Opposition — Blum v. Swift

AUG 17 1979

IN THE | I

Supreme Court of the United States

OcTOBER TERM, 1979

No. 79-101

<> -—

BARBARA BLUM, Individually and as Commissioner of the

New York State Department of Social Services, and

Puiuip L. Tota,

Petitioners,

against

JOANNE SwIFT, Individually and on behalf of her minor

daughter, MICHELLE SwiFT, and on behalf of all other

persons similarly situated,

Respondents,

LyLiA Roe, Individually and on behalf of her minor

children, CAROL Rok and CHERYL Rog,

Intervenor-Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

MARTIN A. SCHWARTZ

EILEEN R. KAUFMAN

WESTCHESTER LEGAL SERVICES, INC.

95 Lincoln Avenue

New Rochelle, New York 10801

(914) 235-0906

Counsel for Respondents

ie i.

TABLE OF CONTENTS

Susetion Presented ...<.sss«es- 2

me@guiations Involved . . «5 ss «ss 2

Statement of the Case ........ 3

REASONS WHY THE WRIT SHOULD BE DENIED

I. THE CONTESTED POLICY VIOLATES

EXPLICIT HEW REGULATIONS AND

THIS COURT'S DECISIONS IN

VANLARE v. HURLEY, 421 U.S.

338 (1975) AND LEWIS v. MARTIN,

397 U.S. 552 (1970) . tare Xs

II. THE DECISION OF THE COURT OF

APPEALS IS IN ACCORD WITH THE

DECISIONS OF THE LOWER FEDERAL

AmU @aehte COURTS . 16 6 « + 18

le

III. PLENARY REVIEW IS UNWARRANTED

BECAUSE THE CONTESTED POLICY

HAS BEEN HELD INVALID AS A

MATTER OF STATE LAW ..... 20

IV. THE DECISION BELOW ONLY REQUIRES

PETITIONERS TO MAKE INDIVIDUAL

DETERMINATIONS THAT THE SELF-

MAINTAINING INDIVIDUAL'S INCOME

WAS APPLIED TO SHARED HOUSEHOLD

NEEDS. IT DOES NOT PLACE AN

EVIDENTIARY BURDEN ON THE

Tes 3 ek ee Se Ke ee 22

co ee ee ee a ea ee 24

Appendix "A", Genin v. Toia , _N.Y.2d_

i ae ae. 3. | ns Al-A2

TABLE OF AUTHORITIES

Cases:

DeRocha v. Berger, 55 App.Div.2d 1042

(4th Dept. 1977).

tdwards v. Toia, 61 App.Div.2d 1089

(3d Dept. 1978), leave to gbpeal

denied, 44 N.Y. 2d 649 (197

Foran v. Dimitri, 62 App.Div.2d 1124

(3d Dept. 1978), leave to gopeal

denied, 45 N.Y. 2d 706 (197

Gabel v. Tloia, 64 APP. Div.2d vine o—

Dept. 1978)

Gilliard v. Craig, 331 F.Supp. 587

(W.D.N.C. 1971) (three-judge

court), aff'd, Binks U.S. 807

(1972). i+ & +a es =, ee

Hausman v. Department of Institutions

21

21

18,19

and Agencies, 64 N.J. 203, 314 A.od

362, cert. denied, 417 U.S. 955

Cl97S) «°° Frm Ve) ee een

Hoehle v. Likins, 538 F.2d 229 (8th

Cir. 1976), aff'g, 405 F.Supp.

1167 (D. inn. SOTO? es

18,19

10,18

Houston Welfare Rights Org. v. Vowell,

955 F.2d 1219 (5th Cir. 1977),

rev'd and remanded on other

grounds, 99 S.Ct. 1905 (1979)

Howard v. Madigan, 363 F.Supp. 351

oR. ee 1973) > + = oe See

ii

10,18

19

Page

Illinois State Board of Elections v.

Socialist Workers rarty BeGt.

Fes (A979). ss Peis » 20

Jenkins v. Georges, 312 F.Supp. 289

(W.D.Pa. 1969) (three-judge

PEM eT Cl. 5 5 « » « « « 19

Johnson v. Harder, 383 F.Supp. 174

(D.Conn. 1974), ore "G,. 512 F.2d

1188 (2d Cir. 1975), . cert. denied, _

423 U.S. 876 (1973) oc. » . 6

Johnson v. Toia, 55 App.Div.2d _?

