Opposition — Chapman v. Houston Welfare Rights Organization

IN THE DEC 29 1977

SUPREME COURT OF THE UNITH OA, m_ ce

ee eenettn Race, Rance

OCTOBER TERM, 1977

* * *

NO. 22-719

* * *

JEROME D. CHAPMAN, COMMISSIONER

OF THE TEXAS DEPARTMENT OF HUMAN

RESOURCES, ET AL..,

V.

HOUSTON WELFARE RIGHTS

ORGANIZATION, ET AL.,

Respondents

Petitioners

* * *

OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI ON A DECISION OF THE

FIFTH CIRCUIT COURT OF APPEALS

ATTORNEYS FOR RESPONDENTS

Jeffrey J. Skarda

2912 Luell Street

Houston, Texas 77093

(713) 695-368%

John Williamson

Texas Rural Legal Aid

305 East Jackson, S. 122

Harlingen, Texas 78550

(512 ) 423-0319

SUBJECT INDEX

Page

OPPOSITION TO PETITION... .ccseccseeet

QUESTIONS PRESENTED FOR REVIEW......2

CONSTITUTIONAL AND OTHER PROVISIONS.3

STATEMENT OF THE CASE...cccccccccecct

ARGUMENT AGAINST GRANTING THE WRIT..8

(1)Jurisdiction exists under 28

CBs Bee ss6hesshcosesccsccsed

(2)There is no conflict with prior

decisions of this court on the

rer y rey ree Te ee TT Teer A

(3)There is no intrusion into

state discretion to set the stan-

dard of .,. 26666606 6666660066664

(A4)Respmdent's additional reasons

for opposing the writ...ceeeseeeel3

(4)Alternate jurisdiction under

ME G.BiG. SUPSSCS ce cccccecececeset®

(5)Obscurity of record given

attempt to aMend.ccccccccccseseeels

a

PROOF OF SERVICE. ccccccccccscecceeel®

INDEX OF AUTHORITIES

CASES: PAGES

Bondholder's Com'e v. Com'r of Internal

Revenue, 315 U.S. 189(1942).....0eee013

Dandridge v. Williams, 397

U.S. 7101970 occcccccesccccccctegl3y16

Examining Board v. Otero,

4.26 U.S. (0 3 eee

Forman v. Davis, 371 U.S. 178(1962)...18

Hagarsv. Levine,415 U.S. 528(1974....4,5

Jefferson v. Hackney, 406 U.S. 535

COU 600 606660600000660660066060040%

Jones v. Mayer, 392 U.S. 409, 412

a VET e debates 66000000600068406400800"8

Langnes v. Green, 282 U.S. 531(1931)...13

Rosado V. Wyman, 397 U.S. 397

teat asusendendedsiasscecucatictt

Schlesinger v. Councilman, 420

U.S. 2 4, | Re reyrTT eT TTT TS

United States v. Am. Ry. Express Co.,

265 U.S. L425 (19214) cr cccccccceceeel 3519

Van Lare v. Hurley, 421 U.S. 338

C953 06006600660000060006066060006064

Blue v. Craig, 505 F. 2d 830

(4th Cir. 197 JevoccccccccccccccceeIg Ih

ii

CASES PAGES

Crowe v. Eastern Board of Cherokee

Indians 506 F.2d 1231 (1974 Cir.4)..10

Daiche v. Board of Levee, 46 F.2d

340 (E.D. La. Perr rrrerrT TTT:

Gomez v. Florida State Et. Service,

417 F. 2d 569 (Sth Cir. 1969) ...0++9515

Gonzales v. Young, F.2d. ;

46 L.W. 2065(July 15, 1977,

GEPs Boecdccoudeeseseseseecoescoscoecoets

John Birch Society v. Nat'l Broad-

casting Co., 377 F.2d 194

(1967 Cir. TT TTT TTTTTTTTiTTs ts

Jones v. Freeman, 400 F.2d 383

(1968 Cir. I Mii ined ii ec cele eins oi

McGovern vw American Airlines, Inc.,

511 F.2d 653(1975 Cir. 5) rehearing

denied 514 F.2d 1072 (1975 Cir. 5)...17

Aetna Casualty & wy 4 Co. V.

Flowers, 330 U.S. 464(1947)........4213

Bomar v. Keyes, 162 F.2d 136(1947 Cir.3

cert. denied 332 U.S. 825....cceeceeelD

Common Cause v. Democratic National

Committee, 333 F. Supp. 803

(D.D.C. 1971

OTHER AUTHORITIES:

PPT TTT TUTTO TTTTTTTTTrk.

