# Opposition — Blum v. Swift

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1980
- **Citation:** 444 U.S. 1025

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0592%3A2. Public record. Not legal advice.