(Sth Dept. 1977)... . coe 22

King v. Smith, 392 U.S. 309 (1968) . 12,14

Lewis v. Martin, vad ais. at (1970)

. > a Seca eae, 14,15

Matter of Zaccheo v. Toia, 65 App.Div.2d

ew EMEOMN ESTO) » « . « 2 ow e 21

Mothers and Childrens Rights Org. v.

Stanton, 371 F.Supp. 298 (N.D.Ind.

1973) . . . . . + . . 7 . 7 . * . 19

Nelson v. Toia, 92 Misc.2d 575 (N.Y.

Sup.ct.), aff'd, 60 A.D.2d 796

(4th Dept. ~1977) , mot.for. lv. to

den., 44 N.Y.2d 646

CTs) eerie. . . , 11,20,22

Padilla v. Wyman, 34 N.Y.2d 36, appeal

dismissed, 419 U.S. 1084 057i 20

Reyna v. Vowell, 470 F.2d 494 (5th

PETS CTs) 5 « « » « « « 11,19

iii

Page

Rodriguez v. Vowell, 472 F.2d 622

(5th Cir), cert. denied, 412

0.0< 995 tise 6 4 eS a ee ce

Roselli v. Affleck, 508 F.2a pais

(lst Cir. 1974) he ae is = we

Snowberger v. Toia, 46 N.Y.2da 803

ceeees 6X Se ee ae ae ee Oe

Swift _v. Toia, 598 F.2d 312 (2d Cir.

1979), aff'g, 450 F.Supp. 983

(S.D.N.Y. 1978) and 461 F. ee

STS (3.0.0.3. 1978)... . o° feat

VanLare v. Hurley, 421 U.S. 338

(1975). . 2,3,4,7,10,12,13,14,15

FEDERAL REGULATIONS

45 C.F.R. § 233.20(a)(2) (viii) . 2,3,10,13

S as cOOtas 4s 8 ks ss BLO

42 Fed.Reg. 6583 (Feb. 3, 1977)... . 14

U3. meme. Fe, 29 5 6s 6 ee a es 9

STATE STATUTE

New York Social Services Law, § l3l-a. y

STATE REGULATION

16 8:20.58, 3 ese sk SK ee y

iv

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO, 79-101

BARBARA BLUM, Individually and as Commis-

sioner of the New York State Department

of Social Services, and PHILIP L. TOIA,

Petitioners,

-against-

JOANNE SWIFT, Individually and on behalf

of her minor daughter, MICHELLE SWIFT, and

on behalf of all other persons similarly

situated,

Respondents,

LYLIA ROE, Individually and on behalf of

her minor children, CAROL ROE and CHERYL

Roe,

Intervenor-Respondent.

On Petition For A Writ Of Certiorari ‘To The

United States Court of Appeals

For The Second Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

The respondents respectfully request

that this Court deny the petition for writ

of certiorari, seeking review of the Second

Circuit's opinion in this case. The opinion

of the Second Circuit is reported at 598 F.2d

312 (2d Cir. 1979).

QUESTION PRESENTED

Whether the Court of Appeals correctly

held that the automatic reduction of AFDC

assistance, when a non-legally responsible,

self-maintaining individual resides with

an AFDC family, violates the federal Social

Security Act and implementing HEW regula-

tions as construed in VanLare v. Hurley,

421 U.S. 338 (1975) and Lewis v. Martin,

397 U.S. 397 (1969).

REGULATIONS INVOLVED

Sections 233.20(a)(2)(viii) and

233.90(a) of Chapter II, Title 45 of the

Federal Regulations provide in relevant

part that:

"...the money amount of any item

included in the standard will not

be prorated or otherwise reduced

solely because of the presence

in the household of a non-legally

responsible individual; and the

agency will not assume any con-

tribution from such individual

for the support of the assistance

unit." 45 C.F.R. §233.20(a) (2)

(viii).

"nor may the state agency

prorate or otherwise reduce

the money amount for

any item included in the

standard on the basis of

assumed contributions from

non-legally responsible

individuals living in the

oo 45 C.F.R. $233.90

a).

