# Opposition — Chapman v. Houston Welfare Rights Organization

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979
- **Citation:** 441 U.S. 600

## Text

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

-6-

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.

-10-

(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.

-12-

(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 °

-19-

---

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