State of New Mexico ex. rel. Taylor v. Johnson et al., Docket No. 24,547 (New Mexico Sup. Ct., May 29, 1998).
This case grew out of a confrontation between the Governor and the state legislature over the state's TANF plan. Following his veto of TANF legislation, the Governor implemented his own version of welfare reform. Members of the state legislature and public assistance recipients filed suit. In a unanimous decision, the New Mexico Supreme Court has restated its September 1997 holding that the Governor and Secretary of the New Mexico Human Services Department violated the separation of powers provision in the state constitution by implementing their own version of TANF administratively without the participation of the state legislature. It has further held that the respondents have not complied with the earlier writ directing them to stop implementing their plan and to comply with existing law and has therefore held respondents in indirect civil contempt.
As to the separation of powers violation, the court had "no doubt" that the Governor's TANF plan makes substantive policy changes reserved to the legislature. It rejected the respondents' arguments that state statutes confer discretion upon them to make the changes they made, finding that these limited discretion rather than conferred carte blanche discretion. The court also rejected the argument that the PRA imposes requirements which the Executive could implement absent legislative action, noting that many elements of the Governor's program were not required by federal law. Finally, it rejected the Governor's argument that the legislature could simply adopt legislation if it disagrees with the Governor's program. Given the Governor's usurpation of legislative authority, the legislature would be responding to policy changes and would have to garner a two-thirds majority for a veto- override to make any changes in the Governor's plan.
As to contempt the court noted that the respondents made no attempt to comply with the September 1997 writ of mandamus and openly defied the court. Despite advice to comply from the State Attorney General and the agency's general counsel, the respondents continued their program. Contempt proceedings followed and respon dents refused to consider efforts of the Chief Justice to encourage resolution. The court characterized the respondent's arguments that the state could not follow current law without losing federal funding as an attempt to mislead the court because they claimed that all federal funds would be lost immediately.
After concluding that respondents should be held in indirect civil contempt, the court noted that it has authority to impose the full range of sanctions against executive branch members, including fines and imprisonment. It rejected petitioners' request for a special master to oversee the program and instead directed respondents to stop administering their own program within seven days, with further sanctions if respondents do not immediately comply. The court retained jurisdiction.
Petitioners' attorneys: Joseph Goldberg, Freedman, Boyd, Daniels, Hollander, Guttman
& Goldberg, Albuquer que, NM; New Mexico Center on Law and Poverty, 121 Tijeras, NE,
Suite 3001, Albuquerque, NM 87102; tel. 505- 243-6282.
Matthews v. Barrios-Paoli, Index No. 404575/97 (N.Y. Sup. Ct., N.Y. Cy., May 29, 1998).
The court has granted preliminary relief and class certification in this challenge by 18 and 19 year old New York City high school students who receive Safety Net Assistance and who were assigned to workfare activities that interfered with their high school studies. Plaintiffs include individuals whose assignments gave them virtually no time to do homework or to take advantage of tutoring and for whom compliance with workfare meant that they would be unlikely to pass their high school courses. Plaintiffs claim that City violates the State Constitutional requirement for a free public education and state Social Services law in making workfare assignments that interfere with educational activities. The court found that state regulations limiting educational activities to classroom activities and eliminating consideration of homework city are impermissibly restrictive and that the City's practice of assigning the student to workfare without an employability plan violates the statute. The court also rejected arguments that plaintiffs had failed to exhaust administrative remedies.
Plaintiffs' attorneys: Christopher Lamb of the Legal Aid Society, Staten Island Office,
60 Bay Street, Staten Island, NY 10301; tel. 718-273-6677; fax 718-442-2679; e-mail
clamb@legal-aid.org; Connie Carden of the New York Legal Assistance Group, 130 East 59th
Street, 14th floor, New York, NY 10022; tel. 212-750-0800; fax 212-750- 0820; Marc Cohan,
Welfare Law Center; and Courtney Scott of Milbank, Tweed, Hadley, and McCloy.
Donivan v. Department of Children and Family Services, Case No. _____ (Fla. Division of Adm. Hearings, April 1998).
This administrative petition, filed pursuant to the state Administrative Procedure Act, challenges the validity of a proposed rule to give to local WAGES coalitions the authority to prioritize time limits hardship exemption criteria according to "conditions in the local community." (WAGES is the state's TANF program.) Under state law, hardship exemptions are available for those who have participated diligently in work activities or who have significant barriers to employment. In other cases, a family can get partial aid for a child as a protective payment, if the child would likely be placed in a shelter or foster care if WAGES benefits end. The number of exemptions available is limited to 10% of participants in the first year, 15% in the second, and 20% in the third.
