Amicus Curiae Brief — Brown v. Woolfolk

CC SEP 28 1972

IN THE MICHAEL RODAK, JR..CLERK

Supreme Court of the United States

October Term, 1971

No. 1579

OTIS L. BROWN, Director of the Department of Welfare

and Institutions et al.,

Petitioners,

against

VIVIAN WOOLFOLK, et al.,

Respondents.

Certionart TO THE Unrrep States Court or APPEALS,

Fovrtrs# Crecvit

BRIEF OF LOUIS J. LEFKOWITZ,

ATTORNEY GENERAL OF THE STATE OF NEW YORK,

AMICUS CURIAE, IN SUPPORT OF THE PETITION

FOR CERTIORARI

LOUIS J. LEFKOWITZ

Attorney General of the State

of New York

Amicus Curiae in Support of

the Petition

The Capitol

Albany, N. Y. 12224

Rutu Kessier Tocn

Solicitor General

Jean M. Coon

Assistant Solicitor General

of Counsel

BATAVIA TIMES, LAW PRINTERS,

BaTaven, HT cat Pog

——

TABLE OF CONTENTS

Interest of the Amicus Curiae

Argument: Whether or not a statute conflicts with the

Supremacy Clause of Article VI of the Constitution

of the United States depends on whether Congress,

expressly or by the extent of the Federal statute, has

totally occupied the particular field. Where, as in

the case of the WIN program, Congress has provided

for employment or training for only a minimal num-

ber of employable welfare recipients, it cannot have

intended to so occupy the field of employment refer-

ral so as to bar State supplemental programs ...... 2

Conclusion

TABLE oF AUTHORITIES.

CONSTITUTION.

U.S. Constitution, Article VI

Statute CIiration.

U.S. Social Seeurity Act, 42 U.S.C. ........ 7, 8,9, 10, 11

Case CITATIONS.

Bueno v. Juras, F. Supp. —__ (D.C. Ore., 1972) . 3,9

Chrysler Corp. v. Rhodes, 416 F. 2d 319 ............ 5

Dandridge v. Williams, 397 U.S. 471 .............--. 8

Dublino v. N. Y. State Department of Social Services,

F. Supp. (U.S. D.C. W. D. N. Y. 7/29/72). 3,9

Engineer v. Chicago R.1. d R. R. Co., 382 U.S. 423 .. 5

Florida Lime & Avocado Growers, Inc. v. Paul, 373

ee et ied Ria din eek es ommedes 6

Ruron-Portland Cement Co. v. City of Detroit, 362 U.S.

ates Kee digas an wage 6 eee andes ten ak weneiee +

New Mezico Bd. of Examiners v. Roberts, 70 N. M. 90,

SE ic hoe ca se eg etna 06 made ob Kes 5

Schwartz v. Texas, 344 U.S. 199 ...............0006- 5

—

IL.

PAGE

Snell v. Wyman, 281 F. Supp. 853, affd. 393 U.S. 223. 8

Woolfolk v. Brown, 325 F. Supp. 1162, affd. 456 F. 2d

652

Sphubeusbedheceed wads dtnacdina nian kaeee 3,4

ARTICLES AND TEXTs.

we acces

ere ee eee eee eee ene

,

IN THE

Supreme Court of the United States

October Term, 1971

No. 1579

OTIS L. BROWN, Director of the Department of Welfare

and Institutions, e¢ al.,

Petitioners,

against

VIVIAN WOOLFOLE, et al..,

Respondents.

CERTIORARI TO THE Unttrep Srares Court or APPEALS,

Fourts Circvitr

BRIEF OF LOUIS J. LEFKOWITZ,

ATTORNEY GENERAL OF THE STATE OF NEW YORK,

AMICUS CURIAE, IN SUPPORT OF THE PETITION

FOR CERTIORARI

Interest of the Amicus Curiae

While the petitioners and respondents here are officials

and residents of the State of Virginia and while the case

involves construction of a statute of the State of Virginia,

the decisions of the District Court and of the Court of

Appeals for the Fourth Circuit have been cited and follow-

ed as persuasive precedent by Courts of other jurisdictions.