UNITED STATES CONSTITUTION, Art. 6,

Clause 2 (The supremacy clause).2,10,14

iii

STATUTES:

28 U.S.C.

28 U.S.C.

28 U.S.C.

42 U.S.C.

42 U.S.C.

45 C.F.R.

PAGES

900909) 6 ccdecscdg Beh, 13, 0,19

OUTS nv endcccccecdcskg las

cide tsddaaicisccioee

SGORGa (BB) cccccvccocsecccscdetF

PGR cccccscccccecccccseccels

BABS Pcie ccccdccccccccessoocett

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

* * *

NO. 77-719

* * *

JEROME D. CHAPMAN, COMMISSIONER

OF THE TEXAS DEPARTMENT OF HUMAN

RESOURCES, ET AL.,

Petitioners

V.

HOUSTON WELFARE RIGHTS

ORGANIZATION, ET AL.,

Respondents

x * *

OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI ON A DECISION OF

THE FIFTH CIRCUIT COURT OF APPEALS

* * *

The respondents, the Houston Welfare

Rights Organization, Agnes Stafford, Dorothy

Phoenix, Paula Ortega and Maria San Juana

Ortega, appellants below, oppose the granting

of a writ of certiorari to review a decision

of the Fifth Circuit Court of Appeals of

July 13, 1977.

@1<

QUESTIONS PRESENTED FOR REVIEW

Respondents would add the following

questions in opposition to the writ for cer-

tiorari because they are dissatisfied with

the statement of petitioner under Rule 40(3)

of the Supreme Court Rules. Respondents begin

with number four. Petitioners state the first

three.

(4) Does 28 U.S.C. 81343(3) give federal

district courts jurisdiction over a state-

federal welfare conflict raising whether 42

U.S.C. 81983 or $602(a)(23) is an equal

rights statute and whether 42 U.S.C. 81983

secures review of conflicts under the

Supremacy Clause?

(5) Does the record clearly raise the

jurisdictional issue or is it obscure be-

cause of respondents two attempts to amend

their petition ir district court pursuant to

28 U.S.C. $1653 to obtain pendent jurisdiction?

ou

CONSTITUTIONAL AND OTHER PROVISIONS

Because respondents are dissatisfied with,

the statement of the statutes involved they quote

three others pursuant to Rule 40(3) of the

Supreme Court Rules.

The Jurisdictional provisions at 28 U.S.C.

51343 Gé&Xadded)

The district courts shall have origi-

nal jurisdiction of any civil action

authorized by law to be commenced

by any person:...(3) To redress the

deprivation, under color of any State

law, statute, ordinance, regulation,

custom or usage, of any right, pri-

vilege or immunity secured by the

Constitution of the United States

or by any Act of Congress providing

for equal rights of citizens....

(+) To recover damages or to secure

equitable or other relief under any

Act of Congress providing for the

protection of civil rights, includ-

ing the right to vote.

The right to amend at 28 U.S.C. 81653

Defective allegations of jurisdiction

may be amended, upon terms, in the

trial or appellate courts.

~

STATEMENT OF THE CASE

On March 7, 1973, respondents, a welfare

rights organization and individual recipient

families, brought a welfare suit in federal

district court to restrain a reduction in

grants to smaller families (R.1-19). They

lost the temporary motion and again lost on

summary judgment, but prevailed on appeal only

as to the proration point. In the heat of

litigation they mistakingly, failed to allege

pendent jurisdiction pursuant to Hagans v.

evine,415 U.S. 528(1974). When the district

pointed their error out, the welfare recipients

moved earnestly to amend. So earnestly that

they will detail their attempts.

The recipients tried to amend their com-

plaint to obtain pendent jurisdiction

eon

under the method approved by Hagans v.

Levine, 415 U.S. 528 (1974). They were so

earnest in this effort that they will detail

their attempts.

The district court first indicated juris-

dictional problems in its memorandum and

opinion dated February 11, 1975 (R. 288-305).

Prior to signature of the judgment, respon-

dents filed a motion to reopen the court's

memorandum for leave to amend petition (R.

308-309). After signature of judgment,

respondents again filed another motion to

modify judgment for leave to amend petition

(R. 317-318). The court denied both motions

on May 9, 1975 (R. 319). The recipients

marized this history in their notice of

appeal to the Fifth Circuit (R. 320). The

court cited the demands on its docket as the

reason for denial of the motion. The court

also erroneously spoke of the fact that

respondents had their day in court. To the

He

contrary the court decided the case on the

papers of cross motions for summary judgment.

There was no trial and respondents had no

opportunity to amend by oral motion.

Also the welfare recipients alleged an

additional jurisdictional ground not rejected

below 28 U.S.C. $1343(3) (first amended com-

plaint, para. 3, p. 2 (R. 178-194)).

