Roe v. Anderson, No. 97-16326 (9th Cir. Jan. 28, 1998), 1998 WL 28078 (9th Cir. (CA)).
The court has unanimously affirmed the district court's granting of a preliminary injunction in this challenge to California's durational residency policy which limits welfare benefits to new state residents for their first year of residency to the amount of welfare available in the state of prior residence. The lower court's decision, reported at 966 F. Supp. 977 (E.D. Cal. 1997), was based on federal equal protection and the right to travel, and its prior decision in Green v. Anderson, 811 F.Supp. 516 (E.D. Cal. 1993), aff'd. 26 F. 3d 95 (9th Cir. 1994), vacated as unripe, 513 U.S. 557 (1995).
The Ninth Circuit's affirmance is based on its prior affirmance in Green and the apparent purpose of the state policy of deterring migration of poor people to California. It rejected the state's arguments that 1) the prior Green decision was not persuasive authority in light of the U.S. Supreme Court's subsequent ruling to vacate it as unripe, 513 U.S. 557 (1995); and 2) that Green was outdated in light of the PRA of 1996 which purported to authorize such durational residency requirements. As to the latter, the court noted that Congress cannot authorize states to violate the equal protection clause. In agreeing that plaintiffs demonstrated the possibility of irreparable harm, the court rejected the state's argument that the court should compare the position of newcomers before and after their arrival in the state rather than look at the different treatment given to new and longer-term state residents.
Plaintiffs' attorneys: Mark Rosenbaum et al., ACLU Foundation of So. California, 1616
Beverly Blvd., Los Angeles, CA 90026, tel. (213) 977-9500; Martha Davis et al., NOW Legal
Defense & Ed. Fund (NYC); ACLU Foundation of San Diego & Imperial Counties; ACLU
Foundation of No. California.
Ruffin v. Quasim, No. C97 5767 (W.D. Wash. Feb. 5, 1998).
Following the recent Ninth Circuit decision in Roe v. Anderson, No 97-16326 (9th Circ. Jan. 28, 1998), 1998 WL 28078 (see previous entry), the court has granted a preliminary injunction in this challenge to Washington's durational residency statute which pays lower welfare benefits to new residents who apply during their first year in Washington for an entire year after their date of application. Benefits paid to such new residents are set at the level of benefits available in the new resident's former state. Plaintiffs' complaint raises claims under the federal constitutional right to travel and under the federal and state constitutions' equal protection clauses.
Plaintiffs' attorneys: Larry M. Carter, Paul J. Lawrence, Marc C. Levy, Preston Gates
& Ellis LLP, 701 Fifth Avenue, Suite 5000, Seattle, WA 98104-7078; Rebecca Smith,
Grace Huang, Columbia Legal Services, West/Southwest Office, 1006 5th Avenue S.W.,
Olypmia, WA 98502-5412; Anne F. Ackenhausen, Perkins Cole LLP, 1201 Third Avenue, 40th
Floor, Seattle, Washington 98101-3099, cooperating attorneys with Northwest Women's Law
Center.
Gregory v. Kitchel, File No. 2:97-CV-135 (D. Vt., Jan. 30, 1998).
Plaintiffs challenged welfare agency action in converting a portion of their cash benefits to a vendor payment to the landlord without an opportunity for a hearing prior to the change. One of the plaintiffs had been notified that she would be evicted, and was withholding rent to pay for the move to another apartment. Another plaintiff on voluntary vendor payments found that he could not stop the payments to his former landlord even after he moved. Vermont provides advance notice and an opportunity to make a presentation to a caseworker before implementation of a vendor payment, but does not provide for a fair hearing until after the vendor payment is implemented. In a summary judgment decision, the Magistrate Judge noted that the amount of aid paid had not changed even though the manner of payment had changed, and then held that Vermont laws do not create an entitlement in cash benefits and that therefore the state's procedures used in placing persons on vendor payments "are not subject to due process scrutiny."
Plaintiffs' attorney: Steve Norman, Vermont Legal Aid, P.O. Box 1367, Burlington VT
05401, tel. 802-863-5620; fax: 802-863-7152.
Winston v. Schauseil, 93-CV-6045L (Order Approving Settlement, Nov. 7, 1997 and Stipulation).
This class action on behalf of AFDC, Food Stamps, and Medicaid applicants and recipients challenged county practices resulting in processing delays, including failure to inform individuals of their rights to timely processing of applications, to grant appointment interviews within 5 days, to process applications without delays and within 30 days, to process changes promptly, to have a system to assure timely restoration of aid when the state department orders aid continuing, and to have a system to assure timely compliance with fair hearing decisions and settlements. The parties have entered into a comprehensive settlement specifying the steps the defendant will take to assure compliance with processing requirements. These steps include application processing goals of 5 days (for AFDC and FS) after receipt of completed documentation (10 days for Medicaid); use of existing documentation in a case record for facts not subject to change if the individual has a prior case record; limits on inappropriate documentation requests; opening of the case as of the date client provides documents originally requested where county has failed to include all required documents in initial request to client; changes to be made within 10 days from date verification is received; steps to assure that aid continuing is provided within 5 working days of a directive from the state fair hearing office; compliance with fair hearing decisions within 10 days of receipt of the decision by the county. The stipulation includes procedures for modifying the terms of the agreement including modifications required by state legislation and for monitoring compliance.
Plaintiffs' attorney: Bryan Hetherington, Public Interest Law Office of Rochester, 80
St. Paul St., Suite 701, Rochester, NY 14604, tel. (716) 454-4060; fax (716) 454-45019.
