Anderson v. Roe, No. 98-97 (U.S. Sup. Ct.) petition for certiorari granted 1998 WL 407156, 67 U.S.L.W. 3083 (Sept. 29, 1998).
The United States Supreme Court has granted California's petition for a writ of certiorari in Roe v. Anderson, 134 F.3d 1400 (9th Cir. 1998), which held California's policy of paying lower CalWorks benefits to persons who have been in the state less than a year unconstitutional. The state's petition was supported by three amicus briefs. The Attorney Generals of 16 states, including those that have lost their cases in lower courts (Illinois, Minnesota, New York, Rhode Island, and Washington), as well as others that fear becoming "welfare magnets" (including Florida, Georgia, Mississippi, Nevada, and North Carolina) urged the Supreme Court to take the case in view of the alleged difficulties the courts below are having. Another brief was filed by the Washington Legal Foundation on behalf of a number of California legislators defending their action. A third brief was filed by the Pacific Legal Foundation. The respondents (the plaintiffs below) had responded that the case is not worthy of Supreme Court review in light of the fact that the lower courts have all held such provisions unconstitutional.
Respondents' attorneys: Mark Rosenbaum et al., ACLU Foundation of Southern California,
1616 Beverly Blvd., Los Angeles, CA 90026, tel. 213-977-9500; Martha Davis et al., NOW
Legal Defense & Education Fund (NYC); ACLU Foundation of San Diego and Imperial
Counties; ACLU Foundation of Northern California.
Maldonado v. Houstoun, F.3d 1998 WL 569359 (3d Cir., Sept. 9, 1998).
The court unanimously holds that Pennsylvania's durational residency provision is unconstitutional. The Pennsylvania statute provides that persons who have resided in the state less than a year will receive benefits at the level paid by the state where they previously resided, if that level is lower than the Pennsylvania level. The court noted that "the law with respect to the constitutional implications of the right to travel is unsettled and in need of clarification." It found that the plaintiffs here had clearly been penalized for exercising their constitutional right to travel, since they were treated less favorably than longer-term residents of the state. The court below had found that there was not a penalty, since individuals were treated the same as persons in the state in which they had previously resided. The court then went on to reject justifications provided by the state, noting that there was not even a rational relationship to the purported purpose of encouraging employment.
Plaintiffs' attorneys: Jonathan Stein and Richard Weishaupt of Community Legal Services, tel. 215-981 3700; Susan Frietsche and Elizabeth Shapiro of the Women's Law Project, tel. 215-928-9801; Selena Fitanides of the ACLU, tel. 215-592-1513; and pro bono attorneys.
Attorneys for amici curiae in support of Plaintiffs: Paul M. Dodyk and Victor Caldwell
of Cravath, Swaine & Moore; Martha Davis and Sherry Leiwant of the NOW Legal Defense
and Education Fund, tel. 212-925-6635; and Henry Freedman of the Welfare Law Center, tel.
212-633-6967.
Grijalva v. Shalala, No. 97-15877 (9th Cir., August 12, 1998).
In this nationwide class action the Court of Appeals upheld the decision of the Arizona District Court holding the appeal procedures in HMO's providing medicare benefits to deny due process. First, the court found that the HMO's were engaged in state action. It then applied the three-pronged Mathews v. Eldridge balancing test. It concluded that the private interest in receiving medical care was great, and the risk of erroneous decisions was substantial in light of deficiencies in notices, stating "Inadequate notice renders the existence of an appeals process meaningless." The court then disposed of other arguments vigorously pressed by the Secretary of Health and Human Services, who had strongly opposed the injunction.
Plaintiffs' attorneys: Sally Hart, Center for Medicare Advocacy, 1730 East River Road,
Suite 107, Tucson, AZ 85718, tel. 520-577-1611, fax 520-577-0342, e-mail:
slyhart@azstarnet.com; Lenore Gerard, Legal Assistance to the Elderly, 1453 Mission
Street, Suite 500, San Francisco, CA 94103, tel. 415-861-0310; and Carol Jimenez, tel.
562-430-0239.
Brukhman v. Giuliani, 1998 WL 635655 ( N.Y. App. Div. 1st Dept. 1998).
New York State's intermediate appellate court vacated the class-wide preliminary injunction previously granted in this action and dismissed the complaint. In 1997, the trial court determined that plaintiffs, WEP workers assigned to various workfare assignments with City agencies and not-for-profit agencies, were entitled to have the number of hours of work to which they were assigned calculated by dividing the total cash grant and food stamps by the wage prevailing for the same or similar work performed by regular workers at the worksite.