STATEMENT OF THE CASE

This action contests the validity of

a New York Department of Social Services'

policy of automatically prorating and thus

automatically reducing an AFDC family's

public assistance grant when a non-legally

responsible, self-maintaining individual

resides with the AFDC family. New York

sought to carry out and defend this policy

despite this Court's decisions in VanLare

v. Hurley, 421 U.S. 338 (1975) and Lewis

v. Martin, 397 U.S. 552 (1970), and despite

the fact that the policy is specifically

prohibited by HEW regulations, 45 C.F.R.

$§233.20 (a)(2)(viii) and 233.90(a).

Respondent Swift and her minor daughter

are recipients of AFDC assistance. For a

family of two with a rent of $212 per month,

New York generally provides a monthly

assistance grant of $362.* However, pur-

Suant to the contested policy, Ms. Swift

and her daughter only receive AFDC assis-

tance of $289.34 per month (2/3 of a grant

* $362 represent the basic standard of

needs allowance for a family of two of $150,

plus a rental allowance of $212. Section

13l-a of the New York Social Services Law

provides:

“The following schedule shall be

the standard of monthly need for

determining eligibility for all

categories of assistance in and

by all social services districts:

Number of Persons In Household

One Two Three Four Five Six

$94 $150 $200 $258 $318 $368

[This schedule does not include

allowances for rent]."

Pursuant to 18 N.Y.C.R.R. §352.3(a), a

family is entitled to an additional allow-

ance for shelter. A family of two residing

in Westchester County is entitled to a shel-

ter allowance eaual to the rent paid up to

a maximum of $212 per month.

for a family of three). The AFDC grant is

reduced by $72 per month solely because

Ms. Swift's Son, William Rooney, who re-

ceives support payments from his father,

resides with Ms. Swift and her daughter.

(5a-6a).*

Similarly, the AFDC grant of respondent

Roe and her two daughters was reduced by

$43.50 per month because her third daughter,

Ann Marie, who receives in kind support

from her father, resides in the home. (6a-

7a). If William and Ann Marie moved out

of their respective households, the Swift

and Roe families would receive full grants

of AFDC assistance.

Petitioners only discuss the validity

of their policy as applied to self-maintain-

ing children who receive support payments.

The Courts below, however, found that

* References are to the Appendix to the

Petition for a Writ of Certiorari.

petitioners were carrying out a policy of

automatically prorating and reducing AFDC

grants when “an individual, who has no

legal obligation to support the AFDC family

and who receives non-welfare income suf-

ficient to meet his or her needs, resides

with an AFDC family...." (Judgment of the

District Court, entered December 15, 1978).

(emphasis added).* Thus, petitioners'

policy is not limited to self-maintaining

children, but includes any self-maintaining

individual, and is not limited to that

individual's receipt of support payments,

but includes the receipt of any non-welfare

income.

In two separate opinions rendered by

*# The scope of the policy is reflected in

the class certified by the district court.

(14a). The petition for certiorari does

not contest the class certified by the

district court or the findings by the courts

below as to the nature or scope of the

contested policy.

Q

the district court, and in an opinion by

the Court of Appeals, petitioners' policy

was found to conflict with the federal

Social Security Act and implementing HEW

regulations. Swift v. Toia, 598 F.2d 312

(2d Cir. 1979), aff'g, 450 F.Supp. 983

(S.D.N.Y. 1978) and 461 F.Supp. 578 (S.D.

N.Y. 1978). (la-30a). Each decision fully

considered petitioners' contentions and

found them foreclosed by the applicable

HEW regulations and by this Court's decision

in VanLare v. Hurley, 421 U.S. 338 (1975).

The decision of the court of appeals

Only prohibits petitioners from automatically

prorating and reducing the AFDC grant when

an individual, who has no legal obligation

to support the AFDC family and who receives

non-welfare income sufficient to meet his

or her needs, resides with the AFDC family.

Petitioners are not prohibited from reduc-

ing the AFDC grant after determining "(1)

the actual amount of contributions, if any,

that the AFDC household receives from the

non-legally responsible person who resides

in the AFDC household, or (2) the actual

amount of decreased need, if any, of the

AFDC household, resulting from the presence

of the non-legally responsible person."

(Judgment of the District Court, entered

December 15, 1978, p.4).* In addition,

the judgment does not enjoin petitioners

from enforcing any State statute or regu-

lation, but only the policy of automatic

proration.

