Opposition — Miller v. United States

MLGiiveD

SEP Q cy?

IN THE SUPREME COURT OF TH

CrRICE OF THE CLP ny

UNITED STATES SUPRI EK ooag, fh

October Term, 1977

NO. 76-1523

DAVID B. SWOAP, Director of the State

Department of Benefit Payments, Petitioner,

vs.

MARGUARITA GARCIA and PALMIDA CASTANON, Respondents.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT

OF CERTIORARI TO THE SUPREME COURT OF THE

STATE OF CALIFORNIA

PHILIP L. GOAR

DANIEL M. LUEVANO

JOHN E. McDERMOTT

DOROTHY T. LANG

Western Center on Law & Poverty

3535 West Sixth Street

Los Angeles, California 90020

Telephone: (213) 487-7211

WARREN D. WEINSTEIN

MARSHA JONES

Legal Aid Foundation of

Long Beach

363 West 6th Street

San Pedro, California 90731

Telephone: (213) 831-0855

Attorneys for Respondents

SUBJECT INDEX

BRIEF IN OPPOSITION TO PETITION FOR A WRIT

OF CERTIORARI TO THE SUPREME COURT OF

THE STATE OF CALIFORNIA. . .. +. + «© «© « «

OPINION BELOW . *. . . . . . . 7 7 . . . . .

STATEMENT OF THE CASE. . « « « «© © © «© © @ «

REASONS FOR DENYING THE PETITION . .... -

A. THERE ARE INDEPENDENT AND ADEQUATE

STATE GROUNDS FOR THE JUDGMENT .

1. CALIFORNIA'S OVERPAYMENT STATUTE,

WELFARE AND INSTITUTIONS CODE

SECTION 11004, PROVIDED AN

INDEPENDENT AND ADEQUATE STATE

GROUND . . -© «© «© © © «© © « «

2. THE CALIFORNIA PAYMENT STATUTE

PROVIDED AN INDEPENDENT AND

ADEQUATE STATE GROUND. ... .

B. THE RULE THAT A STATE MAY CONSIDER

ONLY INCOME AND RESOURCES ACTUALLY

AVAILABLE IS NOT A NOVEL ONE...

CONCLUS I ON . * . dl . . . . *. * . . * . .

Page

ll

14

TABLE OF AUTHORITIES CITED

Cases-California

Garcia v. Swoap, 63 Cal. App. 3d 903, 134

Cal. Rptr. 137 (1976) . . . . . . . . . .

Oliva v. Swoap, 59 Cal. App. 3d 130, 130

Cal. Rptr. 411 (1976) . . «© «© «© «© w© @ «

Webb v. Swoap, 40 Cal. App. 3d 191, 114

Cal. Rptr. 897 (1974) ... «+ «© © « « «@

Cases-Federal

Adams v. Russell, 229 U.S. 353 (1913)...

Carleson v. Remillard, 406 U.S. £98 (1972)

Department of Mental Hygiene v. Kirchner,

380 U.S. 194 (1965) . . . . . * 7 - . .

De Laussure v. Gaillard, 127 U.S. 216

(1888) . 7 . . . . . . . . . a - . . .

Dixon V. Duffy, 344 U.S. 143 (1952)...

Fox Film Corp v. Muller, 296 U.S. 207

(1935) . 7 . . . . . . . >. . i . . .* . >.

Gilliard v. Craig, 409 U.S. 807 (1972) ..

Hagans v. Lavine, 409 U.S. 528(1974).. .

Herb v. Pitcairn, 324 U.S. 117 (1945)...

Jankovich v. Indiana Toll Road ~-

Commission, 379 U.S. 487 (1965). ....

Johnson v. Risk, 137 U.S. 300 (1890) . .«.

King v. Smith, 392 U.S. 309 (1968) ... .

Klinger v. Missouri, 13 Wall. 257 (1872)

Lewis v. Martin, 397 U.S. 552 (1970)...

Lynch v. New York, 293 U.S. 52 (1934)...

Minnesota v. National Tea Co., 309 U.S.

Sen anwpeep ec cece ese ee eo eo ee ele

NWRO v. Mathews, 533 F. 2d 637 (D.C.

Cir. 1976) . ad . . . . . . . . . . . . .