In holding New York State’s work referral amendments

to the New York Social Services Law invalid as in con-

flict with the Federal Social Security Act, specifically those

provisions relating to the WIN program (Work Incentive

Program), and unconstitutional as in conflict with the

9

“

Supremacy Clause of Article VI of the Constitution of the

United States, the United States District Court for the

Western District of New York cited the lower Court de-

cisions in this case as authority for its holding, although

the state statutes were not the same. The State of New

York is appealing that decision to this Court.

The decision in this case has been cited by Courts in juris-

dictions other than New York and thus has an effect for be-

yond the interests of the parties to the case itself. In

view of the far reaching effect of the decisions in this case,

the amicus here urges this Court to accept jurisdiction for

the purpose of construing the parameter of state authority

to enact work referral programs for persons receiving

public assistance in federally-aided categories.

ARGUMENT

Whether or not a statute conflicts with the Supremacy

Clause of Article VI of the Constitution of the United

States depends on whether Congress, expressly or by the

extent of the Federal statute, has totally occupied the

particular field. Where, as in the case of the WIN program,

congress has provided for employment or training for

only a minimal number of employable welfare recipients,

it cannot have intended to so occupy the field of employ-

ment referral so as to bar State supplemental programs.

In 1971, the New York State Legislature enacted two bills

providing for work referral programs and public works

project employment for employable recipients of publie

assistance. Because of HEW objections, the public works

employment provisions were not implemented as to re-

cipients of Aid to Dependent Children (AFDC), but only

as to the State’s general assistance category (Home Relief

s

—HR), a non-federally assisted category. The work re-

ferral program generally required all unemployed em-

ployable recipients of public assistance, in both HR and

ADC categories, who were not engaged in full-time voca-

tional training programs to report semi-monthly to the

State Division of Employment for job referral and man-

power services. Those statutes hecame effective July 1,

1971.

An action was commenced in the United States District

Court for the Western District of New York, by order to

show cause, on July 1, 1971 seeking to invalidate New

York’s statutes on the ground that they violated the Thir-

teenth and Fourteenth Amendments to the Constitution of

the United States, as well as that they conflicted with the

Federal Social Security Act and thus, were in conflict with

_ the Supremacy Clause. In its decision, dated July 28,

- 1972, the District Court in the New York case (Dublino v.

New York State Department of Social Services) dismissed

those causes of action which alleged a violation of the

_ Thirteenth and Fourteenth Amendments but found that

New York’s work rules conflict with the Social Security

Act and that the field of employment referral has heen

totally preempted as to Federally aided categories by the

WIN program. In so holding, the Court stated:

3

“Plainiiffs’ second argument, that the Rules are

preempted by the WIN program, has heen suecessful

in recent attacks on analogous state legislation in

Virginia, see Woolfolk v. Brown, 225 ¥. Supp. 1162

(I. D. Va. 1971), aff'd 456 F. 2d 652 (4th Cir. 1972),

and Oregon, see Bueno v. Juras, — — F. Supp.

D. Ove. 1972).

Significantly, the Oregon Court in Bueno hased its decision

on the lower court opinions in the instant case. The New

York Court further cited the District Court opinion in the

instant case wherein it was stated(325 F. Supp. at 1177):

4

“Congress has endorsed the use of the threat of ter-

mination of subsistence level support as a means of

forcing the acceptance of training or employment only

when the job or the training meets specific federal

requirements. State rules seeking roughly similar ends

but differing sharply in means cannot coexist.”

The New York Court thereupon found that it should fol-

low the Woolfolk decision as enunciating the guiding gen-

eral principle of law and held that New York’s work rules

conflicted with the Federal Act and that the entire field

of employment and training of welfare recipients had been

preempted by the WIN program.

Thus, all of the cases which have held state work refer-

ral programs to be invalid under the Supremacy ‘Clause

have been based on the decision in the Court below in the

instant case. The issues presented to the Court in this case,

therefore, extend far beyond the issue of the statute of a

single state, but rather bear upon the implementation of the

welfare programs and welfare reform legislation in all the

states.

The primary allegation at issue in all these cases is

simply that the Federal Social Security Act was intended

to preempt the entire field of welfare legislation, particu-

larly in the areas of employment referral and vocational

training, and that state statutes and regulations in the

same field cannot coexist. Tn this regard, it must be under-

stood that a constitutional conflict does not automatically

result from State and Federal legislation in the same fields.

Preemption requires much more than this.

