Opposition Brief — Bryant v. Carleson

LiskARY. |

In the Supreme Court off th®' sean

E, ROBERT SEAVER, CLERK

United States

Ocroser TERM 1971

No. 71-5331

DorotHy Bryant, et al.,

Petitioners,

VS.

Rozert B. Car.eson, Director Department of

Social Welfare State of California,

Respondeni.

On PETITION FOR WRIT OF CERTIORARI TO THE

Unitep States Court oF APPEALS FOR THE NINTH CIRCUIT

Brief for Respondent in Opposition

EVELLE J. YOUNGER

Attorney General of the

State of California

ELIZABETH PALMER

Deputy Attorney General

6000 State Building

San Francisco, California 94102

Telephone: (415) 557-0266

Attorneys for Respondent

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

SUBJECT INDEX

Page

SPIN, TRIN: oid ccscsccndascsistacsancamaton cxrcarineuaaecnsmanmcuncio 1

SE ae TRO II LER OAC RROENGS oe N= CE RENNIN Pet 2

INNS SINE 9 oi irc onsssensepesicnsecannensnasaneiicolaniansiceabasition 2

Statutes and Regulations Involved............0220...222222.--------- 3

eens Gr SO is ee 3

A. Proceedings in the Federal Courts........................ 3

DB. Giate Court Preset... 8

C. Department of Health, Education and Welfare

Conformity Proceeaimes ..................................... 8

Feonmoms Tor Themyita Cie Wri accesses... 9

A. The Decision of the Court of Appeals Reversing

the District Court’s Interim Relief Order Pend-

ing State Compliance with the Social Security

Act Is in Accord with the Decision cf This Court

a I I crc rcitecteenessepctranenicicens 10

1. California Did Not Know Whether It Had a

-Maximum Grant Table Subject to the In-

creases Required by the Secial Security Act 12

2. New York’s Alleged “Good Faith” Attempt

I sehisciantencercrierccnins biel asenimiivioe 13

B. The Decision Below, in Accord with Rosado,

Does Not Conflict with Other Decisions of This

Court or Other Courts of Appeal... 14

C. The Court of Appeals Correctly Required the

District Court to Act as a Court of Equity

Should and Weigh the Consequences of Grant-

ek ne 15

I ee ee 17

Appendix

TABLE OF AUTHORITIES CITED

CASES Pages

Adens vy. Sailor, 312 F. Supp. 922 (E.D. Pa. 1970)...... 15

Boddie v. Wyman, 434 Fed, 2d 1207 (2d Cir. 1970)... 14

California Welfare Rights Organization v. Carleson,

4 Cal. 3d 445, 482 Pac. 2d 67, 93 Cal. Rptr. 758

SUNN -Sssischinectiheclshi ical easpasseatsesmiabeasd Samael einkdtas eenpietcicu shonin re Ae

California Welfare Rights Organization, et al., v.

re, WR, SNM TRG, Fe i cc eninccncthessstnseicsresipsenicoess 7

CWRO v. Carleson, 4 Cal. 3rd 445 (1971)......0222... 13, 14

Dandridge v. Williams, 397 U.S. (1970)...........00002..... 4,12, 16

Doe v. Shapiro, 302 F. Supp. 761 (D. Conn. 1969)........ 14

Grubb v. Sterrett, 315 F. Supp. 990 (N.D. Ind. 1970) 14

Kaiser v. Montgomery, 319 Fed. Supp. 329 (N.D. Cal.

1963), vacated and remanded 397 U.S. 595 (1970)....12, 13

Lewis v. Martin, 397 U.S. 552 (1970)..................0......00.- 15

Rosado v. Wyman, 322 F. Supp. 1173 (I.D. N.Y.