Lewis v. Barrios-Paoli, Index No. 400695/97 (NY Sup. Ct., NY County, Jan. 28, 1998).
Petitioner challenged an administrative hearing decision, which affirmed workfare sanction imposed when she failed to keep appointment due to medical illness. The court reversed the administrative hearing decision and found that the hearing provided was neither "fair" nor a "hearing". The court criticized the brevity of hearing, the failure of the ALJ to consider testimony of appellant, and the misapplication of law to facts. The court then vacated the underlying sanction finding that the local agency had failed in its duty to assist appellant in documenting her good cause for failing and refusing to comply with workfare requirements.
Plaintiffs' counsel: Susan Sternberg, Legal Aid Society, Brooklyn Neighborhood Office,
166 Montague Street, Brooklyn, New York 11201, (718) 722-3100.
Tormos v. Hammons, Index No. 400695/97 (NY Sup. Ct., NY County, Jan. 9, 1998).
In this proceeding, petitioner successfully challenged the termination of cash assistance for failing to complete a nursing program. In an earlier decision (reported in the June 1997 Welfare Bulletin), the Court determined that petitioner's failure to complete the program was neither willful nor without good cause. In this decision, the Court awards petitioner attorney's fees in the amount of $20,000 under New York State's Equal Access to Justice Act. In granting the award, the trial court determined that petitioner had prevailed, that the positions taken by the State and City were not substantially justified, and that no special circumstances would make such an award unjust.
Plaintiff's attorney: Warren Scharf, Legal Aid Society, Brooklyn Neighborhood Office,
166 Montague Street, Brooklyn, New York 11201, (718) 722-3100.
Stewart v. Peters, No. 97-MR-344 (Circuit Ct., 6th Jud. Cir. Ill.)(Amended Complaint for Mandamus, filed Dec. 24, 1997).
Plaintiff has brought this mandamus action on behalf of a class of individuals who since July 1, 1997 have applied for or received Food Stamps and/or public assistance under the Aged, Blind, and Disabled Program or TANF and who have had any action(including approvals, denials, increases, reductions, terminations) taken regarding eligibility or benefit levels based on the state agency's calculation of income, expenses, or valuation of assets but who have not been provided the calculations with the written notice of action. Plaintiff's claims are based on due process requirements of the state and federal constitutions. Plaintiff has moved for class certification.
Plaintiff's attorney: George Bell, University of Illinois, College of Law Clinic, 504
E. Pennsylvania Ave., Rm. 241, Champaign, IL 61820, tel. (217) 244-9494.
The following are excerpts from the litigation docket of the Indiana Constitutional Justice Initiative, the welfare rights project of the Indiana Civil Liberties Union (ICLU). The docket will be available on the webpage of the ICLU: www.iclu.org. For more information contact Jackie Bowie, the attorney in charge of the welfare rights project at ICLU , 1031 E. Washington St., Indianapolis, IN 46202, tel. (317) 635-4059, x. 225; e-mail: Jebowie@aol.com.
Allen v. Glickman, et al. (U.S. District Court, Northern District), I:98CV0012
This is a very recently filed class action challenging the part of the federal welfare reform law that allows a state to permanently deny Food Stamp and TANF eligibility to anyone convicted of a drug-related felony since August 22, 1996. We are challenging the law on due process, equal protection, and double jeopardy grounds. We have requested a preliminary injunction for the named plaintiff, and we hope to have a hearing on that motion soon.
Cole v. Goldsmith (U.S. District Court, Southern District), IP97-1278-C M/S
This class action challenged the failure of Indianapolis Mayor Goldsmith to designate a fair and impartial poor relief hearing officer and the failure of the hearing officer to issue legally adequate notices of denial. ("Poor relief" is Indiana's general assistance program.) This case recently settled. Under the terms of the settlement, the poor relief hearing officer will issue denial notices which state the legal and factual basis for the denial and inform applicants of the right to appeal and be represented by counsel. The poor relief hearing officer who was not fair and impartial has already been dismissed and replaced. In addition, the Defendant has changed the poor relief denial notices so that they are legally adequate.
Gomolisky v. Davis (Marion County Superior Court), 49D01-9611-CP-1621
This class action challenges the failure of the State to provide Medicaid appeal procedures which satisfy due process and federal law. Specifically, the state engages in an illegal "agency review" procedure under which it may, and does, appeal applicant-favorable ALJ decisions to the agency (i.e., to itself) and often reverses such ALJ decisions. The parties have entered into a stipulation to the class and to a preliminary injunction for the named plaintiff. In addition, the parties are stipulating to the facts in the case. Summary Judgment motions will be briefed in early 1998 and we expect to have oral arguments on summary judgment around May 1998.
Minniear v. Davis (U.S. District Court, Southern District), IP97-1502 C
This is a class action challenging the failure of the Medical Review Team, which makes the initial Medicaid disability eligibility decisions in Indiana, to comply with due process and Indiana law in its decision making. The case is in the discovery phase and the parties have agreed to a summary judgment briefing schedule for May - June 1998. Oral Arguments should take place around the end of the summer of 1998.
N.B. v. Davis (Marion County Superior Court), 49D13-9705-CP-0753
This class action challenges Indiana's child exclusion rule on equal protection, due process and right to privacy grounds. This case will involve protracted and extensive discovery. The parties have stipulated to a class and a schedule for summary judgment briefing. Oral Arguments on Summary Judgment are scheduled for September 11, 1998.