NWRO v. Weinberger, 377 F. Supp. 861

(D.C.D.C. 1974) . . . . - - . . 7 .

ii

Pages

1,2,4,8,9

5,8

10

ll

11

12,13

4,10,11

10

10

9,12

12

Pages

Miscellaneous

Parker v. North Carolina, 397 U.S.

Oe CAetele 0 2 0 6 seeeee sees 4 Handbook of Public Assistance Administration

Section 3131(5) (1940) (Department of Health,

Philbrook v. Glodgett, 421 U.S. 707 Education and Welfare). . . .. + «6 « «= « «

0.) ) ) rrr or i oe ‘a ie a ll

Shea v. Vialpando, 416 U.S. 251 (1974)... . 11,12 Index To Appendices

Townsend v. Swank, 404 U.S. 282 (1971)... . 11,12 Appendix A. Letter from David Hurwitz,

Department of Health, Education and

Van Lare v. Hurley, 421 U.S. 338 (1975). . 1l Welfare (3-16-77)

Wood Mowing Machine Co. v. Skinner,

139 U.S. 293 (1891) jee 6 6 6 6 6 8 6 6 10

Statutes-California

Welfare and Institutions Code Section 11004... 4,5,8

Welfare and Institutions Code Section 11004(e). 6.728eha

Welfare and Institutions Code Section 11450... 4,7

Welfare and Institutions Code Section 11450(a). 9,11

Welfare and Institutions Code Section 11452... 7

Welfare and Institutions Code Section 11456 3

Labor Code Section 204. a a oe a a a oe ee oe 3

Statutes-Federal

United States Code, Title 42, Sec. 600 et seq. . 2

United States Code, Title 42, Sec. 602(a)(7).. . 9,11,12

Regulations-California

Eligibility and Assistance Standards

Manual Section 42-303. . . on a a a 7

Eligibility and Assistance Standards

Manual Section 44-212.2 .... a ae oe ae 7

Eligibility and Assistance Standards

Manual Section 44-315.4ll.. . ee @ © & & 7

Eligibility and Assistance Standards

Manual Section 44-315.6 . . . «© « «© «© «© «© «© « « 2

Regulations-Federal

45 Code of Federal Regulations, Sec. 233.20

BEPEEOCEERng ow eee eee eanvnee eee ee e 9

45 Code of Federal Regulations, Sec. 233.20

OT > TC) .. a ae ae ae ee ee a ee ee ll

45 Code of Federal Regulations, Sec. 233.20

T\Ve TCT) Pe ee ee ee ee a ee ee ee 4

45 Code of Federal Regulations, Sec. 233.20

TSS TERT | ee a a a a a a ee ee ee 5

45 Code of Federal Regulations, Sec. 233.20

fa) (2) (4) (A) (A). - « ew we we we ec eo wo we we we 8 8 6

45 Code of Federal Regulations, Sec. 233.20

(a) (12) (4) (A) (2). - «© © ew we ew eo wo wo ew ew ew ew 8 6

45 Code of Federal Regulations, Sec. 233.20

(a) (12) (4) (C) (4) (£) . © © w we wow ew we we wo ew ew 5,6,7 :

iv

iii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1977

NO. 76-1523

DAVID B. SWOAP, Director of the State

Department of Benefit Payments, Petitioner,

vs.

MARGUARITA GARCIA and PALMIDA CASTANON, Respondents.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT

OF CERTIORARI TO THE SUPREME COURT OF THE

STATE OF CALIFORNIA

This Brief in Opposition to the Petition for a Writ of

Certiorari to the Supreme Court of the State of California

is filed on behalf of Marguarita Garcia, Palmida Castanon

and the class they represent.

OPINION BELOW

The opinion of the Court of Appeal is reported at

63 Cal. App. 3d 903, 134 Cal. Rptr. 137 (1976).

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STATEMENT OF THE CASE

Respondents Garcia and Castanon filed suit in the Los

Angeles County Superior Court seeking declaratory relief and to

enjoin Petitioners’ use of the Prior Month Budgeting system (pmp) 2/

to compute the amount of the grant for Aid to Families with

/

Dependent Children (AFDC) 2 - The PMB system operates by calcula-

ting the AFDC grant on the basis of net nonexempt income received

3/

two months prior to actual paynent—.

To illustrate, Mrs. Garcia was receiving AFDC in the

amount of $355 per month. This was the sole income for Mrs.