BRS patcetnhaitclancacictiuns ca connate nedsapamen enantio 10, 11, 12

Rosado v. Wyman, 397 U.S. 397 (1970).......0..022020... 10, 13, 15

Rothstein v. Wyman, 303 F. Supp. 339, (S.D.N.Y.

aR A Rian aR A MARAE ens ke A Pe ROL OR 14

Solman v. Shapiro, 300 F. Supp. 409 (D. Conn. 1969)

I TN, Raa cana ak ee cad eleasedegsuscecnion 14, 15

Sullivan v. Little Hunting Park, Inec., 396 U.S. 224

INI ccleaner cassia caer ca access toboehiatcaleinkcaskenpsesaiadaiieiebie 15

Wyman v. Rothstein, 398 U.S. 275 (1970)........022.22222.- 14

TaBLE oF Autioritizs CrTEp lil

Statutes anv REGULATIONS Pages

California Wc'fare and Institutions Code:

aii, 5, CRD: 3, 4, 6

Pe Ec oditetiganicam ne ta ee an oe 3

Regulation FAS §§ 44-212, 44-313 and 44-315... 6

Social Security Act, section 402(a)(23) (42 U.S.C.

Peete tee 2, 3, 4, 5, 6, 8, 9, 10, 12, 13, 15, 16

Oe ee eh al ee ea 7

42 U.'S.C.:

ss ving: itt A TT ETRE ESS, Mee Ay 3

(ie cg ee ED AE I eI icy Fi 8

Eo

In the Supreme Court of the

United States

Ocroker Term 1971

No. 71-5331

Dorotuy Bryant, et al.,

Petitioners,

vs.

Rosert B. Carteson, Director Departinent of

Social Weifare State of California,

Respondent.

On PETITION FOR WRIT OF CERTIORARI TO THE

UnrItep STATEs Court oF APPEALS FOR THE NINTH CIRCUIT

Brief for Respondent in Opposition

OPINIONS sELOW

The opinion cf the Court of Appeals for the Ninth Cir-

cuit and the concurring opinion are not yet reported (Ap-

pendix A of Petition). The Amended Partial Summary

Judginent of the District Court dated November 17, 1970

from which the appeal was taken to the Court of Appeals

is unreported (Appendix D of Petition).

2

JURISDICTION

The jurisdiction of this Court has been adequately pre-

sented by petitioners.

QUESTIONS PRESENTED

The certified question presented to the Court of Appeals

was whether in order to achieve compliance with section

402(a)(23) of the Social Security Act (42 U.S.C. 602(a)

(23)) and to preclude the withholding of federal funds the

District Court on November 17, 1970 correctly ordered an

immediate increase in dollar maximums by 21.4% and re-

adjustment of AFDC grants by said amount retroactive

to October 1, 1970, enjoining respondent herein, pending

further order of the Court, from adopting and enforcing

regulations which reduce or otherwise affect the increased

dollar maximums and grants by a ratable reduction based

on the standard of need applied retroactively from the date

of promulgation."

The question before this court is whether the Court of

Appeals was in error in vacating the district court’s order

for an immediate increase retroactive to October 1, 1970 of

the maximum grants pending compliance with section 402

(a)(23) of the Social Security Act and remanding to that

court for further proceedings to consider: (1) the strain

on the budget of the State of California (2) vrejudice to

tne members of the class due to a straightened budget (3) to

give the Calitornia Legislature aa opportunity ¢o respond

1. Subsequently and prior to the Court of Appeals decision

the California Supreme Court held that respondent did not have

the authority to impose a percentage reduction without state legisla-

tive approval nor did he have authority to exceed his budget by

paying increased maximums absent approval of other state officials.

California Welfare Rights Organization v. Carleson, 4 Cal. 3d 445,

482 Pac. 2d 67, 93 Cal. Rptr. 758 (1971).

3

to the inducements Congress provided to abolish the maxi-

mum grant system or to continue it since it is now clear

that respondent alone cannot make that decision.”

STATUTES AND REGULATIONS INVOLVED

42 U.S.C. section 602(a) (23) (section 402(a)(23) of

the Social Security Act), California Welfare and Institu-

tions Code section 11450(a) and 45 CFR section 233.20(a)

(2) (ii) are set forth in relevant part on pages 2 and 3 of

the Petition. 3

STATEMENT OF THE CASE

The State of California participates in the Federal

government’s Aid to Families with Dependent Children

(“AFDC”) program, (Cal. Welf. & Inst. Code §§ 11200-488 )

which was established by the Social Security Act of 1935

(49 Stat. 620, as amended, 42 U.S.C. §§ 301-1394.) Section

402(a) (23) of the Social Security Act requires that each of

the various states which participates in the AFDC program

must have a State Plan which must “provide that by July

iy 1969, the amounts used by the State to determine the needs

of individuals will have been adjusted to reflect fully

changes in living costs since such amounts were established,

and any maximums that the State imposes on the amount

of aid paid to families will have been proportionately

adjusted.” 42 U.S.C. § 602(a) (23).