Petitioner claims that the proposed rule is invalid under the state APA because it exceeds the Department's authority and is an invalid exercise of legislative authority, because the statute does not provide for prioritization. She also claims that the proposal violates the state APA because it is inconsistent with state law which requires the Department, not local WAGS coalitions, to establish hardship exemption policy; does not provide adequate standards or guidance as to what prioritization means; and gives unbridles discretion to local WAGES coalitions.
Plaintiff's counsel reports that the Department has agreed to eliminate the challenged provisions and that according to the Department there are enough exemption slots until at least late 1999.
Petitioner's attorneys: Cindy Huddleston, Florida Legal Services 212 Delta Blvd.,
Tallahassee, FL 32303; tel. 850- 385-7900; fax 850-385-9998; e-mail
cindy@floridalegal.org; Valory Greenfield, Florida Legal Services, Miami office; tel.
305-573-0092.
Moore v. Perales, 85 CV. 1838 (E.D.N.Y., April 10, 1998)
A settlement has been achieved in a long standing class action challenging the failure of New York State to timely schedule and hold fair hearings and render decisions after hearing and the failure of the City of New York to comply timely with favorable decisions in the AFDC and food stamp programs. Because of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, the plaintiff class withdrew so much of their claims as sought to enforce federal regulatory provisions concerning the fair hearing process in the AFDC program. The claims concerning the timeliness of the hearing process for hearings concerning cash assistance have been filed in state court to enforce favorable state statutory and regulatory protections.
The claims regarding the timeliness of the fair hearing process for food stamp applicants and recipients remain in federal court. The settlement provides that the entire fair hearing process must be completed so that in no less than 90% of hearings requested concerning food stamps the decision must be rendered and, if favorable, complied with within 65 days from date of request. Extensive monitoring, notice, and individual relief provisions are also included in the settlement.
Editor's note: In 1998, it is projected that over 180,000 fair hearings will be requested in New York City to challenge acts or failures to act concerning public assistance, Medicaid, food stamps, and all other entitlements. We estimate that the appellant will be successful in over 60% of the hearings held.
Plaintiff's attorney: Marc Cohan, Welfare Law Center.
Matter of Stone v. Sweeney, Index No. 402891/97 (N.Y. Sup. Ct.) New York Law Journal, May 20, 1998, p. 26.
This case challenges the New York State Labor Commissioner's refusal to permit workfare workers to have a representative of their choosing present at inspections resulting from health and safety complaints made by workers. Plaintiffs claim that the defendant violated state labor law, federal and state equal protection and due process guarantees, and the First Amendment to the U.S. Constitu tion. The court has rejected the claims, finding that the representative (NELP) was not an "authorized employee representative" within the meaning of the law, that is an employee authorized by the employees or the designated representative of a recognized or certified bargaining unit. The court also rejected claims that rejection of NELP as the representative violated procedural due process, equal protection or First Amendment rights.
Plaintiffs' attorneys: James Williams and Karen Yau of the National Employment Law
Project, 55 John Street, 7th Floor, New York, NY 10038-3712; tel. 212-285-3025; fax
212-285-3044.
Philips v. Washington Legal Foundation, -- U. S. -- (June 15, 1998).
The United States Supreme Court has ruled 5 - 4 against the Texas Interest on Lawyer Trust Account (IOLTA) program in an initial stage of litigation that could endanger a substantial source of funds for legal services programs throughout the country. The case now returns to the District Court in Texas for further proceedings.
Chief Justice Rehnquist wrote for the five Justice majority, holding that interest earned on a client's funds in a lawyer's IOLTA account is property belonging to the client. The Court remanded the case to the District Court to determine two further questions: (1) whether the IOLTA funds have been "taken" by the state, and (2) if there has been a taking, the amount, if any, of "just compensation" due the clients.
All of the Justices agreed that the clients would not have received any interest if the funds had not been placed in the IOLTA account. This was because the amount of the funds was too small, or the funds were being held for too short a time, to generate interest in excess of the cost of administering the funds under banking regulations. The Justices also all agreed that this case does not determine the constitutionality of IOLTA programs since the District court must still consider the questions of taking and just compensation.