Petitioners have made no attempt to

demonstrate that this case meets any of

this Court's criteria for the granting of

* The decision below simply requires

petitioners to make the necessary determin-

ations. Neither the judgment of the

district court nor the opinions below

place an evidentiary burden on petitioners

when they make this determination. See

Point iv, infra.

certiorari. U.S.Sup.Ct. Rule, 19. Peti-

tioners have made no attempt to show

that the decision of the Court of Appeals

is in conflict with the decision of

another court of appeals, that it conflicts

with applicable decisions of this Court,

or that the case presents a substantial

question of recurring importance. Peti-

tioners have not cited even one decision

that supports the validity of their

policy.

Rather, petitioners make the unfounded,

unsubstantiated and exaggerated claim that

the decision below will create an '‘admin-

istrative nightmare" and will require the

expenditure of "prohibitive" costs. (Peti-

tion for a Writ of Certiorari, pp. 9, 13).

Similar claims were made by the petitioners

in VanLare v. Hurley, supra.* They were

not relevant in that case. They are not

relevant here.

The decision of the court below is in

accord with this Court's decisions in

VanLare v. Hurley, supra, and Lewis v.

Martin, supra, is mandated by the appli-

cable HEW regulations, 45 C.F.R. §§233.20

(a)(2)(viii) and 233.90(a), and is consis-

tent with the decisions of the other

circuits. See Hoehle v. Likins, 538 F.2d

229 (8th Cir. 1976), aff'g, 405 F.Supp.

1167 (D.ilinn. 1975); Houston Welfare Rights

Org. v. Vowell, 555 F.2d 1219 (5th Cir.

1977), rev'd and remanded on other grounds,

* In VanLare v. Hurley, supra, the State

Commissioner argued that "were the decision

of the three-judge district court to be

affirmed, appellants estimate that they

would be obliged to increase shelter allow-

ance payments by approximately $6.2 million

annually." Reply Brief for Appellants in

VanLare v. Hurley, p. 7, fn.

10

99 S.Ct. 1905 (1979); Reyna v. Vowell,

470 F.2d 494 (5th Cir. 1972). See also,

Gilliard v. Craig, 331 F.Supp. 587 (W.D.

N.C. 1971)(three-judge court), aff'd,

409 U.S. 807 (1972). In addition, peti-

tioners continue to defend the validity

of their policy in this Court despite

the fact that it has been held invalid

as a matter of state lav by the New York

State courts. Snowberger v. Toia, 46

N.Y.2d 803 (1978); Nelson v. Toia, 92

Misc.2d 575 (N.Y.Sup.Ct.), aff'd, 60

App.Div.2d 796 (4th Dept. 1977), mot. for

lv.to app.den., 44 N.Y.2d 646 (1978).

Accord, Genin v. Toia, _N.Y.2d_ (July 3,

1979).* Plenary review is thus clearly

unwarranted.

* The decision in Genin v. Toia, is

reproduced in Appendix "A" to this Brief.

11

REASONS WHY THE WRIT SHOULD BE DENIED

I, THE CONTESTED POLICY VIOLATES EXPLICIT

HEW REGULATIONS AND THIS COURT'S

DECISIONS IN VANLARE v. HURLEY, 421

U.S. 338 (1975) AND LEWIS v. MARTIN,

397 U.S. 552 (1970).

The primary purpose of the AFDC program

is the protection of needy and dependent

children. King v. Smith, 392 U.S. 309

(1968). This Court and HEW have consistently

recognized that state policies which work

an automatic reduction of AFDC benefits

because of the presence in the home of a

non-legally responsible person frustrate

this pugpose because they are based on

assumed rather than the actual availability

of income. VanLare v. Hurley, 421 U.S.

338 (1975); Lewis v. Martin, 397 U.S. 552

(1970).

The courts below correctly found that

the contested State policy violates the

express terms of two HEW regulations. HEW

regulations specifically provide that "the

12

—

money amount of any item included in the

Standard will not be prorated or otherwise

reduced solely because of the presence in

the household of a non-legally responsible

individual, ...." 45 C.F.R. §233.20 (a)

(2)(viii). They also provide that the

States may not "prorate or otherwise reduce

the money amount for any item included in

the standard on the basis of assumed

contributions from non-legally responsible

individuals living in the household." 45

C.F.R. §233.90(a).

