Roe v. Anderson, No. 98-97 (U.S. Supreme Court).
The Supreme Court has set argument in the California durational residency case for January 13, 1999. The state and its allies and the United States of America filed their briefs in November, the plaintiffs and their allies filed their briefs in early December, and the state filed a reply brief on December 28, 1998.
The State and its Allies
California, the petitioner, argues in its brief that its durational residence provision relates to the level of benefits a family receives. Therefore, it says, the classification of recent and long term residents should be sustained under the more liberal "rational relationship" standard used in Dandridge v. Williams, which upheld family maximum grants, rather than the far more searching "strict scrutiny" standard used in Shapiro v. Thompson. Shapiro, the state argues, applies when the state has penalized the exercise of the right to migrate. The state claims there is no penalty when the benefit paid to the new resident is the same amount as the person would have received had they stayed in their prior state and applied for aid.
The amicus brief of the National Governors' Association and other state groups stresses the much greater variation among the states under TANF. It argues that the California provision does not impose a penalty on the exercise of the right to travel. It notes that the lowered California benefit is inadequate to obtain housing in Long Beach, but contends that "there are numerous localities throughout the State" where housing could be afforded. Moreover, since this rule was authorized by Congress, "those persons likely to be affected by durational residency rules were represented in the national political process which enacted this legislation."
The amicus brief of the Pacific Legal Foundation argues that since California must be able to address its status as a welfare magnet, and since the California provision does not penalize the exercise of the right to travel, a rational relationship analysis must be used. It also argues that the Shapiro analysis was faulty and should be discarded.
The amicus brief of the Institute for Justice relies upon the Privileges and Immunities Clauses and a natural rights analysis to find a strong support for a right to migrate, and no interference with that right by the California provision.
The United States of America
The Solicitor General has filed an amicus curiae ("friend of the court") brief on behalf of the United States which gives each side a little. The brief argues that the classification should be reviewed under an intermediate "substantially related to national governmental interests" level of scrutiny. The national governmental interests, it says, were reflected in the reasons for Congress authorizing states in the 1996 welfare legislation to have the option of applying durational residency provisions under which benefits are paid to recent residents at the level of benefits in the state which they left. The first interest is in a "national welfare program" that is now the "new, highly decentralized TANF program." This will lead to great variations among the states which "could produce both new incentives to move and new problems of interstate coordination." The second interest is that states might engage in a "race to the bottom" in benefit levels without such a requirement.
Since TANF is a national welfare program, and since the right of migration relates to national citizenship over which Congress has different authority than the states, an intermediate level of review is appropriate. The Court must therefore determine whether California has carefully targeted the problem Congress was seeking to address. Such targeting might include paying reduced benefits only to those persons who came for benefits, as opposed to those who could demonstrate they came for employment or to join family. Accordingly, the United States believes the preliminary injunction was properly granted, and that California should be allowed to demonstrate in the District court that its provision is properly targeted.
Plaintiffs and Their Allies
Respondents, the plaintiffs below, argue that the principle of free interstate migration is one of the cornerstones of our constitutional structure. While states are free to determine bona fide residency, they may not deny residents the full benefits of state citizenship, or try to select their citizens. The California law violates prohibitions against facial discrimination against new state citizens and against law designed to discourage in-migration. The United States amicus brief is wrong in that the federal statutory authorization for the residency requirement does not provide a basis for overcoming the unconstitutionality of the state provision. Lawrence Tribe, a noted Supreme Court scholar, signed the brief as co-counsel.
Twenty-two low income membership organizations and coalitions, represented by Cravath, Swaine & Moore and the Welfare Law Center, filed a brief setting forth factual information to show the many reasons low income families move to another state, and demonstrating that the real intent behind durational residency requirements in the various states is to deter migration by poor families.
Fifteen constitutional law scholars submitted an amicus brief providing a rich historical background seeking to demonstrate that the Constitution attempts a remarkable feat: creating a national citizenry with national rights while respecting the principle of federalism. While states have broad discretion to choose their policies, they may not choose their citizens. The "principle of equal treatment of new and old residents insures that national citizens can take advantage of the liberty-protecting characteristic of federalism -- the opportunity to flee oppressive states and migrate to states with more congenial laws." Many historical examples are given, many relating to the rights of fugitive slaves and freed Negroes.
The Brennan Center for Justice and a number of civil rights organizations submitted a brief focusing upon the need for particularly close scrutiny of durational residency requirements because of their anti-democratic origins. Those who are harmed had no opportunity to participate in the political process leading up to adoption of the provisions. "In each of the last three generations, entrenched political majorities have sought to prevent poor newcomers from migrating to their states by forcing the newcomers to live under harsh, discriminatory rules that do not apply to long-term residents."
Sixty-six organizations serving domestic violence survivors submitted a brief arguing that the impact of durational residency requirements is felt particularly keenly by women and children who migrate to escape brutal domestic violence. This violence frequently escalates when the victim attempts to flee from her abuser, and can be so relentless that the victim much change her identity, move to another state, and abandon all ties to her former life. Many have no means of support and without welfare must choose between utter destitution and returning to their abusers.