Thus, in Huron Portland Cement Co. v. City of Detroit

(362 U. S. 440 [1959]), it was held that a Detroit ordinance

designed for the elimination of air pollution was valid

despite Federal inspection laws which prescribed the

method of construction of boilers to be used on sea-going

vessels. This Court said (p. 446) :

5

“We conclude that there is no overlap between the

scope of the federal ship inspection laws and that of

the municipal ordinance here involved. For this rea-

son we cannot find that the federal inspection legisla-

tion has pre-empted local action. To hold otherwise

would be to ignore the teaching of this Court’s deci-

sions which enjoin seeking out conflicts between state

and federal regulation where none clearly exists.

Savage v. Jones, 225 U. S. 501; Welch Co. v. New

Hampshire, 306 U. S. 79; Maurer v. Hamilton, 309

U. S. 598.”

“Tt is well settled” as the First Cireuit Court of Appeals

said in Chrysler Corp. v. Rhodes (416 F. 2d 319 [1969]),

that “where the State’s police power is concerned pre-

emption will not be presumed” (/ngineer v. Chicago R. I.

& R. R. Co., 382 U. S. 423 [1966]).

The rule as to whether a Federal law has preempted

from the State the right to regulate is that the intention

to supersede the State’s police powers must be clearly evi-

denced by the Federal legislation. The intention to regu-

late exclusively will not be implied unless the Federal and

State laws are inconsistent (New Mexico Board of Examt-

ners v. Roberts, 70 N. M. 90, 370 P. 2d 811 [1962]).

The requirement, that a Congressional intent to preempt

a field of legislative concern must be clearly and unequivo-

eally shown, was forcibly stated hy this Court in Schwartz

v. Texas (344 U.S. 199, 202-203 [1952]) :

“If Congress is authorized to act in a field, it should

menifest its intention clearly. It will not be presumed

that a federal statute was intended to supersede the

exercise of the power of the state unless there is a clear

manifestation of intention to do so. The exercise of

federal supremacy is not lightly to be presumed.

“‘The principle thus applicable has been frequently |

stated. It is that the Congress may cireumscribe its 3

regulation and occupy a limited field, and that the

intention to supersede the exercise by the State of

its authority as to matters not covered by the fed-

erai legislation is not to be implied unless the Act

of Congress fairly interpreted is in conflict with the

law of the State.’ Atchinson, T. & 8. F. R. Co. vy.

Railroad Commission, 283 U. S. 380, 392-393. See

Savage v. Jones, 225 U.S. 501, 533.

“Tt should never be held that Congress intends to

supersede or by its legislation suspend that exercise

of the police powers of the states, even when it may

do so, unless its purpose to effect that result is

clearly manifested.’ Reid vy. Colorado, 187 U. S.

137, 148.”

In that case, this Court held that the Federal Communica-

tions Act, which made the disclosure of information secured

by wiretaps a Federal crime, did not prevent the use of

wiretap testimony in State court proceedings, even when

in Federal courts such information was not considered

admissible. When, eventually, wiretap evidence was held

to be generally inadmissible in State court proceedings,

that was done not by holding that the Federal law pre-

empted State law, but rather under other provisions of

the Constitution.

In Florida Lime & Avocado Growers, Inc. v. Pauw (373

U.S. 132 [1963]), this Court held the test of preemption to

be: Does the State regulation impair the Federal superin-

tencence of the field? If there is no collision between the

Federal and the State regulation, the Court said (p. 143):

6

“Thus the present record demonstrates no inevitable

collision between the two schemes of regulation,

despite the similarity of the standards.

“The issue under the head of the Supremacy Clause

is narrowed then to this: Does either the nature of the

7

subject matter, namely the maturity of avocados, or

any explicit declaration of congressional design to

displace state regulation, require 4 792 to yield to the

federal marketing orders?”

The Court stated as a further test of preemption (p. 141):

“Whether a State may constitutionally reject com-

modities which a federal authority has certified to be

marketable depends upon: whether the state regulation

“stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Con-

gress,’ Hines v. Davidowitz, 312 U. S. 52, 67. By that

test, we hold that ¢ 792 is not such an obstacle; there

is neither such actual conflict between the two schemes

of regulation that both cannot stand in the same area,

nor evidence of a congressional design to pre-empt the

field.”

And additionally (p. 142):

“The test of whether both federal and state regula-

tions may operate, or the state regulation must give

way, is whether both regulations can be enforced with-

out impairing the federal superintendence of the field,

not whether they are aimed at similar or different

objectives.”

