Anderson v. Roe, No. 98-97 (U.S. Supreme Court, Jan. 13, 1999).
A very active and involved Supreme Court heard one hour of argument in the California durational residency case. The Court first heard 25 minutes of argument from Deputy California Attorney General Theodore Garelis, then 10 minutes from United States Solicitor General Seth Waxman, and then 25 minutes from Mark Rosenbaum of the ACLU Foundation of Southern California.
While any prediction of outcome is very difficult, advocates for low income people were cheered by the questions and comments from Justices O'Connor and Kennedy, seen as the key swing votes in the case. For example, O'Connor objected very early on to California's argument that the reduced benefit it paid was not a penalty on the exercise of the right to travel, for, she said, receiving $300 rather than $600 "has grave consequences for [a] family." Justice Kennedy expressed skepticism about California's claim that deterrence of migration was not the purpose of its durational residency provision. During the state's argument, Justice Ginsberg echoed the theme that ran through plaintiffs' brief: that "the genius of the United States [is] that people can pick their states and states can't pick their people." The court was very active, with Justices Breyer, Ginsberg, Kennedy, Scalia, Souter and Stevens all asking questions. The United States then attempted to state its argument that Congress could authorize the states to do what they could not have done by themselves, but was met with skepticism by Justices O'Connor, Stevens and Souter. Justice Ginsberg said she was astonished by the United States' contention that Congress could allow states a "choice of law" in setting benefits for new residents, saying that "choice of law" doctrine applied when two different states had an interest in the subject matter and one or the other law had to be chosen to resolve the matter. The Solicitor General responded that the term "choice of law" (which had permeated the U.S. brief, but without any citation or definition) was being used analogically, not literally. When the S. G. asserted that the federal law did not allow the sweeping provision adopted by California, but only one tailored to address persons coming into the state seeking welfare, Justice O'Connor noted that that approach was not reflected in the statute. The S.G. responded that the federal law set the outer bounds of permissible state action, but did not give the states a free pass. The New York Times reported that "The court appeared impatient with the solicitor general's nuanced position, which his 10 minutes of allotted time left him little chance to articulate." In a tour de force, in which he referred assuredly and with citations to prior opinions of the Justices asking questions, Mark Rosenbaum argued that the durational residency provision was "antithetical to the core values of our federal system of dual sovereignty" and that the principle that "citizens are free to vote with their feet and to act on whatever their needs and tastes are" was a "notion that absolutely saturates" the court's cases on state and federal sovereignty. Justice Scalia kept expressing skepticism that there was a basis under right to travel doctrine for distinguishing between the rules that applied to residents and non-residents (he expressed annoyance that he could not get the same fishing and hunting rights in Louisiana as its residents had, and others on the court later referred to the "Scalia exception" to the rule), but others on the court did not seem moved. Justice Rehnquist spoke about the cases that allow states to charge higher college tuition to persons who have not resided in the state for a year, and this led to discussion about broad principles and fundamental rights. All Justices other than Clarence Thomas asked questions or made comments during Rosenbaum's argument. Although a number of the amicus briefs supporting California argued that Shapiro v. Thompson was no longer good law, California did not make that argument and none of the Justices addressed it specifically. It is possible that Justices Scalia and Rehnquist had it in mind in some of their questions. Justice O'Connor made clear her interest in the Privileges and Immunities Clause, the basis for a number of her sole opinions in the 1980's.
Respondents' attorneys: Mark D. Rosenbaum et al., ACLU Foundation of Southern California, 1616 Beverly Blvd., Los Angeles, CA 90026, tel. 213-977-9500; Evan H. Caminker; Lawrence H. Tribe; Martha F. Davis et al., NOW Legal Defense & Education Fund (NYC); ACLU and various chapters; Western Center on Law and Poverty.
Thibault v. Department of Transitional Assistance, Civil Action No. SUCV97-04740C (Mass Superior Ct., Suffolk, Dec. 29, 1998) (Preliminary Injunction).