A. Proceedings in the Federal Courts.

This suit was filed on August 6, 1969, by petitioners,

AFDC recipients, as a class action for injunctive and

2. The District Court’s Order following remand approving

defendant’s compliance program ; order denying retroactive relief

and satisfaction of partial summary judgment, as amended, is

attached as Appendix A.

4

declaratory relief. Petitioners’ prayer for relief, was iter

alia, that the court “issue a preliminary and permanent

injunction restraining Defendant Montgomery [the then

Director of the State Department of Socia] Welfare] ...

[f]rom failing to increase the standards of need and maxi-

mum grants to reflect fully the changes in the cost of living

retroactive to date such increases were required by § 402

(a) (23) of the Sociai Security Act.’

In addition the maximum grant statute was alleged to

violate the equal protectior and due process clauses of the

Fourteenth Amendment to the United States Constitution.

A three-judge court was convened on September 12,

1969. By stipulation of counsel at the request of the

presiding judge the first two causes of action involving

compliance with the Social Security Act were to be heard

by the Honorable Alfonso J. Zirpoli, United States District

Judge. It was considered that his decision might be dis-

positive of the case and would be in the interest of judicial

economy. On January 7, 1970 the Court denied respondent’s

Motion to dismiss. Respondent’s Answer was filed May 6,

1970.4

Petitioners on July 17, 1970 filed a Motion for Partial

Summary Judgment, which was heard on September 10,

1970. Petitioners requested inter alia the entry by the court

of:

“2. An order directing defendant to adjust stand-

ards of need dollar maximums effective July 1, 1969 in

eomplianee with 42 U.S.C. § 602(a)(23) and further

3. Not until October 17, 1969 did H.E.W. issue the Criteria

for adjusting the standard of need. 45 C.F.R. (233.20(a) (2) (ii)

4. This delay was the result of Petitioners’ uncertainty regard-

ing the effect of this court’s decision holding valid Maryland’s

maximum grants in Dandridge v. Williams, 397 U.S. (1970) and

the court’s reversal and remand of Kaiser v. Montgomery re Cali-

fornia’s maximum grant statute, Welf. & Inst. Code § 11450(a).

5

directing defendant to give notice to all members of

plaintiff’s class of their entitlement to illegally withheld

benefits.”

“4. Pending compliance with § 402(a) ( 23), an order

directing the defendant to immediately increase the

dollar maximums by at least thirty (30) percent to

avoid further irreparable injury to plaintiffs.”

Respondent’s Opposition to Motion for Partial] Summary

Judgment and Preliminary Injunction was filed August 28,

1970. The motion was heard and the Partial Summary

Judgment entered on September 11, 1970. (Pet. Appendix

B)

It was respondent’s understanding that the Partial Sum-

mary Judgment ordered only prospective compliance with

section 402(a)(23) of the Social Security Act. In accord-

ance with this assumption proposed regulations providing

for a 21.4% increase in the maximum grants with payments

at a fixed percentage of the standard of need (ratable

reduction) were submitted to the court on October 29, 1970

captioned “Compliance with Partial Summary Judgment

of September 11, 1970”. This assumption was based on the

coart’s Memorandum Decision (Pet. Appendix C) which

states “nor does the court purport to tell the State of

California how much it shall pay. The court merely holds

that if the State of California participates in such program

it must comply with federal law.”

A hearing was held before the single judge on October

29, 1970 which resulted in the Amended Partial Summary

Judgment which was entered on November 17, 1970.°

5. The District Court requested the views of the United States

Department of Health, Education and Welfare. An amicus curiae

brief was filed on October 29, 1970, a supplemental brief was filed

on November 6, 1970 and an addendum on December 18, 1970

advising the court that California’s regulations were acceptable.