Garcia and her four children until June 1974 when her husband

began to give her $200 per month in child support. She promptly

reported the payments to her caseworker and spent the money on

past due bills. In August, her monthly AFDC grant was reduced

to $155 to reflect the $200 child support payment made in June.

However, her husband had ceased child support payments after his

July payment. Thus, Mrs. Garcia's sole income for herself and

four children in June and July was $155 from reduced AFDC

grants.

Mrs. Castanon was receiving $336 in AFDC in July, 1974

because her husband was unemployed except for sporadic work

which in July amounted to about $250 in nonexempt income. This

income was promptly reported. Mr. Castanon used the $250 for

his father's funeral and personal needs. In August he left the

family and did not return. In September, Mrs. Castanon and her

child received an AFDC grant of $86 as their sole income.

Prior to PMB the concurrent method of budgeting was

| Eligibility and Assistance Standards (EAS) Manual Section

4-315.6.

2/ 42 U.S.C. section 600 et seq.

3/ Garcia v. Swoap, 63 Cal. App. 3d 903, 906, 134 Cal. Rptr. 137,

139 (1976).

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used in which the grant was calculated on the basis of an estimate

of nonexempt income from the month immediately preceding the

payment. Corrections for fluctuating income were made on the

second payment in the month to the extent possible/’. To the

extent it was not possible to correct for fluctuations in the

same month, an overpayment or underpayment was assessed.

To illustrate, assume the concurrent system had been

used to compute Respondents’ grants. When Mrs. Garcia received

her support payment in June she promptly reported it to her

caseworker. It was too late to reflect the payment in the

second July payment; therefore, Mrs. Garcia would have received

a grant of $355 and a $200 overpayment would have been assessed.

The August grant would then be estimated on the basis of July

and Mrs. Garcia would have received a grant of $155 and $200 in

support for a total of $355. In August, when her support payment

was not made, her second payment would be increased to assure

her a grant of $3552/.

In the same manner, to the maximum extent possible, Mr.

Castanon's earnings in July would have been adjusted in the second

July payment. If that was not possible, an overpayment or under-

payment would be assessed. When Mr. Castanon left the home in

August, an underpayment would be assessed and Mrs. Castanon

would have received an immediate check in August °/ . PMB was

47 California law requires grants be paid on the lst and 15th of

@ach month. See: Welfare and Institutions Code Section 11456;

Labor Code Section 204. All future references to California

statutes are to Welfare and Institutions Code.

5/ If the caseworker had waited until the end of the month to be

Sure Mrs. Garcia did not receive the support payments, an under-

payment of $200 would have been assessed in September.

6/ Had Mr. Castanon left earlier in the month, the second payment

ould have been raised to insure Mrs. Castanon and her child the

full dollar amount to which she was entitled.

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specifically implemented to avoid these overpayment and underpay-

ment situations as Petitioner admits’.

Respondents contended in the court of appeal that PMB

violated both state and federal law. Specifically, they contended

that the system was contrary to Welfare and Institutions Code

Section 11450 and Welfare and Institutions Code Section 11004 and

45 C.F.R. §233.20(a) (3) (ii) (D)8/.

The California Court of Appeal, Second District, reversed.

The California Supreme Court denied a hearing in the case, and

Petitioner then filed his Petition for Writ of Certiorari in this

Court.

REASONS FOR DENYING THE PETITION

There are independent and adequate state grounds on which

the judgment rests, and the decision does not present a substantial

federal question not previously determined by the Court.

A. THERE ARE INDEPENDENT AND ADEQUATE

STATE GROUNDS FOR THE JUDGMENT

It is well established that this Court will not review

a judgment of a state court if that judgment rests on independent

and adequate state grounds?’ . This rule has been interpreted

as "...not a mere technical rule nor a rule of... [the Court's]

»10/

convenience. “Tt is found in the partition of power between

state and federal judicial systems and in the limitations of

.--[this court's] jurisdiction. +/ The California Court of

q/ See: Petition for Writ of Certiorari, p. 5-6.

8/ Garcia v. Swoap, supra, 63 Cal. App. 3d at 908, 134 Cal. Rptr.

at 140.

9/ Fox Film Corp v.- Muller, 296 U.S. 207 (1935); Minnesota Vv.

National Tea Co., 309 U.S. 551 (1940); Parker v. North Carolina,

397 U.S. 790 (1970).

10/ Minnesota v. National Te. Co., supra, at $57.