In its preamble to these regulations,

HEW explained that they were mandated by

this Court's decision in VanLare v. Hurley,

Supra, and that it was necessary to speci-

fically prohibit proration because "pro-

rating the standard of need is another form

of assumption of income from non-legally

responsible individuals which has long

been prohibited by federal regulations and

13 P

by the U.S. Supreme Court in case of King v. without determining whether or not that

Smith, Lewis v. Martin, et al." 42 Fed.Reg. person is using his or her income for shared

6583 (Feb. 3, 1977). In addition, HEW

made it clear that its regulations apply

to all shared households and not just to

those containing a "man-in-the-house" or

a "lodger." Id. "In VanLare, only one of

the three petitioners could be considered

to be snaring living arrangements with a

man-in-the-house; of the other two, one

was sharing with a sister, one with an

adult son." Id.; VanLare v. Hurley, supra,

at 340, n.1.

This Court's decision in VanLare v.

Hurley, supra, is therefore clearly con-

trolling in the instant case. As in

VanLare, the vice of the contested policy

herein is New York's automatic reduction

of the AFDC grant because of the presence

of a self-maintaining, non-legally res-

ponsible person in the AFDC household,

14

household expenses, or whether or not the

household's needs have decreased.

Petitioners attempt to distinguish

VanLare by asserting that, in the case at

bar, petitioners only presume contribution

when the non-legally responsible individual

actually has income. But whether or not

the "lodger" had income was irrelevant to

this Court's decision in VanLare. Rather,

the New York “lodger" regulations were

held invalid in VanLare because they were

"based on the assumption that the non-

paying lodger is contributing to the

welfare household, without inquiry into

whether he in fact does so." VanLare v.

Hurley, supra at 346. (emphasis added).

Moreover, in Lewis v. Martin, supra, this

Court held that the income of a person

with no legal obligation to support the

AFDC family cannot, absent proof of actual

15

contributions, serve as a basis for the

reduction of the AFDC grant. And, in

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

aff'g, 331 F.Supp. 587 (W.D.N.C. 1971),

this Court affirmed a decision of a three-

Judge district court which held that the

States may not assume that Support payments

of a non-needy child are available to meet

the needs of the AFDC family with whom he

resides. See also, Johnson v. Harder,

383 F.Supp. 174 (D.Conn. 1974), aff'd, 512

F.2d 1188 (2d Cir. 1975), cert. denied,

423 U.S. 876 (1975).

The harm caused by automatic proration

is well illustrated by the case of res-

pondent Roe, whose daughter Ann Marie

receives in kind support, rather than cash,

from her father. As the district court

stated:

“the lack of inquiry as to

actual contribution to the [Roe]

household may result in genuine

hardship to the AFDC recipients

where the non-AFDC child is

Supported in kind rather than

16

Bn a ee Bee -. 8 ree’

nn te

with funds. For example, if

Ann Marie's father provides

her monthly with actual items

of food and clothing, but no

monetary sum that is actually

contributed to the AFDC unit,

it is wholly artificial to

maintain that the cost of run-

ning a four-person household is

reduced by one quarter, i.e.,

$112.50 per month, Ann Marie's

state determined total needs

as 1 person of 4. In such an

instance, reality dictates that

the remaining family members,

the AFDC household of three,

require a full shelter allowance

for three people in addition

to a basic needs allowance for

three people." Swift v. Toia,

461 F.Supp. 578, 582 (S.D.N.Y.

1978). (12a-13a).

Moreover, “there are undoubtedly countless

factual permutations among the class

members where the non-AFDC child's support

arrangement Consists of support in kind

only, or support which is given partially

in kind and partially in funds, or simply

Support in whatever monetary amount an

absent parent can spare on a monthly

basis." Swift v. Toia, supra at 583. (13a).

Since the decision of the Court of

17

Appeals merely held that the contested

State policy violated explicit federal

regulations, plenary review should be

denied. Gilliard v. Craig, 331i F.Supp.

587 (W.D.N.C. 1971), aff'd, 409 U.S. 807

(1972); Hausman v. Department of Institu-

tions and Agencies, 64 N.J. 203, 314 A.2a

362, cert. denied, 417 U.S. 955 (1974).

