# Petitioners Reply Brief — Wilson v. Deitz > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0851%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1972 - **Citation:** 408 U.S. 928 ## Text -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 ie el OO ee ger: at tele, es Bi ee Eh pyre tee eetatintatetie bots See ne aetna r theme atte OP PERS Barts Me Pets oe a Kemnenter es ee ee ee ee ee eee 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0851%3A4. Public record. Not legal advice.