6

Respondent was ordered to immediately increase the

maximum grants by 21.4% and AFDC grants be increased

by said amount retroactive to October 1, 1970 pending

compliance with section 402(a)(23). Respondent was en-

joined from adopting or enforcing regulations which would

reduce or otherwise affect the ordered increases in dollar

maximums and aid grants by a ratable reduction applied

retroactively from the date of promulgation.

The cour. ordered the withholding of all federal funds

under Title IV of the Social Security Act in the event of

non-compliance and reserved the right to order such in-

creases retroactive to July 1, 1969.

In the same judgment dated November 17, 1970, the Dis-

trict Court stated that it did not purport to decide the

question of the authority of respondent tv affect future

AFDC grants by prospective ratabie reductions in the need

standards used for computing the grants, noting that the

istrict Court “considers this question to be an issue to

be appropriately adjudicated by a state rather than a fed-

eral court.” This judgment contained the certified question

permitting appeal to the Court of Appeals.

On November 19, 1970 respondent adopted as emergency

regulations EAS §§ 44-212 (the increased standards of

need), 44-313 (increasing the statutorily set maximums in

Welfare and Institutions Code section 11450(a) by 21.4%),

and 44-315 (the prospective ratable reduction) These were

filed with the District Court for approval on November 24,

1970.

On or about November 19, 1970, a class action for injunc-

» tive and declaratory relief and for a writ of mandate was

7

commenced in the Superior Court for the County of Sacra-

mento, entitled California Welfare Rights Organization, ei

al., v. Martin, etc., Civil No. 207231. Plaintiffs, including

petitioners, sought to permanently enjoin respondent here-

in from implementing or enforcing any or all of the three

regulations referred to in the preceding paragraph and to

mandate appellant to pay the full standard of need on the

ground that the District Court had invalidated the legis-

latively set maximums and that appellant had no authority

to increase or decrease those maximums.®

The respondent, Director of the State Department of

Social Weifare, on November 23, 1970, filed in the Court

of Appeals a timely Petition for Permission to Appeal

under 28 U.S.C. 1292(b) together with an application for

a stay. Permission to appeal and a stay were granted on

December 18, 1970. On May 27, 1971 the Court of Appeals

issued its order reversing and remanding the District

Court’s Partial Summary Judgment, as amended. In that

order the Court of Appeals suggested that the District

Court should take a more deliberate approach. The District

Court was advised to consider: (1) the strain on the budget

of the State of California (2) preindice to the members

oi the class due to a straightened budged (3) to give the

California Legislature an opportunity to respond to the

inducements Congress provided to abolish the maximum

grant system or to continue it since it is now clear that

respondent alone cannot make that decision. California

6. This contention, at variance with petitioners’ position before

the federa] court, was rejected by the California Supreme Court.

California Welfare Rights Org. v. Carleson, 4 Cal. 3rd 445 (1971). °

8

was given until July 1, 1971 to present complying regu-

lations.

California filed with the District Court regulations in-

creasing the maximum grants by 21.4% which were put

into effect June 1, 1971. The District Court on August 10,

1971, found California in full compliance with section 402

(a) (23) of the Social Security Act and denied petitioners’

request for retroactive relief to July 1, 1969.7

B. State Court Proceedings.

Proceedings were brought in the California State Courts

which were resolved on Mareh 25, 1971 by the California

Supreme Court.6 That court held that the Director of the

State Department of Social Welfare under state law was

authorized to comply with the Social Security Act increas-

ing the legislatively set maximum grants by 21.4%. The

court also held the Director could not without legislative

authority institute a ratable reduction in welfare payments

based on a percentage of the standard of need aithough

this method of payment would be acceptable to HEW and

bring California into conformity. The California court,

recognizing respondent’s fiscal dilemma, stated “[I]n the

premises we deem it appropriate to refer the Director of

the Department of Social Welfare to the Legislature for

relief.” 4 Cal.3rd at 459.

C. Department of Health, Education and Welfare Conformity

Proceedings.