Tl/ Herb. v. Pitcairn, 324 U.S. 117, l (1945)

7///

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Appeal held that the PMB system violated both state and federal

2} law. Where both state and federal grounds were urged in the

state court, it must appeal on the record, that any federal

4 ground presented to the state court was the sole basis for the

12/

Court.—

1. CALIFORNIA'S OVERPAYMENT STATUTE,

WELFARE AND INSTITUTIONS CODE SECTION

11004, PROVIDED AN INDEPENDENT AND

ADEQUATE STATE GROUND.

States which choose to become part of the AFDC program

and use matching federal funds must conform to the requirements

of the Social Security Act and the federal regulations promulgated

by HEW. The states can adopt plans which are more liberal than

the federal scheme but they may not be more restrictive.22/ To

the extent that a state does adopt more liberal standards, it

becomes a matter of state, not federal, law.

The requirement that states recoup overpayments is not

mandatory under federal law. +4/ When California elected to collect over-

payments, federal regulations provided for certain safeguards for

15/

recipients.— If California's overpayment collection statutes do

Inot allow as great a reduction of grants as federal regulations

ldo, then California's overpayment scheme is solely a matter of

jstate law. If Petitioner's regulations violate that scheme,

ll127 Department of Mental Hygiene of California v. Kirchner, 380

U.S. 194 (1965).

113/ King v. Smith, 392 U.S. 309 (1968), and see note 39.

T4/ 45 C.F.R. §233.20(a) (12) (i) (A) provides that states may

recoup overpayments. See also: Webb v. Swoap, 40 Cal. App. 3d

191, 114 Cal. Rptr. 897, (1974); Oliva v. Swoap, 59 Cal. App. 3d

130, 130 Cal. Rptr. 411 (1976)

115/ 45 C.F.R. §233.20(a) (12) (i) (C) (4) (f£).

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32

the violation of state law provides an independent and

adequate state ground, as this Court does not sit to determine

matters of state Law, 16/

The California scheme of overpayment recoupment is

substantially different from the federally required safeguards.

Under federal regulations a state can only recoup overpayments if

income and resources are currently available in the amount of the

reduction. +// However, if a willful withholding of information by

a recipient occurs, the state may reduce the overpayment

irrespective of current income and resources , +8/ but the reduction

can not, on a case-by-case determination, cause undue hardship. +2/

Under the California scheme, the Petitioner can reduce the

grant only to the extent current income and resources are available.

But even if information is withheld willfully, Petitioner can

reduce the grant only to the extent that there are resources and

income available to meet the current needs of the chi1a.29/ The

I6/7 Dixon v. Duffy, 344 U.S. 143 (1952)

17/ 45 C.F.R. S235. 20(a) (12) (i) (A) (2)

18/ 45 C.F.R. §233.20(a) (12) (i) (A) (2)

19/ 45 C.F.R. §233.20(a) (12) (i) (C) (4) (£)

20/ Section 11004(e) provides:

“(e) Current grants may be reduced because of prior over-

payments only if the recipient has income or resources available

in the amount by which the county proposes to reduce payment

except; that where there is evidence which clearly establishes

that a recipient willfully withheld information about his income

or resources, such income or resources may be considered in the

determination of need to reduce the amount of the grant in

current or future periods. Prior to effecting any reduction of

current grants to recover prior overpayments, the recipient shall

be advised of the proposed reduction and of his entitlement to a

hearing on the propriety of the reduction. In no event shall

the grant to a needy child be reduced unless the parents or

other responsible persons have sufficient available resources or

income to meet the current needs of the needy child according

to the department standard during the period of reduction."

////

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////

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9 | ourrent needs of the children are called the Basic Standard of 1 "In this respect, PMB also avoids the

@\| Adequate Care (BSAC) and are set forth in the statute subject to 2 specific recoupment limitations set

3\|cost of living revision by Petitioner. 2// The BSAC is a larger % forth in Welfare and Institutions

4||} amount than the Maximum Aid Payment (MAP) which is the amount of 4 Code section 11004,....Subdivision (e)

§ ||} the grant payment. 22/ Therefore, the amount of any reduction in 5 of section 11004 is clearly worded to

6||\the grant level (MAP) as required by federal regulation is 6 protect the children in these

