Petitioners Reply Brief — Wilson v. Deitz

-SOPREM = Se

IN THE

SUPREME COURT OF THE UNITED STATES

No. 71-1475

FRED E. WILSON, - - —.* - Petitioner

versus

MERRITT 8S. DEITZ, JR., Commissioner,

Department of Economic Security, Di-

vision of Public Assistance, Common-

wealth of Kentucky, - - - Respondent

On Petition For Writ of Certiorari to United States Court of

Appeals For Sixth Circuit

PETITIONER’S REPLY BRIEF

ROBERT L. BERTRAM

West Cumberland Avenue

Jamestown, Kentucky 4262!)

MARTIN R. GLENN

Legal Aid Society of Louisville

422 West Liberty Street

Louisville, Kentucky 40202

Counsel for Petitioner

WESTERFIELD-BONTE CO., INC., 619 W. KENTUCKY, LOUISVILLE, KY.

INDEX

PAGE

GED GUS ou accccesecenPeacenssssanbeses 1

PURPOSE OF THIS BRIEF... .................. 1

GEE 6.0 cacecosscvatincccadessannecsebaes 2-7

1. Respondent's Procedure Is Not In Compliance

Ween ET Uh Ge nccccccescoccoccooceses 2-3

Merriwether v. en ee Oe, 439 F. 2d

Dis ciibbbettinudssaseeneseedseersese<..

Mott v. Betit (USDC. Dist. Vermont—Civil No.

A SSS eee

meas Central Hanover Bank and Trust Co., 399

S. 306 i iinebibakieteebathenedes see

d

SUPREME COURT OF THE UNITED STATES

October Term 1971

.

oer Se eee wer wes ot

No. 71-1475

Frep E. Witson, - - - - = Petitioner

v.

Merrirr S. Derrz, Jr. Commissioner,

Department of Economic Security,

Division of Public Assistance, Com-

monwealth of Kentucky, - - - Respondent

Ja ;

PETITIONER'S BRIEF IN REPLY TO RESPONDENT'S

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERITORARI TO UNITED

STATES COURT OF APPEALS

FOR THE SIXTH .

CIRCUIT

OPINION BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit, referred to at page 1 of the pe-

tition for a writ of certiorari, has now been reported

at 456 F, 2d 314.

PURPOSE OF THIS BRIEF

The purpose of this reply brief is to show that ar-

guments raised in the respondent’s brief are without

merit, and to correct mis-statements of law and fact

contained therein.

ARGUMENT

1. Respondent’s Procedure is Not in Compliance With

Goldberg v. Kelly

Respondent's brief (page 4) states that “‘At the

time Wilson and his class were removed from the rolls,

the Kentucky Agency had not had time to implement

the new procedures required by Goldberg.”’ That is

not true. Goldberg v. Kelly, 397 U. 8. 254, 25 L. Ed.

2d 287, 90 S. Ct. 1011, was decided March 23, 1970.

The petitioner’s grant was terminated effectice July

1, 1970. Respondent did not reinstate the petitioner

or any member of the class, or make retroactive pay-

ment, until compelled to do so by the order of the Dis-

trict Court entered December 24, 1970.

Respondent's brief (page 2) elaims that the Ken-

tucky welfare agency became in compliance with the

Goldberg decision by restoring to the welfare rolls and

paying retreactively, all persons who, having requested

@ pre-termination evidentiary hearing, were removed

from the rolls without such a hearing. That is untrue.

Compliance with the Goldberg requirement of a pre-

termination evidentiary hearing is not contingent upon

a request therefor by the welfare recipient. The state-

ment in: respondent's brief, referred to above, is an

admission that numerous welfare grants have been

terminated where the recipients have not expressly re-

quested pre-termination evidentiary hearings, and that

such persons have not been restored to the rolls or re-

ceived retroactive payments. The respondent has con-

tinued to follow that policy, which is contrary to the

3

Goldberg decision and in violation of the due process

provisions of the Fourteenth Amendment of the United

States Constitution.

2. Class Action Aspects are Presented for Review

Respondent's brief (page 4) states that the peti-

tioner was finally granted an evidentiary hearing upon

his express request therefor, as a result of which his

benefits were terminated. That is untrue. The de-

cision of the hearing officer was in favor of the peti-

tioner, but it was reversed by the respondent upon

review by him. That case is now pending on appeal

in the state court.

It should be borne in mind that this federal court

case is a class action. The opinion of the United States

Court of Appeals noted that ‘ Appellant’s complaints

in this court, however, are with the class action aspects

of this case’’ (see Appendix 1 to Petition for Writ of

Certiorari, page 12). Numerous persons who are mem-

bers of the class represented by petitioner Wilson are

affected by this federal court ease (see Appendix 2 to

Petition for Writ of Certiorari, pages 16-18).

3. Express Objection to Termination and Request for

Hearing is Not Required ~

Respondent's brief (page 3) states that petitioner’s

counsel has been unable to point out to the United

States Court of Appeals or to this Court anything in

the Goldberg case that says- that ‘‘a hearing must be

conducted, even though the recipient has not requested

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4

one or objected to the termination.’”’ That is not true.

Although the factual issues in the Goldberg case may

not have involved the precise question, counsel for the

petitioner have consistently and vigorously argued in

the District Court, and in the Court of Appeals, and

‘in this Court, that the whole tenor, import and effect

of the Goldberg decision is to require a pre-termination

evidentiary hearing before welfare benefits can be dis-

continued, and that failure of a welfare recipient to

expressly object to termination, or to expressly request

an evidentiary hearing thereon, does not constitute a

consent te termination.

Respondent’s brief (page 4) cites Grannis v.