The Secretary of the Department of Health, Education

and Welfare pursuant to 42 U.S.C. $ 1316, on or about July

7. Appendix page 2.

8. California Welfare Rights Org. v. Carleson, 4 Cal. 8rd 445

(1971).

9

8, 1970, notified the Director of the California State Depart-

ment of Social Welfare that the question of California’s

compliance with the requirements of section 402(a) (23) of

the Social Security Act would be heard by a hearing officer

at an administrative hearing. The hearing was held on

August 25 and 26, 1970 in San Francisco. The final decision

by the Department was issued on January 8, 1971 by John

D. Twiname, Administrator of Social and Rehabilitative

Services of the Department of Health, Education and Wel-

fare. In this decision, the State of California was found to

be cut of conformity with section 402(a) (23) of the Social

Security Act. This decision also ordefed the withholding

as of April 1, 1971, of all federal contributions to the State

of California for the operation of the aFDC program in

this state.

By order also dated January 8, 1971, Mr. Twiname with-

drew the earlier decision which ordered the cessation of

federal contributions to the California AFDC program.

The withdrawal order was based on the pending resolution

of state law by the California Supreme Court.

Respondent herein submitted to HEW regulation KAS

42-313 raising the maximum grants by 21.4% as of June i,

1971. Mr. Twiname found California in compliance with

section 402(a)(23) and withdrew this issue.

REASONS FOR DENYING THE WRIT

The principal issue presented by petitioners is whether

the District Court’s remedies in enforcing compliance with

section 402(a)(23) of the Social Security Act is limited to

an order terminating federal funds (Petition 9:5-12). This

issue has Leen mooted by the District Court’s order of

August 10, 1971 on remand. The District Court made clear

that although the Court of Appeals decision cast serious

10

doubt on the jurisdiction and power of the court to order

retroactive payments that if it did have such power relief

would be denied on equitable grounds.

A. The Decision of the Court of Appeals Reversing the District

Court's Interim Relief Order Pending State Compliance with

the Social Security Act Is in Accord with the Decision of

- this Court in Rosado v. Wyman.

In Rosado v. Wyman, 397 U.S. 397 (1970) this court or-

dered prospective compliance with section 402(a)(23) by

New York within a reasonable period of time for it to

submit to the District Court a conforming plan.

This court remanded wi. the following precise instruc-

tions:

“We remand the case to the District Court to fix a

date which will afford New York an opportunity to

revise its program in accordance with the require-

ments of § 402 if it wishes to do so. The District Court

shall retain jurisdiction to review ... any revised pro-

gram adopted by the State, or, should New York

choose not to submit a revamped program by the deter-

mined date, issue its order restraining the further use

of federal monies pursuant to the present statute.” 397

US. at 421-422.

On remand of Rosado v. Wyman by this Court to the

District Court, District Judge Weinstein in a Memorandum

and Order dated October 29, 197Q, in giving prospective

effect only to his order, had no doubt as to this Court’s

meaning and intent. 322 F. Supp. 1173 (B.D. N.Y. 1970)

“Plaintiffs seek to invoke the equity powers of this Court

to grant plaintiffs and other members of their class the

amounts they would have received, over and above what

they actually did receive, if the State’s AFDC payment

schedules had been in compliance with section 402 since

11

July 1, 1969. Under the mandate of the Supreme Court,

this Court lacks power to grant such relief. The mandate

is quite clear: either approve the State’s program or re-

strain the further use of federal monies in the State’s

AFDC program. It stated explicitly that:

‘The District Court shall retain jurisdiction to re-

view ... any revised program adopted by the State,

or, should New York choose not to submit a revamped

program py the determined date, issue its order re-

straining the further use of federal monies pursuant

to the present statute.’ Rosado v. Wyman, 397 U.S.

397, 421-22, 90 Sup. Ct. 1207, 1222 (1970).

“This is no idle dictum. As the differences within both

the Second Circuit panel and the Supreme Court made

clear, a primary issue in the litigation was whether the

courts should abstain completely and, if not, how deeply

they should become engaged in a state-federal welfare

issues. Concern over the strong implications for federalism

implicit in congressional decisions to encourage state ad-

ministered AFDC programs undoubtedly motivated the Su-

preme Court to emphasize that the State was to be given

a choice,

“Supporting this ecnclusion is the fact that the Supreme

Court afforded the State time to revise its program before

the district court was empowered to consider a restraint on

the further use of federal money in the State AFDC pro-

gram. Rosado v. Wyman, 397 U.S. 397, 421-22, 90 Sup. Ct.