II. THE DECISION OF THE COURT OF

APPEALS IS IN ACCORD WITH THE

DECISIONS OF THE LOWER FEDERAL

AND STATE COURTS.

The decision of the Court of Appeals

simply follows a consistent line of federal

and state court decisions.

The decision of the Second Circuit

is in accord with the decisions of all of

the Circuits which have considered the

issue. Hoehle v. Likins, 538 F.2d 229

(8th Cir. 1976), aff'g, 405 F.Supp. 1167

(D.Minn. 1975); Houston Welfare Rights

18

Org. v. Vowell, 555 F.2d 1219 (5th Cir.

1977), rev'd and remanded on other grounds,

99 S.Ct. 1905 (1979); Reyna v. Vowell, 470

F.2d 494 (5th Cir. 1972); Rodriguez v.

Vowell, 472 F.2d 622, 627 (5th Cir.),

cert. denied, 412 U.S. 944 (1973); Roselli

v. Affleck, 508 F.2d 1277, 1282 (lst Cir.

1974). It is also consistent with all of

the applicable decisions of the federal

district courts, Mothers and Childrens

Rights Org. v. Stanton, 371 F.Supp. 298

(N.D.Ind. 1973); Howard v. Madigan, 363

F.Supp. 351 (D.S.D. 1973); Gilliard v.

Craig, 331 F.Supp. 587 (W.D.N.C. 1971),

aff'd, 409 U.S. 807 (1972); Jenkins v.

Georges, 312 F.Supp. 289 (W.D.Pa. 1969)

(three-judge court), and the highest

courts of New Jersey, Hausman v. Department

of Institutions and Agencies, 64 N.J. 203,

314 A.2d 362, cert. denied, 417 U.S. 955

(1974); and New York, Snowberger v. Toia,

19

46 N.Y.2d 803 (1978); Matter of Nelson v.

Toia, 92 Misc.2d 575 (N.Y.Sup.Ct.), aff'd,

60 A.D.2d 796 (4th Dept. 1977), mot.for

lv.to app.den., 44 N.Y.2d 645 (1978). There

are no decisions in conflict with that of

the court below. *

III. PLENARY REVIEW IS UNWARRANTED

BECAUSE THE CONTESTED POLICY HAS

BEEN HELD INVALID AS A MATTER

OF STATE LAW.

Petitioners continue to defend their

* Padilla v. Wyman, 34 N.Y.2d 36, appeal

dismissed, 419 U.S. 1084 (1974) deals with

the distinguishable "cooperative budgeting"

situation of two welfare families who

reside in the same residence. The New York

State Court of Appeals ruled that the State

regulation governing that situation did not

violate the equal protection clause. The

Court of Appeals clearly distinguished the

case of two welfare families living together

from the instant case of a non-recipient

residing with a welfare family. Padilla

v. Wyman, supra at 421. This Court's

summary dismissal of the‘ appeal in Padilla

only indicates this Court's agreement with

that specific holding. Illinois State

Board of Elections v. Socialist Workers

Party, 99 S.Ct. 983, 989-990 (1979).

20

policy in this Court despite the fact that

it has been held invalid as a matter of

state law by the New York State courts.

Snowberger v. Toia, 46 N.Y.2d 803 (1978),

aff'g, 60 App.Div.2d 783 (4th Dept. 1977);

Nelson v. Toia, 92 Misc.2d 575, aff'd,

60 App.Div.2d 796 (4th Dept. 1977), leave

to app. den., 44 N.Y.2d 646 (1978). Accord,

Genin v. Toia , N.Y.2d_ (July 3, 1979).*

In Nelson v. Toia, supra, the precise policy

at issue in the instant case was held

invalid as a matter of state law as applied

to facts literally indistinguishable from

those involved herein. The New York State

courts have consistently invalidated peti-

tioners' repeated efforts to impose auto-

matic proration schemes. Matter of Zaccheo

v. Toia, 65 App.Div.2d 624 (2d Dept. 1978);

Gabel v. Toia, 64 App.Div.2d 267. (4th Dept.

1978); Foran v. Dimitri, 62 App.Div.2d 1124

(3d Dept, 1978), leave to appeal denied,

45 N.Y.2d 706 (1978); Edwards v. Toia,

* A copy of the decision in Genin v. Toia,

is reproduced in Appendix "A" to this Brief.