The Federal Social Security Act does not specifically

preempt the field of social welfare legislation by prohibit-

ing state legislation in the field. In fact, the Act estab-

lishes only minimum federal requirements for State plans

of assistance to certain specific categories of persons in

need of assistance. That it does not cover the entire field

of welfare is apparent from the fact that there are cate-

gories of aid which are totally supported (such as Home

Relief) because the Congress did not see fit to legislate

as to all needy persons. More importantly, this is not the

first case in which the issue of preemption has heen raised

in regard to the Federal Social Security Act and State

statutes or regulation. Both the Federal and the State

8

courts have considered the issue of preemption in the past,

with almost uniform results.

In Snell v. Wyman (281 F. Supp. 853 [S. D. N. Y., 1968},

affd. 393 U. S. 223), the Court considered a New York

statute which provides for recovery of previously paid

welfare benefits from assets of recipients, such as equity in

real estate, bank accounts, proceeds of lawsuits or insur-

ance policies, etc. The Court there held that the Federal

Social Security Act did not prohibit such legislation, either

directly or by implication, and that the State statute was

not rendered invalid simply hecause it did not accord with

the social philosophy of either the plaintiff or the Court

(281 F. Supp. at p. 863).

Less than two years ago, this Court specifically held that

the Federal Act did not preempt the field of welfare legis-

lation, even in areas covered by the Federal Act itself

(Dandridge v. Williams, 397 U.S. 471). Tn that case, hold-

ing valid a Maryland statute which set a maximum limit on

the number of children in a family for which ADC would be

paid, the Court held as to the power of the States to legis-

late (397 U.S., p. 478)

“In King v. Smith, supra (392 U.S. 309), we stressed

the States’ ‘undisputed power,’ under these provisions

of the Social Security Act, ‘to set the level of benefits

and the standard of need.’ /d., at 334. We described

the AFDC enterprise as ‘a scheme of cooperative fed-

eralism,’ id., at 316, and noted carefully that ‘(t)here is

not question that States have considerable latitude in

allocating their AFDC resources, since each State is

free to set its own standard of need and to determine

the level of benefits by the amount of funds it devotes

to the program.’ /d., at 318-319. * * * Thus the start-

ing point of the statutory analysis must be a recogni-

tion that the federal law gives each State great latitude

in dispensing its available funds.”

_

9

Only the instant case, relied upon by the Courts in Dub-

lino and Bueno, has held a state work requirement to con-

flict with the Federal Act. Even in this case, the District

Court specifically stated (325 F. Supp. at p. 1170) :

“The Court is not ruling that persons receiving assist-

ance are without obligation to accept employment.”

Although the Court in this case limited its finding of invali-

dity of the state statute only to those areas in which the

WIN program is in effect, we submit that the Court’s fur-

ther finding, that employment cannot be compelled where

recipients are deemed inappropriate for WIN referral due

to remoteness from a WIN project, was erroneous and

extended the impact of the decision far beyond the facts of

the particular case. The Federal guidelines for WIN pro-

vide for the establishment of WIN projects only in areas

where there are 1100 or more potential WIN referees.

Thus, areas with less than 1100 employable public assist-

ance recipients would most probably not have sach a project

established and the recipients in that area would be deemed

inappropriate for WIN referral because of remoteness

from a project. To hold that such persons could not be

referred to available employment, solely because they are

inappropriate for WIN because of remoteness, is contrary

to the express purpose of the Federal Act itself, that is, to

assist welfare recipients to attain self-sufficiency and inde-

pendence and to assist them in moving from welfare rolls

to payrolls.

Additionally, New York's experience with the WIN pro-

gram clearly shows the lack of Congressional intent to

preempt the entire field of employment placement. In

New York, the WIN program is restricted geographically

in the sense that it exists in only 12 of the State’s 64 social

services districts. The actual designation of only 12 dis-

>

10

tricts to operate with the WIN program was made by the

Federal Secretary of Labor. The request of the New York

State Department of Social Services that the United States

Labor Secretary expand the WIN program by designating

additional social services districts for the program has

heen denied. Unlike New York State’s Social Services Law

work referral provisions, the WIN program by federal

design is restricted to specific areas of the State and as

such is available only to very limited numbers of ADC

recipients.