1207, 1222 (1970). If a remedy for underpayments had, in a

sense, vested, this limitation on the district court’s power

would have been inappropriate.” Rosado v. Wyman, 322

F.S. at 1195, 1196.

Petitioners’ attempt to distinguish this court’s decision

in Rosado from California’s situation is based on three un-

Sees salar ow 82 Fe

Sas \qeneea cai PMNs enantio th as ey deci

inte’

eee

paeasst se tel

12

tenable grounds: (1) the necessity to solve New York’s

attendant factual problems in determining special needs

(2) New York made a good faith attempt to comply with

section 402(a)(28) prior to July 1, 1969 and (3) the court

could enjoin enforcement of the California maximum grants

statute and presumably direct payment of full need whereas

in Rosado there was no severable provision in the New

York regulations. .

Respondent submits that California comes before this

eourt with cleaner hands than New York did in Rosado and

with a far more complex legal situation. There has been no

blatant defiance of federal law.

1. California Did Not Know Whether it Had « Maximum Grant Table

Subject to the Increcses Required by the Socisi Security Act.

In Aaiser v. Montgomery, 319 Fed, Supp. 329 (N.D. Cal.

1969), vacated and remanded 397 U.S. 595 (1970), plaintiffs

and their class challenged the constitutionality of Cali-

fornia’s maximum grant statute (Welf. & Inst. Code

§ 11450(a)). This action was filed on July 16, 1968. The

three-judge Distriet Court on August 28, 1969 held that Cal-

ifornia’s maximum grant statute was unconstitutional in

that it violated equal protection of the laws. The Court

stayed its order pending appeal to the United States Su-

preme Court. Until the Supreme Court’s decision in Dand-

ridge v. Williams, 397 U.S. 471 (April 10, 1970) every lower

eourt that had considered maximum grants had held them

unconstitutional. See Kaiser v. Montgomery, 319 F. Supp.

at 333. California obviously did not know whether it still

had maximum grants that needed to be raised to comply

with section 402(a)(23). Following remand by this Court

respondent herein filed a motion to dismiss the Kaiser ease.

This motion was opposed by plaintiffs who still maintained

13

that there was no rational basis for the California statute.

Not until June 10, 1971, pursuant to plaintiffs’ agreement

to dismiss that case was a stipulated dismissal filed.

California’s knowledge of its obligation under section

402 (a) (23), despite the affidavit of the former Chief, Income

Maintenance Division, State Deparument of Social Welfare,

an expert in fields other than law,® was beclouded by the

District Court’s Aaiser decision, and the plaintiffs’ therein

vigorous opposal to dismissal.

2. New York's Alleged "Goed Faith" Atterpt to Comply.

New York’s “good faith” attempt to comply with section

402(a)(23) resulted in savings of almost forty million

dol..rs. Rosado v. Wyman, 397 U.S. at 416. This Court

stated “We reach our conclusions without relying on the

finding made by the court below that in § 131-a New York

was attempting to constrict its welfare payments. Specula-

tion as to legislative and executive motive is to be shunned.”

(¢mphasis the Court’s) 397 U.S. at 419. California’s failure

to comply did not result in any savings whatever. Cali-

fornia’s proposed conforming regulations did not entail

spending any less money but would have equitably appor-

tioned the sums appropriated by the legislature for the

AFDC program between the “haves” (recipients with out-

side income) and the “have nots”, Respondents’ authority

to meet the need standard thereby was rejected by the Calif.

Sup. Ct.

The California Supreme Court in CWRO v. Carleson,

4 Cal. 3rd 445 (1971) rejected petitioners’ contention that

the District Court’s Partial Summary Judgment invalidated

maximum grants thus requiring full need to be met. That

9. Petition 4:10-23.

14

court held that respondent Carleson had the authority, by

regulation, to increase the dollar maximums but he had

no authority to impose a ratable reduction without state

legislative authority. Further the court held respondent

had no authority to exceed his budget. Recognizing respond-

ent’s dilemma the court stated,

“{In] the premises we deem it appropriate to refer the

Director of the Department of Social Welfare to the

Legislature for relief.” (4 Cal. 3rd at 459).