21

61 App.Div.2d 1089 (3d Dept. 1975), leave

to appeal denied, 44 N.Y.2d 649 (1978);

DeRocha v. Berger, 55 App.Div.2d 1042 (4th

Dept. 1977); Johnson v. Toia, 55 App.Div.2d

1043 (4th Dept. 1977).

The courts below correctly determined

that the contested policy is prohibited

by federal law. (Point I, supra). But

regardless of the validity of the policy

under federal law, petitioners are pre-

cluded from applying the policy as a matter

of state law. This provides a dispositive

reason for denying plenary review.

IV. THE DECISION BELOW ONLY REQUIRES

PETITIONERS TO MAKE INDIVIDUAL DETER-

MINATIONS THAT THE SELF-MAINTAINING

INDIVIDUAL'S INCOME WAS APPLIED TO

SHARED HOUSEHOLD NEEDS. IT DOES NOT

PLACE AN EVIDENTIARY BURDEN ON THE

STATE.

Petitioners contend that the decision

below places an evidentiary burden on the

State to show that the self-maintaining

individual's income was applied to shared

22

household needs, and that this burden should

be placed on the recipient. (Petition for

Writ of Certiorari, pp. 11-12). This is an

erroneous view of the decision of the Court

of Appeals.

This action only challenged the valid-

ity of petitioners' policy of automatically

prorating AFDC grants without making any

determination of whether the self-maintaining

individual's income was being used for

shared household expenses. As the Court of

Appeals concluded, "[t]Jhe State did not

make an individual determination as to

either named plaintiff that her child's

income was applied to shared household

expenses." (3a).

The decision of the court below simply

requires that petitioners make this deter-

mination as a prerequisite to proration.

Neither the judgment of the district court.

or any of the opinions of the courts below

23

place an evidentiary burden on petitioners

when they make the necessary determination.

That question is simply not in issue in

this case.

CONCLUSION

For the foregoing reasons, it is

respectfully submitted that the petition

for a writ of certiorari should be denied.

Dated: August 8, 1979

New Rochelle, NY

24

Respectfully submitted,

WESTCHESTER LEGAL

SERVICES, INC.

Martin A. Schwartz, Of

Counsel

Fileen R. Kaufman, Of

Counsel

95 Lincoln Avenue

New Rochelle, NY 10801

Tel: (914) 235-0906

Attorneys for Respondents

APPENDIX

Appendix "A"

STATE OF NEW YORK

COURT OF APPEALS

* # 2 8 £ HR SH RH HH HR RH HR

In the Matter of DEBORAH GENIN,

Appellant,

vs.

PHILIP L. TOIA, as Commissioner

of the New York State Department

of Social Services, et al.,

Respondents.

££ 8 HR RR HH HE HR HR HR HR OH H

MEMORANDUM:

The order of the Appellate Division

Should be reversed, with costs, and sup-

plementary grant of public assistance in

the category of Aid to Dependent Children

to petitioner should be reinstated.

The Commissioner of the State Depart-

ment of Social Services erred in prorating

household expenses between petitioner and

her nine-year-old child, a recipient of

Social Security survivors' benefits. A

child's Social Security benefits may not

A-1l

be deemed available income for the purpose

of determining eligibility for Aid to

Dependent Children when such benefits are

sufficient to satisfy the needs of the

child and the veseeeibinies payee does not

choose to include the child within the AFDC

assistance unit. (See Johnson v. Harder,

383 F.Supp. 174, aff'd, 512 F.2d 1188,

cert. den., 423 U.S. 876; Howard v. Madigan,

363 F.Supp. 351; Matter of Nelson v. Toia,

92 Misc.2d 575, aff'd, 60 A.D.2d 796, mot.

for lv. to app.den., 44 N.Y.2d 646; Matter

of Snowberger v. Toia, 60 A.D.2d 783, aff'd,

46 N.Y.2d 803.)

* % # # # * # #

Order reversed, with costs, and supplementary

grant of public assistance in the category

of Aid to Dependent Children reinstated in a

memorandum. Concur: Cooke, Ch. J., Jasen,

Gabrielli, Jones, Wachtler, Fuchsberg

Decided July 3, 1979