Justice Breyer, joined by Stevens, Souter and Ginsberg, argued in dissent that prior Supreme Court decisions suggest that there is no property interest in an increase in the value of property where that increase results from the government's action in taking the property for legitimate government purposes.
Justice Souter, writing for the same four Justices, contended that the Court should
have remanded all three questions for decision together, since the lower courts only
considered the first question. In looking at the second and third questions, he says, it
is likely that there has been no "taking" since there has been no economic
impact or interference with an investment-backed expectation. It is also likely that no
compensation is due. The Court's failure to address these questions together could
encourage other litigation, such as whether the government owes interest to a taxpayer
when more tax is withheld than is owed.
Ramos v. McIntire, Civil Action No.____ (Mass. Superior Ct., Suffolk Cy., complaint filed April 28, 1998).
This class action claims that the Massachusetts TANF agency which administers the Employment Services Program (ESP), through which TANF recipients can access educational programs to help them prepare for employment, discriminates against those with disabilities by failing to provide basic literacy programs for such individuals. The named plaintiff is TANF recipient with learning disabilities that interfere with her ability to read and write. After receiving notice of the TANF two year time limit, plaintiff unsuccessfully sought an ESP program for those with learning disabilities. Plaintiff sought a program that would teach her to read and write so as to improve her chances for employment. She has been attending a GED program that is not suitable for her. Plaintiff also has a pending claim for a disability exemption from TANF time limits and work requirements. She seeks access to ESP services on an equal basis with other recipients. The complaint alleges that the failure of the $25 million ESP program to provide programs for those with learning disabilities violates the Americans With Disabilities Act and a state constitutional provision protecting those with handicaps from discrimination. Plaintiffs seek declaratory and injunctive relief and monetary damages.
Plaintiffs' attorneys: Ruth A. Bourquin, Massachusetts Law Reform Institute, 99
Chauncey St., Suite 500, Boston, MA 02111, tel. (617) 357- 0700, ext. 311; e-mail:
rbourquin@gbls.org.
Cordos v. Turner, 98 CV ____ (S.D.N.Y., complaint filed June 1998)
Plaintiff has filed suit under the federal Fair Labor Standards Act for back wages, damages, and attorneys fees arising from the performance of workfare at less than the minimum wage. Mr. Cordos's claim stems from the failure of the City Department of Social Services to reduce the number of workfare hours to which Mr. Cordos was assigned when the rent portion of his grant was removed after he became homeless.
Plaintiff's attorneys: Marc Cohan, Welfare Law Center; Catherine Ruckelshaus &
James Williams, National Employment Law Project, 55 John Street, 7th Floor, New York, NY
10038-3712; tel. 212-285-3025; fax 212-285- 3044.
Appeal of X (Pa. Dept. of Public Welfare , Dec. 30, 1997).
Appellant, a TANF recipient, challenged a sanction for non-cooperation with child support requirements when the two men she named as potential fathers were ruled out by genetic testing. The regulation provides for a presumption of non-cooperation when two putative fathers named by the mother are excluded by genetic testing and a mother fails to identify the putative father. The presumption can be rebutted only by clear and convincing evidence. Appellant testified that due to her prior drug addiction she could not identify another potential father. The Bureau of Hearings and Appeals found that her inability to name the father does not indicate non-cooperation because she complied to the best of her ability. This case is important in helping to determine the line between a presumption of non-cooperation rebuttable by clear and convincing evidence and an impermissible absolute informational requirement.
Petitioner's attorney: Kimberley Berry, Community Legal Services, 3638 N. Broad St.,
Philadelphia, PA 19140, tel. (215) 227-2400, ext. 2434; e-mail: kberry@clsphila.org.
In re X (Wash. State Office of Administrative Hearings for Dept. of Social and Health Services, Apr. 24, 1998).
This hearing challenged the agency's decision to terminate appellant's General Assistance on the ground that she did not meet the incapacity standard. The hearing officer concluded that the termination notice was inadequate because it did not contain an accurate and complete statement of the grounds for termination and thus was ineffective to terminate aid. He noted that adequate notice is particularly important because the recipient can present information needed to maintain eligibility if proper notice is given. He also concluded that the Department had not shown that the recipient's condition had improved or that the original decision was incorrect. (Columbia Legal Services reports that there has been an increase in the number of inadequate notices sent to public assistance recipients.)
Appellant's attorney: Meagan Mackenzie, Northwest Justice Project, 2635 C Parkmont Lane SW, Ste. B, Olympia, WA 98502.