This case challenges the process by which disability determinations are made for adult applicants and recipients for Emergency Aid to Elderly, Disabled, and Children (EAEDC) and Transitional AFDC (TAFDC)as contrary to various state and federal law requirements (including state laws governing the disability determination process and requiring fair and equitable treatment and the federal Americans With Disabilities Act and Title VI of the Civil Rights Act), and federal and state due process requirements. The case was first reported in the December 1997 Welfare Bulletin. Defendants are the state agency and HealthPro, the private contractor responsible for disability determinations. Following plaintiffs' request for a preliminary injunction on behalf of certain TAFDC applicants and recipients, the court granted a preliminary injunction for those who from November 1, 1995 until July 1, 1998 requested a disability exemption from the agency, had those requests sent to HealthPro, received a letter from HealthPro, and were found not disabled because they did not comply with the instructions in the letter. The letter generally told the individual to make an appointment with the treating physician and to notify HealthPro of the appointment within 10 days. The court found the letter "confusing; difficult to understand, complete, and return; and technical in nature." To comply with the instructions a person would need an educational level that most recipients do not have. The court found that denying a disability finding solely for non-compliance with the letter "would likely be an arbitrary and technical practice rising 'to the level of unreasonableness'. See Correia v. Dept. of Public Welfare, 414 Mass. 157 at 164 (1993)." The court barred reductions or terminations until such individuals have had their exemption request reviewed by the current contractor under procedures required be regulation. Plaintiffs' counsel notes that the injunction prevents reductions or terminations for reaching the time limits or for sanctions for being unable to comply with work requirements and that denials for failure to comply with the letter amounted to about 56% of all disability denials. Class certification was denied without prejudice for plaintiffs to renew their request at a hearing on February 11th. Case papers are posted on Neighborhood Legal Services' website: www.neighborhoodlaw.org.
Plaintiffs' attorneys: Jim Breslauer and Michael Raabe, Neighborhood Legal Services, 170 Common St., Suite 300, Lawrence, MA 01840-1507, tel. 978-686-6900; email: bres@gblas.org or michael@gbls.org; Brian Flynn and Melanie Malherbe, Greater Boston Legal Services; Paul Osbourne, Regnante, Sterio and Osborne, Wakefield, MA.
Reynolds v. Giuliani, 98 CV 8877 (WHP) (S.D.N.Y., filed Dec. 16, 1998).
This case, filed as a class action, claims that New York City is illegally discouraging and deterring thousands of needy individuals from applying for Food Stamps, Medicaid, and cash assistance. Defendants include city and state officials. The deterrence results from the City's ongoing conversion of Income Support Centers into Job Centers. Plaintiffs claim that in furtherance of the Mayor's goal of diverting people from public assistance, Job Center staff routinely mislead prospective applicants, deny individuals the right to apply when they first visit a Center, pressure them into withdrawing their application, wrongfully deny Food Stamps and Medicaid when cash aid is denied, and fail to provide notices of denial and hearing rights. They claim that the city is violating various federal Food Stamp and Medicaid requirements, including those protecting individuals' right to apply without delay and receive prompt determinations, to receive expedited Food Stamps and Medicaid, and to have Food Stamp and Medicaid eligibility determinations made separately from cash assistance eligibility determinations; state laws regarding the right to apply for cash assistance and receive prompt determinations; and due process. At a December 16th hearing, the Court ordered the city to provide food stamps and emergency cash assistance to meet nutritional needs to the named plaintiffs and ordered an expedited hearing.
Plaintiffs' attorneys: Marc Cohan and Rebecca Scharf, Welfare Law Center, 275 Seventh Avenue, Suite 1205, New York, NY 10001-6708, tel. 212-633-6967, fax 212-633-6371, email cohan@welfarelaw.org or scharf@welfarelaw.org; Christopher D. Lamb, Hwan-Hui Helen Lee, Anne K. Callagy et al., Legal Aid Society, Civil Division, New York City; Constance P. Carden and Randal S. Jeffrey, New York Legal Assistance Group, New York City; and Kenneth Rosenfeld, Northern Manhattan Improvement Corp., New York City.