97 \|\necessarily less than the “current needs of the child." (BSAC). 7 situations....However, as PMB is

- Under section 11004(e), when no other income or resource 8 presently applied, a prior ‘overpayment’

g iis currently available, the maximum overpayment collectable from 9 occurs under these recoupment pro-

10 ||Respondent, even if she had willfully withheld information, would 10 visions when income is received in a

11 be $10 per month; the difference between the BSAC for her children, ll particular month but is not reflected

12 |$389, and the MAP for her family, $399. 12 in the assistance grant for that

13 Had Respondent Castanon willfully failed to report her 13 month. (See Oliva v. Swoap, 59 Cal.

14 ||husband's income, the maximum collectable from her in the absence 14 App. 3d 130, 137, 130 Cal. Rptr. 411.)

15 lof other currently available income or resources would have been 15 In the guise of ‘retrospectively

16 ||$82 per month; $237, her family's MAP, less $155, her child's 16 applied assistance payments,’ PMB

17 psac. 23/ Under federal law the state could reduce the grant 17 provides for the same sort of correction

18 payment regardless of available income or resources if the 18 for ‘overpayment’ in instances of

19 ireduction did not cause “undue hardship. "24/ 19 sporadic family income, but without

20 Respondents' grants were reduced below the level of the 20 the concomitant protective feature

21 licurrent needs of their children (BSAC) by PMB, even though they 21 which assures that the child's current

22 ||had no currently available income or resources to meet those needs, 22 | needs will not go wanting. "2>/

23 land in spite of the fact that they did not willfully withhold 23 This is exactly the situation where an independent and

24 ||information. This being so, the Court of Appeals held: 24 |ladequate state ground was meant to preclude review. As stated in

25 1217 Section 11452; EAS Manual §§ 42-303; 44-212.2. The BSAC 25 ||Department of Mental Hygiene of California v. Kirchner: 29/

for Mrs. Garcia and her children at the time of appeal was $449.

26 ||22/ Section 11450; EAS Manual §44-315.411. The MAP for Mrs. 26 “This Court is always wary of assuming

Garcia and her children at the time of the appeal was $399.

27 \23/ These examples are based on MAP and BSAC at the time of 27 jurisdiction of a case from a state

28 are C.F.R. 233.20(a) (12) (i) (C) (4) (£) 28 court unless it is plain that a

29 //// 29 federal question is necessarily pre-

30 | //// 30 ||257 Garcia v. Swoap, Supra, 63 Cal. App. 3d at 911-912, 134 Cal.

Rptr. at 142.

31 //// 31 }26/ 380 U.S. 194, 197 (1964)

32 |//// 32 \////

sented, and the party seeking review

here must show that we have juris-

diction of the case. Were we to

assume that the federal question was

the basis for the decision below, it

is clear that the California Supreme

Court, either on remand or in another

case presenting the same issues,

could inform us that its opinion was

in fact based, at least in part, on

the California [law], thus leaving

the result untouched by whatever

conclusions this Court might have

reached on the merits of the federal

u27/

question. (notes omitted)

2. THE CALIFORNIA PAYMENT STATUTE

PROVIDED AN INDEPENDENT AND

ADEQUATE STATE GROUND

The California statute provides for "...each needy

family...{to] be paid...an amount of aid each month which when

added to his income...is equal to the sums... {provided by the

28/

The sum referred to is the amount of the grant pay~-

interpreted to preclude PMB regardless of the federal law on the

ubject..22/

The California Court of Appeal did not specifically rely

jon the state statute. However, the point was briefed and argued

before the court 30/ State courts do not sharply separate an

i2// Id.

28/ Section 11450(a).

5/ See: 42 U.S.C. 602(a)(7); 45 C.F.R. 233.20(a) (3) (ii); NWRO v.

Mathews, 533 F. 2d 637 (D.C. Cir.

Opposition to Petition for Writ of Certiorari, infra.