In reversing the trial court, the Appellate Division held that a statutory amendment providing that workfare hours were to be calculated based on the minimum wage rather than the prevailing wage mooted plaintiffs' claims. The statutory change was part of the State's Welfare Reform Act of 1997. The Appellate Division rejected plaintiffs' constitutional Equal Protection and Due Process claims. In addition, the Appellate Division determined that WEP workers are not covered by a unique New York State constitutional provision which mandates the payment of the prevailing wage to persons performing public works.
Plaintiffs will appeal to challenge (1) the dismissal of plaintiffs' claim for retrospective relief for excess hours worked prior to the statutory amendment; (2) the holding that WEP workers are not public employees for wage calculation purpose; and (3) the holding that provisions of the New York State constitution do not bar using less than the prevailing wage to calculate WEP hours. CH #51,676.
Plaintiffs' attorneys: Marc Cohan of the Welfare Law Center, email: cohan@ welfarelaw. org; Richard Blum, The Legal Aid Society, 953 Southern Boulevard, Bronx, NY 10459-3428, tel. 718-991-4758; fax 718-842-2867; email: blum@legal-aid.org; Catherine Ruckelshaus and James Williams, National Employment Law Project, 55 John Street, 7th Floor, New York, NY 10038-3044, tel. 212-285-3025, fax 212-285-3044; email: cruckelshaus@ nelp.org and jwilliams@nelp.org; and Davis Polk & Wardwell, New York City.
Attorney for Amici: Richard J. Ferreri, 125 Barclay Street, New York, NY 10007.
Capers v. Giuliani, 1998 WL 596625 (N.Y. App. Div. 1st Dept. 1998).
New York State's intermediate appellate court vacated the class-wide preliminary injunction and dismissed the complaint. In this case, the trial court preliminarily enjoined New York City defendants from assigning WEP participants to outdoor tasks in the absence of training, provision of appropriate equipment and safety measures, or availability of toilets, potable water and wash-up facilities. The court also enjoined retaliation against WEP participants bringing grievances and directed defendants to expedite any administrative grievance proceeding commenced as a consequence of any violation of that injunction.
The Appellate Division reversal was based on a statutory change that occurred subsequent to the commencement of this action. In response to the preliminary injunction as well as to public outcry led by the workfare workers organizers, the state legislature, as part of the Welfare Reform Act of 1997, deemed workfare workers to be public employees for purposes of coverage of the state Public Employee Health and Safety Act. As a consequence, workfare workers are now entitled to utilize the same complaint and inspection mechanisms as are available to all public employees.
Plaintiffs will appeal the Appellate Division ruling. While the statutory change provides important protections to workfare workers experiencing unsafe working conditions after they have begun working, plaintiffs still seek to have affirmed so much of the trial court's order as requires City officials to determine that the worksite is safe prior to assignment. CH#51,717.
Plaintiffs' attorneys: Marc Cohan of the Welfare Law Center, email: cohan@ welfare.law.
org; James Williams, National Employment Law Project, 55 John Street, 7th Floor, New York,
NY 10038-3712, tel. 212-285-3085, fax 212-285-3044, email: jwilliams@nelp.org; and
Constance Carden and Matthew Schneider, New York Legal Assistance Group, 130 East 59th
Street, New York, NY 10022, tel. 212-750-0800, fax 212-750-0820.
Davila v. Hammons, Index No. 407163/96 (Sup.Ct. N.Y.Co., September 21, 1998).
The Court has granted an additional preliminary injunction in this case which challenges New York City's practice of assigning TANF recipients to unpaid work in the City's Work Experience Program ("WEP") without doing a thorough and objective assessment of whether education or training assignments would be more appropriate for the recipient. The additional injunction stays the City of New York from requiring class members attending two-year college programs to perform WEP until the City has conducted a full assessment of his/her educational background, work history, and supportive services needs and developed for each recipient an employment plan based on the assessment and, to the extent possible, the preferences of the recipient. The order also prohibits the City from sanctioning any recipient attending college for refusal to accept a WEP assignment until the assessment has been completed and an employment plan prepared. The City has appealed and the Appellate Court has temporarily refused to stay the enforcement of the second preliminary injunction. This case was last reported upon in the May 1997 Welfare Bulletin. CH # 51,713.
Plaintiffs' attorneys: Marc Cohan, Welfare Law Center; Christopher Lamb and Richard
Blum, The Legal Aid Society; and Davis Polk & Wardwell.
Ramos v. McIntire, Civil Action No. 98-2154E (Mass. Superior Court, Suffolk Cty., Aug. 25, 1998).
The court has denied class certification and preliminary relief in this challenge to the failure of the state's Employment Services Program to provide meaningful access to ESP programs for those TANF recipients with learning disabilities. All TANF recipients are eligible for ESP services, regardless of whether they are subject to the state's two year time limit on cash assistance. Plaintiffs' claims are based on the Americans With Disabilities Act and a state constitutional provision protecting those with handicaps from discrimination. Plaintiffs had sought a preliminary injunction ordering defendant to provide immediate appropriate placements to the named plaintiffs; make reasonable modifications to screen all interested TANF recipients for disabilities; set aside a portion of ESP resources for services for those with disabilities; and enjoin the December 1, 1998 termination (based on the state's TANF time limit) for learning disabled recipients until services are provided.