DeJesus v. Department of Revenue et al., Civil Action No. 98-59946 (Mass. Superior Court, Suffolk)(complaint filed Nov. 25, 1998).
Plaintiffs in this case, which was filed as a class action, are TANF recipients who have been sanctioned for alleged failure to cooperate with child support enforcement requirements and who are willing to cooperate and have conveyed or tried to convey that willingness to the state TANF and child support agencies but who have been unable to get the sanctions lifted. Defendants are the Department of Revenue (DOR) which is responsible for determining cooperation and the Department of Transitional Assistance (DTA) which administers the TANF program. Plaintiffs claim that DOR is violating state law which requires it to remove the sanctions of those who cooperate and to promptly notify DTA of such cooperation. They also claim that DTA is violating state statutory and regulatory requirements requiring fair and equitable administration, the provision of all benefits for which individuals are eligible, assistance in obtaining verification, and notice to recipients. Plaintiffs also assert federal and state due process claims. The factual allegations in the complaint tell of a bureaucratic nightmare in which recipients may not know why they have been sanctioned in the first place, and cannot get DOR to remove the sanction when they express willingness to cooperate or help from DTA in getting DOR to remove the noncooperation determination. Plaintiffs' counsel reports that the defendants have agreed to reinstate benefits to the named plaintiffs retroactive to their sanction date (with one minor exception).
Plaintiffs' attorneys: Brian Flynn (bflynn@GBLS.org) and Daniel Manning, Greater Boston Legal Services, 197 Friend St., Boston, MA 02114, tel. 617 371-1270, fax 617 371-1222.
G.Q. v. Department of Human Services, Division of Family Development, No. A-5847-96T5 (N.J. Superior Ct., Appellate Div., Dec. 22, 1998).
The court has affirmed an administrative decision which upheld the agency's 1996 decision to count as income for purposes of the former AFDC program, child support paid by a father for a child subject to the family cap. Because of the family cap rule, the family's AFDC grant was not increased when the child was born, but the grant was instead subsequently reduced from $440 per month to $104 per month to reflect the father's child support payment for the excluded child. The court concluded that under the law applicable at the time, a child subject to the family cap was excluded from the eligible unit for cash assistance purposes only. The court accepted as reasonable the agency's position that such a child is included in the unit for other purposes, including receipt of income from non-AFDC sources, such as child support.
Appellant's attorney: Timothy Block, Middlesex County Legal Services, New Jersey.
Hunsaker v. Contra Costa County, 1998 WL 401139 (9th Cir. (Cal)., July 20, 1998).
As noted in the July 1998 Welfare Bulletin, in July the Ninth Circuit reversed the granting of the preliminary injunction in this Americans With Disabilities Act challenge to the use of a substance abuse screening test to identify those GA applicants who supposedly had substance abuse problems. The test was highly inaccurate. Those who failed the test were subject to treatment requirements and lost benefits if they failed to comply. The Western Center on Law and Poverty has reported that the County has settled the case despite the Ninth Circuit decision and that it will not resume use of the test. Each class member will receive at least $300 and the named plaintiffs will each receive $10,000. According to the Western Center, the test was used to reduce the county's GA costs. In the first year of its use, expenditures dropped by 40% and the number of GA recipients by 30%.
Plaintiffs' attorneys: David J. Berger, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA; and Ed Chen, ACLU of Northern California, tel. 415 255-8437; and others.
Case Boatman v. Hammons, No. 97-1530 (6th Cir. Dec. 18, 1998).