B. The Decision Below, in Accord with Rosado, Does Net Con-

flict with Other Decisions of this Court or Other Courts of

Appecl.

In each of the welfare cases relied upon by petitioners

in support of the award of retroactive benefits the injury

caused by the non-conforming statute or regulation was

ascertainable. In Wyman v. Rothstein, 398 U.S, 275 (1970)

the court reviewed and affirmed the issuance of a prelimi-

nary injunction by a three-judge court (Rothstein v. Wy-

man, 303 F.Supp. 339, (S.D.N.Y. 1969) ) on the grounds that

the differential between allowance levels established for

welfare recipients in New York City and those in surround-

ing counties was unsupported by any evidence of a cost dif-

ferential and hence violated the federal requirement for a

statewide uniform standard. To the same effect Boddie v.

Wyman, 484 Fed. 2d 1207 (2d Cir. 1970). In Solman v.

Shapiro, 300 F. Supp. 409 (D. Conn. 1969) aff’m’d. 90 S. Ct.

25, (retroactive payments of amounts wrongfuliy withheld

pursuant to invalid step-parent regulation), Doe 7. Shapiro,

302 F. Supp. 761 (D. Conn. 1969) (retroactive benefits

awarded because of termination for refusal to name the

father of the child) and Grubb v. Sterrett, 315 F. Supp.

990 (N.D. Ind. 1970) (invalid stepfather regulations as in

2 Sidon

15

Solman v. Shapiro) the plaintiffs were referred to the

welfare department to permit that department on a case

by case basis to determine the amount of benefits wrong-

fully withheld. A similar procedure was followed after the

decision in Lewis vy. Martin, 397 U.S. 552 (1970) which

invalidated California’s stepfather statute. These cases

concerned a small number of the AFDC caseload with a

relatively small fiscal impact and with ascertainable en-

titlement to retroactive benefits.” None of these factors

are present in the instant proceeding. See Adens v. Sailor,

312 F. Supp. 923, 927 (12.D. Pa. 1970) wherein the State was

given sixty days within which to comply.

C. The Court of Appeals Correctly Required the District Court

to Act as a Court of Equity Should and Weigh the Cense-

quences of Granting Retroactive Relief.

The Court of Appeals by directing the District Court to

consider the strain on the budget of the State of California

and prejudice to the members of the petitioner’s class due to

a straightened budget, in granting relief, ordered that court

to re-assess its finding that petitioners herein were suffering

irreparable injury attributable to respondent’s failure to

fully impiement section 402(a) (23). The Court of Appeals

was cognizant of the rejection by Congress of the adminis-

tration’s proposal that the state must meet in full its stand-

ard of need. Rosado v. Wyman, 397 U.S. at 419. Section 402

(a) (23) only requires the maximums to be increased to re- -

flect the rise in the cost of living since the maximums were

—_—_—

10. In Lewis v, Martin, 397 U.S. 552, 560 (1970), on remand,

the three-judge court ordered retroactive benefits from the date

of this court’s order not from the date of HEW’s adoption of

the regulation. See Petition page 11 fn.

11. Sullivan v, Inttle Hunting Park, Inc., 396 US. 224 (1970)

16

last adopted. There was no requirement that the maximums,

when last adopted, should meet the state set standard of need.

(Dandridge v. Williams, 379 U.S. 471 (1970) ). There was no

requirement that the prior state established standard of

need accurately reflect the cost of living at that time. Con-

sequently if, prior to July 1, 1969, a state’s standard of need

did not in fact meet subsistence costs, adjusting the stand-

ard to reflect fully changes in living costs since the standard

was established would still result in a standard of need less

than the actual cost of living. Regrettable, as the State

Legislature’s failure to adjust upward welfare grants in the

face of the alleged malnutrition among welfare recipients,

section 402(a) (23) does not purport to remedy this inequity.