Perhaps a few words are appropriate on

the merits. The welfare recipients brought

this AFDC case as a challenge to the present

flat grant established by consolidating the

former itemized standard of need. Pre-

viously the petitioner budgetted four items

of need. Now he budgets one figure from a

schedule arrived at by averaging the former

items.

The welfare recipients stated the issues

around the level of the flat grant. They

prevailed below on the levels added in for

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shelter and utilities. The court of

appeals held that these levels could not

be prorated downward when the recipient

lived with other persons. Petitioner

asks for a writ of certiorari because of

the required increase in the standard of

need for some recipients.

ARGUMENT AGAINST GRANTING THE WRIT

Respondents address these arguments in

the order of questions presented for review.

Therefore they begin their argument with

petitioner's first point on district court

jurisdiction.

(1). Jurisdiction exists under 28 U.S.C.

$7343 (

Respondents recognize that the circuits

conflict on 28 U.S.C. 81343(4) jurisdiction,

but rely on the face of the jurisdictional

provision and point out one limit in the

breadth of petitioner's question. 28 U.S.C.

§1343(4) gives federal district courts juris-

diction over "any civil action...to recover

damages or to secure equitable relief under

any Act of Congress providing for the protec-

tion of civil rights." Since 42 U.S.C.

61983 is a statute protecting civil rights,

jurisdiction lies. The leading Fifth Cir-

cuit case of Gomez v. Florida State Employ-

ment Service, 417 F.2d 569 (5th Cir. 1969),

supported the Fourth Circuit on the same

position in Blue v. Craig, 505 F.2d. 830

(4th Cir. 1974). Furthermore other courts

have recognized the wide scope of 81343(4)

(Jones v. Mayer, 392 U.S. 409,412 n.1(1968);

au

Crowe v. Eastern Board of Cherokee Indians,

506 F.2d 1231, 1234(1974 Cir. 4%) and Common

Cause v. Democratic National Comm., 333

F. Supp. 803, 808 n.8(D.D.C. 1971)).

Petitioner indicates in his petition at

p. 6 that the Fifth Circuit found no supremacy

Clause claim. The Fifth Circuit footnote

merely does not use that label (A.B-30 n.1).

Respondents argue that a federal-state conflict

under the Social Security Act states a supre-

macy clause clain.

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(2). There is no conflict with prior deci-

sions of this court on the merits.

The Fifth Circuit held that the peti-

tioner's proration policy presumed that a

person living with the AFDC family contri-

butes incom to the family and thus violated

45 C.F.R. § 233.90(a) (1976) and this court's

decision in Van Lare v. Hurley, 421 U.S.

338 (1975). They would specifically point

out that Van Lare was not available to the

district court. The Fifth Circuit was the

first court to apply it to the Texas policy.

Simultaneously petitioner hints at a

@11<

conflict between a prior decision of this

court Jefferson v. Hackney, 406 U.S. 535

(1972), with the decision below. Jefferson

involved an entirely different method of

establishing need which took effect in 1969.

The instant case deals with a standard of

need effective four years later in 1973. The

circuit court likewise considered this ques-

tion and rejected it.

- There is no intrusion into state

discretion to set the standard of need ,

Congress limited state discretion to

set its standard of need by 42 U.S.C. 8602

(a)(23). This court has recognized this

limitation in Dandridge v. Williams, 397 U.S.

471, 482(1970), and in Rosado v. Wyman,

397 U.S. 397(1970). Petitioner may not

deprive welfare recipients of their 1969

cost of living increase.

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(A4). Respondent's additional reasons

for opposing the writ

Respondents urge two reasons not relied

on by the court below for denying this writ of

certiorari: an alternate ground for jurisdic-

tion 42 U.S.C. 81343(3) and the fact that the

district court denied respondent's motions to

amend the petition to state a constitutional

issue beyond the Supremacy Clause Claims. Re-

spondents raise these supporting grounds as

matters overlooked by the Court of Appeals

(Dandridge v. Williams, 397 U.S. 471, 475 at

n.6(1970)3; Aetna Casualty & Surety Co. v.

Flowers, 330 U.S. 464, 468(1947); Bondholder's

Com'e vy. Com'r of Internal Revenue, 315 U.S.

189, 192 at n.2(1942); Langnes v. Green,

282 U.S. 531, 538-539(1931)3 United States v.

Am. Ry. Express Co., 265 U.S. 425, 435-436

(1924)).

=13-

(4) ._ Alternate jurisdiction under 42

U.S.C. 81343(3

The court should not grant this petition

for a writ of certiorari because there are

additional grounds for alleged jurisdiction

than those relied on by the district court.