Ordean, 235 U. 8. 385, 394, as holding that the requisite

of due process of law is the opportunity to obtain a

hearing. In the later case of Mullane v. Central Han-

over Bank and Trust Co., 339 U. 8. 306, 70 8. Ct. 652,

94 L. Ed. 865, this Court cited and amplified the

Grannis case as follows:

***The fundamental requisite of due process of law

is the opportunity to be heard.’ Grannis v. Ordean,

234 U.S. 385, 394, 34S. Ct. 779, 783, 58 L. Ed. 1363.

This right to be heard has little reality or worth

unless one is informed that the matter is pending

and ean choose for himself whether to appear or

default, acquiese or contest.”’

This Court has never held that a requgst for a hear-

ing is a condition precedent to the right to a hearing

under,the due process clause of the Fourteenth Amend-

ment. See: Sniadach v: Family. Finance Corp., 395

U. S. 337, 343, 89 S. Ct. 1820, 1823, 23 L. Ed. 2d 349;

;

« : ae

a eS a ne ee

5

Goldberg v. Kelly, 397 U.’S. 254, 90 S. Ct. 1011, 25

L. Ed. 2d 287; Wisconsin v. Constantineau, 400 U. S.

433, 27 L. Ed. 2d 515, 91 8. Ct. 507; Bell v. Burson, 402

U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586.

Lower courts have not interpreted the above deci-

sions of this Court as requiring a request for a hearing

as a condition precedent to the right to a hearing under

the Fourteenth Amendment. See: Pack v. Deitz, Com-

misstoner (Kentucky Court of Appeals) 455 8S. W. 2d

575; Laye vy. Downing, (U.S.D.C. So. Dist. Iowa) 314

F. Supp. 904; Merriwether v. Burson (U.S.D.C. No.

Dist. Georgia) 325 F. Supp. 709, affirmed 439 F. 2d

1092; Mott v. Betit (U.8.D.C. Dist. of Vermont) Civil

Action No. 6100, all holding that an evidentiary pre-

termination hearing is required before discontinuance

of welfare benefits. Wright v. Finch, Secy., (U.S.D.C.

Dist. of Columbia) 321 F. Supp. 383, holding an evi-

dentiary pre-termination hearing is required before

discontinuance of social security benefits. Crowe v.

California Department of Human Resources, (U.S.D.C.

No. Dist. California) 325 F. Supp. 1314, holding that

termination of unemployment compensation requires

a prior evidentiary hearing. Holt v. Brown (U.8.D.C.

West’n Dist. Kentucky) 336 F. Supp. 2; Santiago v. .

McElroy (U.8S.D.C. East’n Dist. Pennsylvania) 319 F.

Supp. 284, and Hall v. Garson (5th Cir.) 430 F. 2d

430, all holding invalid state distress for rent statutes

that did not provide for pre-seizure evidentiary hear-

ings. Laprease v. Raymours Furniture Co., (U.S.D.C.

No. Dist. N.Y.), 315 F. Supp. 716, holding invalid a

state replevin statute that did not provide for a pre-

i it ha ery re

6 .

seizure evidentiary hearing. Numerous other deci-

sions of lower federal and state courts have failed to

interpret the Supreme Court decisions cited above as

making a request for a hearing a condition precedent

to the right to a hearing. The.opinion and judgment -

of the United States Court of Appeals for the Sixth

Circuit, which petitioner seeks to have reviewed by this

Court, is unique in that it appears to be the only deci-

sion making a request for a hearing a condition prece-

_ dent to the right thereto.

Respondent’s brief (page 5) states that a request

for a pre-termination hearing is required by regula-

_ tions adopted by the U. 8S. Department of Health, Ed-

ueation and Welfare. It is of course axiomatic that

neither statutory enactments nor administrative regu-

lations thereunder can over-ride constitutional guar-

antees of due process of law.

4. Die Process Includes Judicial Review

Respondent’s brief (pages 6-7) states that if wel-

fare recipients are continued on the welfare rolls pend-

ing judicial appeal, virtually every case of termina-

tion of welfare benefits would ultimately be appealed

to this Court. That is not true. .

The right to judicial review is an indispensable con-

comitant to the right to an administrative hearing. Es-

pecially where, as in the Kentucky welfare hierarchy,

hearing officers are not impartial, legally-trained ref-

erees, and frequently have their decisions summarily .

overruled and reversed by the administrative head of

the agency. Welfare benefits terminated in the ad-

|

-

ministrative -process should be continued during the ?

time that the recipient has in which to seek at least

one judicial review and also during the time that such

an appeal to the appropriate court is pending.

As said by this Court in the Goldberg case, the need

to protect the public’s tax revenues must be balanced

agaist the individual’s overpowering need not to be

wrongfully deprived of assistance, and weighed in

favor of the destitute welfare recipient whose brutal

need for survival outweighs governmental fiseal as-

pects. ‘The stakes are simply too high for the welfare

recipient, and the possibility for honest error or irri-

table misjudgment to great.’’ Goldberg vy. Kelly, 397

U. 8. 261, 265, 266; 90 S. Ct. 1017, 1019.

CONCLUSION :

For the reasons set out herein and in the petitioh

for a writ of certiorari, there should issue a writ of

certiorari to review the judgment and opinion of the

United States Court of Appeals for the Sixth Circuit.

Respectfully submitted, . :

Rosert L. Bertram

West Cumberland Avenue

Jamestown, Kentucky 42629 i

Martin R. GLENN :

Legal Aid Society of Louisville —

422 West Liberty Street

Louisville, Kentucky 40202

Counsel for Petitioner

June 12, 1972