The District Court following remand by the Court of

Appeals held that regardless of any constrictions placed by

thai court on its authority to order retroactive payments and

assuming that the court has such powers “it must act as a

court of equity and is therefore required to balance the

state’s prior uniawful action with a desperate fiscal and

budgetary realities faced by the state in the administration

of its welfare program as set forth in the affidavit of

Charles Hobbs, Chief Deputy Director of the State Depart-

ment of Social Welfare.” (emphasis added)

“Tt must also take into consideration the interests of

welfare recipients who have been denied monies to which

they are entitled.

“Finally, it must consider the effect of retroactive pay-

ment on present and future welfare recipients. Retroactive

payment would cost the state something in the area of an

additional $90 million dollars.

“While the court recognizes the plight of welfare recip-

ients, including the gross disparity between their actual

needs and the amounts paid to them, it cannot in good con-

science conclude that their interests are best served ordering

this expenditure.

“The fiscal crisis this would cause in the State of California

would likely result in welfare cutbacks beyond the imag-

ination of the parties here or the court.

“While the state has no one to blame but itself for being

thrust on the brink of bankruptcy in the administration of

its welfare program, this court will not push it over the

edge.”

In the face of the District Court’s holding, reversal of the

Court of Appeals’ decision by this court would lead to no

further benefits to the petitioners herein.

Petitioners’ counsel has advised the District Court Judge

that he will dismiss the remaining causes of action and obtain

a final, appealable judgment on the first and second causes

of action. Petitioners have indicated that they will appeal

that judgment and will ultimately seek review by this Court.

Under these circuinstances the issues presented herein by

petitioners may, if this court deems of sufficient importance,

be then reviewed.

CONCLUSION

The petition, if not held totally lacking in merit, is clearly

premature and should be denied.

Dated: October 12, 1971

Respectfully submitted,

EVELLE J. YOUNGER

Attorney General of the

State of California

ELIZABETH PALMER

Deputy Attorney General

6000 State Building

San Francisco, California 94102

Telephone: (415) 557-0266

Attorneys for Respondent

(Appendix Follows)

Appendix

Original Filed Aug. 10, 1971

Clerk, U.S. Dist. Court San Francisco

United States District Court

For the Northern District of California

Civil Action No. 51909 AJZ

Dorothy Bryant, et al.,

Plaintiffs,

Vv.

Robert B. Carleson, etce.,

Defendant.

ORDER APPROVING DEFENDANT’S COMPLIANCK

PROGRAM; OxwDER DENYING RETROACTIVE

RELIEF; SATISFACTION OF PARTIAL

SUMMARY JUDGMENT, AS AMENDED

This matter came on to be heard on July 29, 1971 at

1:30 p.m. before the Honorable Alfonso J. Zirpoli for deter-

mination as to whether the State of California is now in

compliance under the First and Second Causes of Action

with section 402(a) (23) of the Social Security Act, 42 U.S.C.

602(a) (23). The State of California’s program having been

considered by the court in accordance with the instructions

of the Court of Appeal, the court finds the State in full

compliance with the requirements of Section 402(a) (23) of

the Social Security Act and the court finds:

1. That January 1, 1962 was the last date maximum

grants were established for purposes of said section 402

(a) (23).

2. The 21.4 percentage of living costs increase since

January 1, 1962 as determined by the State is correct.

2 Appendix

3. The State’s program was put into effect June 1, 1971,

and

4. The standard of need has been properly adjusted.

Now Tuererore, It Is Orpverep that the State of Cali-

fornia is in compliance with section 402(a)(23) of the

Social Security Act and the Partial Summary Judgment

entered as to the First and Second Causes of Action on

September 11, 1970 as amended on November 17, 1970,

December 18, 1970, and February 26, 1971 has been satis-

fied, and

Iv Is Furtuer Orperen that plaintiffs’ request that de-

fendant be required to inake payments in accordance with

section 402(a) (23) retroactive to July 1, 1969, the effective

date of said Section, is denied.

Dated: Aug. 10, 1971

Auronso J. Zirprout

Alfonso J. Zirpoli

United States District Judae

baer ores ty a ae ae a ee

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