B0/ Garcia v. Swoap, supra, 63 Cal. App. 3d at 908,

1976), and Respondents’ Brief in

134 Cal. Rptr.-

adjudication of both state and federal questions when reaching a

31/

judgment in a case.— Nonetheless, this Court has, in the past,

32/

declined to take such cases.— It is Respondents" contention that

the state and federal grounds are ..not so interwoven that [the

Court is] unable to conclude that the judgment rests upon an

independent interpretation of state law. "33/

Even if the Court concludes that there are reasonable

grounds to believe that the judgment may rest solely on the

federal question, there is authority to deny a review:

"But what to do with cases in which

the record is ambiguous but presents

reasonable grounds to believe that

the judgment may rest on decision

of a federal question has long vexed

the Court. In many cases the answer

has been a strict adherence to the

rule that it must affirmatively

appear that the federal question was

decided and that its decision was

essential to disposition of the case;

and that where it is not clear whether

the judgment rests on a federal ground

or an adequate state one, this Court

will not review. (Citations omitted)

"In other cases where justice seemed

to require it, for example because of

3I7 See e.g-: Herb v. Pitcairn, 324 U.S. 117 (1945).

32/ Klinger v. Missouri, 13 Wall. 257 (1872); De Saussure Vv.

Gaillard, 12? U.S. 216 (1888); Johnson v. Risk, 137 U.S. 300

(1890); Wood Mowin Machine Co. v. Skinner, 139 U.S. 293 (1891);

Adams v. Russell, 229 U.S. 353 (1913); Lynch v. New York, 293 U.S.

52 (1934).

33/ Jankovich v. Indiana Toll Road Commission, 379 U.S. 487,

492 (1965).

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-10-

|

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supervening events, the Court has

said that to set aside the judgment

and remand the case to the state

court for further consideration is

not to review, in any proper sense

of the term, the decision of the

state court. "24/

In view of the wording of Section 11450(a) and Section 11004(e),

justice does not require this Court to set aside the judgment and

remand the case. The references to state statutes as argued above

are sufficient to justify the denial of the Writ.

B. THE RULE THAT A STATE MAY CONSIDER

ONLY INCOME AND RESOURCES ACTUALLY

AVAILABLE IS NOT A NOVEL ONE.

The federal question presented concurrently to the state

court is founded in the federal mandate that the states "shall,

in determining need,...take into consideration any other income

and resources” of recipients.2>/ This mandates that only actual

income currently available be considered. 29/ The policy is long-

standing, 2’ during which time numerous amendments of Title IV of

the Social Security Act have taken place. This Court has held

that the policy clearly comports with the act28/ and has struck

down numerous state statutes or regulations violating the "actually

and currently available standard" as violative of The Supremacy

Clause of the United States Constitution. 22/ Since the currently

347 Herb v. Pitcairn, Supra, .24 U.S. at 126.

35/ 42 U.S.C. 602(a) (7

36/ 45 C.P.R. 233.20(a) (3) (ii) (C).

37/ The policy originated in HEW's Handbook of Public Assistance

dministration §3131(5) (1940).

38/ King v. Smith, supra.

39/ Lewis v. Martin, 397 U.S. 552 (1970); Townsend v. Swank,

404 U.S. 282 (1971); Carleson v. Remillard, 406 U.S. 598 (1972);

illiard v. Craig, 409 U.S. 807 (1972); Shea v. Vialpando, 416

~S. 251 (1974); Van Lare v. Hurley, 421 U.S. 338 (1975);

hilbrook v. Glodgett, 421 U.S. 707 (1975).

///

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10

11

12

13

14

15

16

17

18

19

20

21

22

25

24

25

26

27

28

29

30

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available standard rests upon 42 U.S.C. 602(a) (7), Overpayment

regulations must also consider currently available income, at least

where no withholding of information by the recipient occurred. 42/

Therefore, the court below correctly followed a long line of

federal decisions.

Petitioner alleges a low-level official of the Department

of Health, Education and Welfare (HEW) had at one time approved

his PMB scheme and argues that by holding his scheme invalid, an

important function of HEW has been abrogated. This argument over-

looks the fact that under our system of government, the final inter-

pretation of the Constitution and statutes of the United States is

with the judicial branch, not the executive. While the agency's

interpretation may be entitled to great weight, the opinion of a

low-level official is not. Even had HEW issued an opinion, the

principal:

"...applies only where the relevant

statutory language is unclear or

susceptible of differing inter-_

pretations. [citations omitted]

In view of the literal requirements

of §402(a)(7) [42 U.S.C. 602(a) (7)]

which accord with the federal policy

underlying its enactment, [the Court]

need not look to agency practice....°22/

dditionally HEW has not been totally consistent in applying

federal standards itself. Cf: Shea v. Vialpando , 42/ Hagans Vv.

vine ,42/ Letter from David Hurwitz dated March 16, 1977. Appendix

. HEW has on two occasions proposed federal PMB regulations and

(D.c. D.C. 1974).