The State's Reply
The state contends that many of the briefs discuss whether the statute is good policy, but that is not the question before the Court. Rather, the Court must decide whether the primary objective of the statute is to impede travel, whether it penalizes the exercise of the right to travel, and whether it actually deters travel. The State repeats its arguments that the statute does none of these. It objects to plaintiffs' reliance on earlier legislative proposals to show the purpose of this statute. It also argues that plaintiffs and various amici cannot rely on the Privileges and Immunities Clause because that clause applies only to treating nonresidents differently from residents.
The state also rejects the United States' position, arguing that the U. S. gives no reason for applying an intermediate level of scrutiny.
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.
CaseRuffin v. Quasim, No. C97-5767FDB (W. D. Wash., Nov. 25, 1998).
Relying upon Supreme Court cases beginning with Shapiro v. Thompson, the District Court grants plaintiff's motion for summary judgment.
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., Olympia, WA 98502-5412; Anne F. Ackenhausen, Perkins Cole LLP, 1201 Third Avenue, 40th Floor, Seattle, WA 98101-3099, cooperating attorneys with Northwest Women's Law Center.
Sojourner A. et al. v. New Jersey Dept. of Human Services, (N. J. Superior Ct., Chancery Div., Essex County).
This case, filed as a class action, challenges the New Jersey family cap provisions as contrary to state constitutional provisions guaranteeing equal protection and a right to privacy. Plaintiff's counsel reports that on October 1, the trial court denied the state's motion to dismiss and authorize plaintiffs to proceed with limited discovery. This means that the state was required to release a report on the Rutgers study of the policy. The report, which was released in early November, indicated that although the family cap had the effect of increasing abortion rates, it also decreased birth rates. The Governor has said she will not abandon the policy, although she had previously said she would reconsider it if it increased abortions. Legislation to repeal the family cap has been introduced in the state legislature. The state reportedly has requested leave to appeal the denial of their motion to dismiss.
Plaintiffs' attorneys: Lenora Lapidus, et al., American Civil Liberties Union of New Jersey, 2 Washington Place, Newark, NJ 07102, tel. 201-642-2086; Martha Davis, et al., NOW Legal Defense and Education Fund, 99 Hudson Street, New York, NY 10013, tel. 212-925-6635; Lawrence Lustberg et al., Crummy, Del Deo, Dolan, Griffinger, & Vecchione, One Riverfront Plaza, Newark, NJ 07102, tel. 201-596-4500.
Cox. v. Davis, Civil Action No. IP 98-0342-C H/G (S.D. Ind., July 14, 1998) (Order Approving and Adopting Stipulation to Settlement Agreement).
The court has approved and adopted the parties' settlement in this case which challenged the state's failure to provide adequate notice to certain TANF recipients. The case was filed as a class action challenge to the state's failure to inform TANF recipients who "receive" a $0 cash grant that under state law each month of $0 assistance counts toward the 24 month time limit and that they have an option to withdraw from TANF. Before the settlement agreement, plaintiff withdrew her motion for class certification. The settlement included the defendant's agreement to 1) include in all notices informing individuals that their monthly grant is $0 language explaining that months of $0 assistance count for time limit purposes and the option to withdraw; and 2) send a formal administrative letter explaining the new notices to county welfare offices. Plaintiff agreed to dismissal of the complaint without prejudice upon defendant's compliance. This case was previously reported in the May 1998 Welfare Bulletin.
Plaintiffs' attorneys: Jacquelyn E. Bowie and Kenneth J. Falk, Indiana Civil Liberties Union, 1031 East Washington Street, Indianapolis, IN 46202, tel. 317-635-4059, email: indclu@aol.com.
Martin v. Davis, Civil Action No. IP98-0333 (S.D. Ind., May 19, 1998) (Order Approving and Adopting Stipulation to Settlement and Dismissal Without Prejudice).
The court has approved and adopted the parties' settlement in this case challenging the Marion County Welfare Department's failure to supply and/or accept applications for Food Stamps, Medicaid, or TANF from individuals who had previously applied for such assistance and those with a pending application for another program. The settlement requires the defendant to post conspicuous notices in the county welfare offices regarding the right to apply, distribute a memorandum to county offices explaining the requirement to accept applications, and update manuals as necessary to emphasize the right to apply. Plaintiff withdrew a class certification motion before reaching the settlement. The settlement terms included dismissal of the case without prejudice. This case was previously reported in the May 1998 Welfare Bulletin. Plaintiffs' attorneys: Jacquelyn E. Bowie and Kenneth J. Falk, Indiana Civil Liberties Union, 1031 East Washington Street, Indianapolis, IN 46202, tel. 317-635-4059, email: indclu@aol.com.
Cole v. Goldsmith, Cause No. IP97-1278-C-M/S (S.D. Ind., Mar. 8, 1998) (Judgment).
According to plaintiff's counsel this case challenged the Indianapolis Mayor's failure to designate an impartial hearing officer for the poor relief (general assistance) program and the hearing officer's failure to issue adequate denial notices. The settlement includes a requirement that all hearing officers follow applicable state statutes and permanently enjoins the defendant from appointing a specifically named individual as a hearing officer. Plaintiff's attorney reports that defendant has changed the denial notices so that they are legally adequate.
Plaintiffs' attorneys: Jacquelyn E. Bowie and Kenneth J. Falk, Indiana Civil Liberties Union, 1031 East Washington Street, Indianapolis, IN 46202, tel. 317-635-4059, email: indclu@aol.com.