In this case plaintiffs claimed that the state was in violation of federal Medicaid requirements by 1) not giving written notice of denials of Medicaid transportation requests; 2) not providing sufficient information about transportation assistance; and 3) failing to achieve uniform statewide operation of the Medicaid transportation policy. The Sixth Circuit has reversed the unfavorable decision of the lower court on the first two claims and affirmed the adverse decision on the third claim. According to the court, the state had no written application form for transportation assistance, no requirement that caseworkers record requests for transportation assistance, and no requirement that workers issue denial notices or maintain written records of actions on requests. The court concluded that since the state is required to ensure that transportation is available to Medicaid recipients, "ensured transportation" is a covered service and that under the Medicaid statute and regulations the state must provide written notice of denials and hearing rights. It specifically found that the federal regulation on transportation assistance gave plaintiffs an enforceable right under 42 U.S.C. . 1983, rejecting a contrary conclusion from the Eleventh Circuit. The court also concluded that the state did not provide information about transportation assistance in its written materials, in violation of federal law. It rejected the statewide uniformity claim, finding that the lower court did not err in finding the state's policies and practices did not violate the vague regulation and that mere differences in expenditures did not show a lack of uniformity. With respect to plaintiffs' claim that the state had no system to review local agencies' adherence to the state plan, the court noted that the lower court had dismissed this claim as moot because the state had developed monitoring procedures and also observed that the requirement for written denial notices would minimize arbitrariness in the application of the transportation policy. Plaintiffs' counsel notes that the court did not address their appeal from the lower court's adverse ruling on the claim that the state had failed to ensure transportation as required by the regulation.
Plaintiffs' attorneys: Jacqueline Doig and Terri Stangl, Center for Civil Justice, 320 South Washington Avenue, 2nd Floor, Saginaw, MI 48607-1158, tel. 517-755-3120, fax 517-755-3558, email cfcj@concentric.net.
Velazquez v. Legal Services Corporation, No. 98-6006 (2nd Cir., Jan. 7, 1999).
In this challenge to a number of Congressional restrictions on federally funded legal services programs (the 1996 Act), the court upheld all of the restrictions challenged except for one. Since this was an appeal from a denial of a preliminary injunction, the plaintiffs had to show that they were likely to prevail on the merits. Since plaintiffs' challenge was a "facial" challenge to the statute and regulations, and not a challenge to their application in a particular case, plaintiffs could not prevail unless they could show that the statute and regulations could not be valid under any set of circumstances. 1. Statutory issue. The court first addressed the reasonableness under the 1996 Act of the regulations allowing a restricted legal services program to provide unrestricted funding to an affiliated organization under certain circumstances (the "program integrity" provision). The court rejected plaintiffs' claims that the regulations were an unreasonable interpretation of the statute. 2. Constitutional challenge. The court then addressed three possible grounds for finding the program integrity provision, and certain of the specific restrictions, unconstitutional. a. Lawyer-client relationship. The court held that whether or not there is "an 'all-encompassing' lawyer-client relationship [that] enjoys heightened protection from government regulation," Congress can limit the services provided, and the lawyers can explain these limitations to prospective clients and make appropriate referrals. b. Unconstitutional conditions. The court rejected plaintiffs' claim that the program integrity regulations unreasonably burden a grantee's ability to use nonfederal funds to engage in restricted activity, in violation of protected rights of association and speech. The court reviewed three major Supreme Court precedents and concluded that under certain circumstances "Congress may burden the First Amendment rights of recipients of government benefits if the recipients are left with adequate alternative channels for protected expression." In response to plaintiffs' allegations that the program integrity rules are extraordinarily wasteful and costly, the court responded that it cannot consider such considerations in a facial challenge. c. Viewpoint discrimination. The court then considered "plaintiffs' claim that the 1996 Act discriminates against certain speech on the basis of viewpoint and is therefor unconstitutional under the First Amendment even if applied to the use of federal monies." It first reviews the "sweeping" restrictions on lobbying and agency