid, 340 W. Ponce de Leon Ave., Decatur, GA 30030-2349, tel. (404)
377-0705.
The court has approved a settlement in this case challenging a county
policy of treating all disabled General Relief recipients not SSI eligible
as "employable with limitations" and
terminating them after 3 months, despite medical evidence of their
inability to work. State law authorizes a time limit of 3 months in any
year for employables. Plaintiffs challenged the county policy as
contrary to the Americans With Disabilities Act, federal and state constitutional
equal protection and due process guarantees, and state law. After
the June 5th denial of a temporary restraining order, the parties settled
the case. The settlement provides that the time limit will not apply to
those with medical verification of inability to work; that such individuals
will not be required to comply with employment related requirements, including
job search, during the period covered by the medical verification; that
in most cases the county will not reverify medical status during the period
covered by the medical verification; that months in which an individual
is disabled shall not count toward the time limit; that the county will
notify class members; and that the county will pay retroactive benefits
to some class members. Plaintiffs' attorney reports that the county has
implemented the changes, including notifying the class of reinstatement
rights.
Plaintiffs' attorneys: Clare Pastore, Dick Rothschild, Western Center
on Law and Poverty, 3701 Wilshire Blvd., Suite 208, Los Angeles, CA 90010,
te. (213) 487-7211; Jordan Budd, Joni Halpern, ACLU Foundation of San Diego
& Imperial Counties, tel. (619) 232-2121; Rosemary Bishop, San Diego
Friends of Legal Aid, tel. (619) 233-8441.
Plaintiffs challenge a state law which pays families who are new residents
of Pennsylvania the public assistance benefits available in their former
states for their first year in Pennsylvania. The Court denied plaintiffs'
application for a temporary restraining order. A
hearing on plaintiffs' motion for a preliminary injunction was held
in July. Plaintiffs are represented by Richard Weishaupt and Jonathan
Stein of Community Legal Services, (215) 981-3700; Susan Frietsche and
Elizabeth Shapiro of the Women's Law Project, (215) 928-9801; Selena
Fitanides of the ACLU, (215)592-1513; and pro bono attorneys.
A settlement has been reached in this federal class
action on behalf of children under five whose non-parent caretakers are
not their legal guardians. Before the suit, state policy had
denied such children the right to apply for WIC benefits. In the settlement
the defendant agrees that for so long as federal law allows, it will not
change its current policy, implemented while the suit was in progress,
of allowing such children to apply for WIC benefits. The settlement also
details measures the state agency must take to publicize the policy change.
In a Dec. 30, 1996 order vacating the grant of defendant's
motion to dismiss, the court
clarified its interpretation of the impact of Seminole Tribe v. Florida,
116 S. Ct. 114 (1996), on the scope of the 11th Amendment ban on federal
authorization of suits by private parties against unconsenting states.
The court noted that the ban does not apply where the defendant is not
a state but a state official, and held that suits challenging the legality
of a state official's actions under federal statute are not considered
suits against the state even when the state's treasury or public administration
is implicated. The court further noted that while under Seminole Tribe
the suit would be banned if the relevant statute provided a non-judicial
remedial scheme, WIC has no such scheme applicable to individuals in Scates'
position.
Plaintiffs' attorney: George Bell, U. of Illinois at Urbana-Champaign, College of Law Clinic, 504 E. Pennsylvania Ave., Champaign, IL 61820, tel. (217) 244-9494; fax (217) 333-5775.