/ Shea v. Vialpando, supra, 416 U.S. at 262,n. ll; See also

ownsend v. Swank, supra, 404 U.S. at 286, n. 3.

07 NWRO v. Mathews, supra; NWRO v. Weinberger, 377 F. Supp. 861

1

27. 416 U.S. 251 (1974)

3/ 415 U.S. 528, 533 n. 4 (1974).

//

-12-

31

32

on both occasions the agency chose to withdraw its proposed

regulations.

Petitioner further argues that allowing state courts to

interpret federal statutes and the Constitution and invalidate

Petitioner's or HEW's efforts at welfare reform, will somehow

undermine the relation between the federal government and the

This ignores the fact that state courts as well as

states.

federal ones are charged with enforcing the United States Consti-

tution44/

and are bound by it to strike down state regulations

which are inconsistent with federal law. 42/ Petitioner's concern

with welfare reform is commendable, but he must recognize that

his ability to carry out change must be 2 limited one within the

framework set out by the state legislature or Congress. Sweeping

changes such as the one contemplated here are best left to

legislatures which are directly responsible to the electorate.

Petitioner has offered no reason why the question presented here

in any way differs from King v. Smith and its progeny. Therefore,

— is no novel question presented, and this Court should deny

the Petition for Writ of Certiorari.

447 See: Mr. Justice Rehnquist's dissent in Hagans V- Lavine,

Supra, 415 U.S. at 553.

45/ See note 34 supra.

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CONCLUSION

For the foregoing reasons, a Writ of Certiorari to the

California Supreme Court should be denied.

1977 Respectfully submitted,

DATED: September 8,

Western Center on Law and Poverty,

Inc.

Philip L. Goar

Dorothy T. Lang

Legal Aid Foundation of Long Beach

n D.

Weinstein

arren D. Weinstein.

Attorneys for Respondents

-14-

DZIPARTMENT OF HEALTH ECUC’. TION. AND V/ELFARE

MAR 1S

Mr. Kevin M. Aslanian

President

Welfare Recipients League, Inc.

1505 East Santa Clara Street

San Jose, California 95116

Dear Vr. fslanian:

Secretary Califano has asked me to thank you for your letter of

February 22 concerning administration of the Aid to Families with

Dependent Children (AFOC) program in California.

We are aware of the recent difficulties which have arisen in the

California welfare program regarding the conformity of California

welfare plans with certain provisions of Federal law. Procedures

have been instituted for correction of State plan provisions to

comply with Federal law and regulations, and the California Ap-

pellate Court cecision in Garcia v. Swoap (1976) ,63.C.A. 3d 903.

We are taking the liberty of forwarding your letter to Mr. Charles W.

Goady, Regional Commissioner in the Department's San Francisco Regional

Office at 50 Fulton Street, Federal Office Building, San Francisco,

California 94102, with the request that he advise you on the current

status of this issue.

We appreciate your bringing this matter to our attention.

Sincerely,

David S. Hurwitz

Acting Commissioner

Assistance Payments Administration

cc: Regional Commissioner, Region IX

Appendix A

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PROOF OF SERVICE BY MAIL

STATE OF CALIFORNIA )

ss.

COUNTY OF LOS ANGELES )

I am a citizen of the United States and a resident of

the County aforesaid, I am over the age of eighteen years and

not a party to the within action; my business address is:

3535 West Sixth Street, Los Angeles, California 90020. On

September 8, 1977 I served the within MOTION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS AND AFFIDAVITS IN SUPPORT THEREOF;

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF CALIFORNIA on Petitioners

in said action, by placing a true copy thereof enclosed in a

sealed envelope with postage thereon fully prepaid, in the

United States mail at Los Angeles, California, addressed

as follows:

EVELLE J. YOUNGER, Attorney General of

the State of California

N. EUGENE HILL, Assistant Attorney General

EDMUND E. WHITE, Deputy Attorney General

JEROLD A. PROD, Deputy Attorney General

555 Capitol Mall, Suite 350

Sacramento, California 95814

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on September 8, 1977, at Los Angeles,

bei partial |

CARLA FRANCINE TESTI

California.