Respondent alleged jurisdiction on both 42 U.S.C.

81343(3) as well as 42 U.S.C. 81343(4). The

district court merely found jurisdiction on the

latter ground.

Plaintiffs argue that the Civil Rights

Act, 42 U.S.C. 81983, provides a cause of ac-

tion for when the right denied is a right

secured by a federal statute. They urge two

reasons in support. First, 81983 is an equal

rights statute for the purposes of 28 U.S.C.

81343(3). And second, 81983 secures review

of conflicts between federal and state law

under the Supremacy Clause. In other words

these conflicts are constitutional claims

for the purposes of 28 U.S.C. 81343(3).

(See Examining Board v. Otero, +26 U.S.

572(1976)).

athe

The petitioner cites an abstract of a

decision of the Third Circuit finding no juris-

diction under 531343(3) (Gonzales v. Young,

F.2d. » 46 L.W. 2065 (July 15,

1977, Cir. 3)). The court needs the full

text because as early as 1947, the third

circuit found jurisdiction in similar cases

(Bomar v. Keyes, 162 F. 2d 136 (3rd Cir. 1947),

332 U.S. 825(1947)).

Later the Fourth and Fifth Circuits joined

the third (Blue v. Craig, 505 F. 2d 830 (4th

Cir. 1974); Gomez v. Florida State Et.

Services, 417 F.2d 569 (5th Cir. 1969)).

cert. den.

As to the equal rights point, the court

should also note that respondents plead a

class action on a 42 U.S.C. 8602(a) (23)

claim with language of “unreasonable rela-

tion(ships)" and "unfair" discrimination

(R. 178-194, First Amended Complaint para.

2d, p.23 para. 53, p.113 para. 59, p.11).

This highest court has previously interpreted

42 U.S.C. $602(a) (23) to have the purpose of

~15-

"prod(ding) the States to apportion their pay-

ments on a more equitable basis" (Rosado v.

Wyman, 397 U.S. 397, 413 (1970)). 42 U.S.C.

8602(a)(23) addressed the unfairness of dollar

maximums on welfare grants litigated as an

equal protection case in Dandridge v. Williams,

397 U.S. 471,482(1970). Respondents plead an

equal rights statute in their class action.

~16-

(5) _. Obscurity of record given attempt to

amend |

The court should not grant this petition

for a writ of certiorari because the record

does not clearly raise the jurisdictional

issue. Both after the trial court's opinion

and again efter entry of judgment, respon-

dents moved for leave to amend their petition

to state a constitutional issue beyond the

Supremacy Clause claims - In those

motions, they reminded the court that they

briefed a due process issue in their motion

for summary judgment. The district court

denied their motion to amend the petition

presumably because it found jurisdiction on

alternate grounds now under challenge.

Respondents’ motion was after notice and

before judgment. It was timely and was

entitled to consideration (McGovern v. American

Airlines, Inc. 511 F.2d 653, 654(1975 Cir. 5);

John Birch Society v. Nat'l Broadcasting Co.,

377 F.2d 194, 199(1967 Cir. 2)). Under 28

U.S.C. 81653, respondents would be entitled

=17=

to amend (Schlesinger v. Councilman, 420

U.S. 738, 744 n.9(1975)3; Forman v. Davis,

371 U.S. 178(1962); Jones v. Freeman, 400 F.

2d 383-387(1968 Cir. 8); Dolche v. Board of

Levee, 46 F. 2d 340, 342(E.D. La. 1930)).

But it was unnecessary for the district court

to reach that issue because it found jurisdic-

tion on alternate grounds (United States v.

Am. Ry. Express Co., 265 U.S. 531, 538-539

(1931)). Respondents sought rather neither

to enlarge their own rights, nor lessen those

of their adversary.

CONCLUSION

Respondents pray that the court deny

the writ.

Respectfully submitted,

JEFFREY J. SKARDA

2912 Luell Street

Houston, Texas 77093

(713) 695-3684

JOHN WILLIAMSON

Texas Rural Legal Aid

305 East Jackson, S. 122

Harlingen, Texas 78550

(512) 423-0319

Attorneys for Respondents

a)

BY Lh Maie—

TT?

-18-

CERTIFICATE OF SERVICE

I, Jeffrey J. Skarda, attorney for

respondents, hereby certify that three copies of

the above document was delivered to counsel

for petitioners, John L. Hill, David M.

Kendall, Steve Bickerstaff, and David H.

Young, P. 0. Box 12548, Capitol Station,

Austin, Texas, 78711, on the J)‘ day of

Peeiubs iy 1977, Dy_saptecf °

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