rulemaking, and concludes that the activity is prohibited outright with federal funds, regardless of point of view, and is therefore constitutional. It then turns to the "more obscure" welfare reform provision (sec. 504[a][16] of the Act) which prohibit activities "involving an effort to reform ... a welfare system." Generally speaking, the provision is viewpoint neutral and therefore constitutional. However, there is an exception that allows a legal services program to represent a client "who is seeking specific relief from a welfare agency" and a proviso that such representation can be provided only " if such relief does not involve an effort to amend or otherwise challenge existing law..." The court splits in its analysis of this proviso. The two judge majority holds that this proviso "is not viewpoint neutral. It accords funding to those who represent clients without making any challenge to existing rules or law, but denies it to those whose representation challenges existing rules." In evaluating Supreme Court precedent, the majority concludes that "different types of speech enjoy different degrees of protection under the First Amendment." Of greatest concern is the right to criticize government or advocate change in governmental policy. "Criticism of official policy is the kind of speech that an oppressive government would be most keen to suppress." Government may not seek to "drive certain ideas or viewpoints from the marketplace." "If the idea in question is the unconstitutionality or illegality of a governmental rule, the courtroom is the prime marketplace for the exposure of that idea." The proviso cannot be sustained under First Amendment strict scrutiny examination. The majority then determines that the appropriate remedy is to leave the exception in place without the proviso. The case is returned to the District Court for entry of a preliminary injunction to that effect. The dissenting judge contends that the precedents relied upon by the majority allow Congress to deny funding to constitutionally permissible but "expensive services," as it has done here, and that in any event no viewpoint has been favored. He notes that other restrictions continue in place, such as the prohibition on class actions. Moreover, by striking the proviso barring statutory and constitutional challenges in individual welfare cases, "the majority essentially appropriates money for the precise category of expensive (and often politically oriented) cases that Congress chose not to fund."
Plaintiffs' attorneys: Deborah Goldberg, E. Joshua Rosenkranz, and David S. Udell, The Brennan Center for Justice, New York, NY; Peter M. Fishbein and Alan Rothman, Kaye Scholer, Herman, Hays & Handler, LLP, New York, NY.
In re X (State of Washington, Dept. of Social and Health Services, June 29, 1998) (Review Decision and Final Order).
In what Washington advocates report is a case of first impression an administrative review judge has ruled in favor of a TANF 16 year old unmarried pregnant teen who moved in with a 19 year friend after several temporary arrangements following her departure from her mother's home. The judge rejected the agency's position and affirmed the favorable initial administrative hearing decision finding that the claimant did not have to live in her mother's home in order to qualify for TANF benefits. According to the record, the agency social worker had observed that the mother's home was unsuitable, that the mother was rigid, that there had been physical altercations, that it was unreasonable to expect reconciliation, and that it was in the best interests of the teen and her mother that alternate arrangements be made. Another agency social worker had assessed the new living situation and found it acceptable and stable. The Review Judge agreed with the initial decision finding the new living situation to be adult-supervised and appropriate.
Plaintiff's representative: Stephen Gockley, Northwest Justice Project, Bellingham, Washington.
In re E.H., DCIS No.:___ (Delaware Dept. of Health and Social Servs., Div. of Social Servs., Dec. 11, 1998).
The claimant challenged a sanction for failure to attend an employment and training appointment on the grounds that she was excused from the appointment by an agency worker during claimant's visit to the welfare office on the day of the appointment. The client had visited the office to obtain a child care facilities list. The worker claimed that the claimant did not appear in the office that day and was not excused. To support her claim that she had visited the office that day, claimant submitted a DSS print-out of child care facilities which could only have been accessed by DSS staff and which had the date on which claimant claimed she visited the office. Based on this evidence the hearing officer concluded that claimant's testimony was true and that the worker's recollection of the events was mistaken. The hearing officer ordered the sanction expunged.
Claimant's attorney: Deborah Gottschalk, Community Legal Aid Society, 913 Washington St., Wilmington, DE 19801, tel. (302) 575-0660; fax (302) 575-0840.