The court denied class certification on the ground that based on the current record plaintiffs had failed to meet the numerosity requirement. It rejected national studies and studies in other states concerning the number of learning disabled welfare recipients as insufficient to establish that there is a state wide class as well as legal services' staff affidavits. Plaintiffs' counsel reports that the defendant had not challenged numerosity. As to preliminary relief, the court concluded that named plaintiffs had not shown irreparable harm since one named plaintiff has received an exemption from the time limit based on disability and the second will not be subject to the time limit until March 2000. The court rejected the argument that denial of educational opportunities is immediate, irreparable harm, finding that state law does not require the agency to provide educational services to those who are eligible to participate in ESP but are not subject to the two-year time limit. The court indicated that plaintiffs' facts did not require it to address the question of whether the agency would have to provide these services if plaintiffs were subject to the time limit. This case was previously reported in the June 1998 Welfare Bulletin.
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.
Lazenby v. City of Villejo, No. CIV - S-97-1750WBS (E.D.Cal.).
This class action challenged an early morning raid by police, other law enforcement officials, and welfare fraud investigators at an apartment complex where targets of the raid were public assistance recipients who lived in the complex. According to plaintiffs, defendants had no basis to suspect that the targeted individuals had committed a crime. Defendants conducted searches of tenants' homes without their consent, invited the media to witness the raid and filmed parts of the raid. Plaintiffs' claims included those based on the Fourth and Fourteenth Amendments to the U.S. Constitution, federal Food Stamp law, state constitutional provisions regarding privacy and freedom from unreasonable searches, state statute, and tort law. According to a report from the Western Center on Law and Poverty, the court approved a consent decree on August 10, 1998 which provides that various defendant agencies will not participate in multi-agency, multi-unit raids in the future and that the one agency that wants to continue multi-unit operations will do so in a manner that respects individuals' constitutional and statutory rights. The consent decree includes, among other provisions, limits on the hours during which operations may be conducted and a requirement of consent before entry, and it provides that media will not be notified before future operations.
Plaintiffs' attorneys: Alan Schlosser, ACLU Foundation of Northern California, 1663
Mission St., Suite 460, San Francisco, CA 94103, tel. (415) 621-2493; Jodie Berger, Center
on Poverty Law and Economic Opportunity, 449 15th St., Suite 301, Oakland, CA 94612-2038,
tel. (510) 891-9794; Roxanne Polidora, Pillsbury Madison & Sutro LLP.
Friedl v. City of New York, et al., 97 Civ. 5453 (JSM) (S.D.N.Y.) (Memo of Law in Support of Motion to Amend Complaint and in Opposition to Motions to Dismiss).
Plaintiff alleges that revocation of his work-release from prison was based upon complaints by a runaway welfare caseworker to corrections officials that plaintiff had applied for public assistance. Plaintiff had applied for assistance because he could not sustain himself on his earnings as a messenger, and there was no provision in his conditions of work release against applying for public assistance. He appealed from the denial of his welfare application and was successful in his fair hearing. The local office responded by refusing to process his application and complaining to the corrections office, which revoked work release.
Plaintiff's attorney: William J. Rold, 500 Fifth Avenue, Suite 1205, New York NY 10110,
tel. 212-827-0202.
Cervantes v. Ekanger, Cause No. ADV 98 00052 (Montana 1st Jud. District, Lewis and Clark Cty., August 17, 1998)(Plaintiffs' summary judgment brief).
This case, brought as a class action, challenges the state's recovery of Food Stamp overpayments caused by administrative error which occurred before the August 22, 1996 passage of the federal PRA which provides for recovery. When the overpayments were first identified, plaintiffs were informed that no action would be taken and years went by until the agency notified them of recovery action in 1996 and 1997. Plaintiffs argue that the federal law cannot be given retroactive effect, that the agency cannot adopt rules with retroactive effect without legislative authorization, that the federal agency has in any event not issued rules and does not have authority to issue retroactive regulations, that instructions from the federal agency are not binding and are unclear, that the state constitution forbids state laws with retroactive effect; and that state law otherwise bars such recovery. Plaintiffs respond to defendant's affirmative defense based on the administrative statute of limitations by arguing that such limitation is tolled because defendant acted on the basis of an illegal, unpublished policy.
Plaintiffs' attorney: Russell A. LaVigne, Jr., People's Law Center, P.O. Box 526, Butte, MT 59703-0526, tel. (406) 782-6118.