The 12 social services districts which have a WIN pro-

gram in operation are also limited to a total slot allocation

of 16,800. Initially, when the Program was implemented

in New York in 1968 there were 14,800 slots authorized. In

April 1972, the slot allocation was increased to the present

level of 16,800. Under the revised WIN program, effective

July 1, 1972, it is estimated there are 75,000 registered

ADC recipients who are potential WIN participants but

the program will not have the capacity to accommodate

more than a fraction of this number. Clearly then, we must

turn to other manpower programs, such as our own work

referral program, if we are to meet our responsibilities,

mandated under the Federal Social Security Act, to help

clients become self-supporting. The disparity between the

effectiveness and scope of the Federal and State programs

is apparent from the fact that in the period from January

through June, 1972 there were a total of 2,657 job place-

ments under the WIN program, as compared with a total of

5,323 placements in the same period under the State’s work

referral program, even though the WIN program is oper-

ating in those districts having 90% of the total number of

welfare recipients in the State.

In Fiseal 1971, the New York State Department of Social

Services referred 17,511 individuals for participation in

—

ll

the WIN program. However, in that fiscal year, the Fed-

eral government allowed only 9,600 opportunities for en-

rollment in the WIN program for New York State. In

addition, since the State work requirement has been en-

acted, referrals to the State Employment Service increased

twelvefold. Between November, 1971 and June, 1972, there

have been approximately 125,000 referrals within the scope

of seven months. Compare that figure with the yearly

total referrals under the lederal WIN program:

Fiseal year 68-69 9,127

69-70 16,992

70-71 17,511

Not only do the Federal and State acts not conflict, they

are in fact compatible in purpose and intent. This is

apparent from an examination of the materials related to

both programs.

The Federal Social Seeurity Act provides that appro-

priations under the ADC program are made, in part, for

the purpose of helping parents and relatives of needy

dependent children to “attain or retain capability for the

maximum self-support and personal independence” (42

U.S.C. A. § 601). State plans are specifically aathorized

to deny eligibility to persons who deliberately terminate

employment, reduce income, or refuse job offers in the

month preceding the computation of assistance (42 U.S.

C. A. 4602 [a(8)]). The Federal Act, under the WIN

program, provides for non-referral to that program of

persons who are ill, incapacitated, of advance age, a child

in full time school attendance, a person whose presence is

required in the home to care for persons who are ill or

incapacitated, or a person who is so remote from a WIN

project as not to he able to effectively participate.

In the Congressional presentation of the Social Security

Act amendments which became Public Law 92-223, Senator

12

Long made some significant observations on the purpose of

the work referral program under the Federal Act (Con-

gressional Record, December 14, 1971, p. S21641) :

“One final word on this amendment. As the Senate

knows, we will be legislating next year on extensive

_ changes in the welfare system. I have views of my

own, as | am sure other Senators do, about what we

might do to improve the welfare programs; but in the

meantime, J am pleased to see the Congress take this

forward step in improving the work incentive pro-

gram under existing law so that it can be more effective

in enabling welfare recipients to become employed. As

we know from a number of studies that have been con-

ducted by the Department of Health, Education, and

Welfare, most adults in families receiving welfare

would prefer to work rather than remain on welfare.

It is my hope that the amendments contained in the

conference report will help these recipients in their

efforts to become independent—eiforts that are all to

often frustrated today by the welfare system that is

supposed to be helping them.”

The guidelines issued by the Department of Health, Edu-

cation, and Welfare for the Work Incentive program clear-

ly express the purpose of that program to be one of work

referral (§ 31):

“The purpose of the Work Incentive Program is to

provide an opportunity for certain members of AFDC

families, 16 and over, to be placed in paid employment

immediately or to secure the necessary services to

prepare them to get and hold jobs in order to become

seli-supporting or capable of supportng their families.

“Added to the obvious desirability of an adequate

income is the recognition that employment is a neces-

sary and healthy part of family living. Many of the

persons served in this program have a sense of isola-

tion from the mainstream of American life. By enter-

ing the world of work successfully, such individuals

may see themselves in a new light in relation to their

own sense of worth and their standing in the commu-

—

13

nity. The family head who gains this new respect for

himself cannot help but imbue his family with it and

set a pattern for a new outlook and independent

li : 98

The State programs, too, aim at these same objectives.

We, therefore, submit to this Court that the issues pre-

sented in the application of the petitioner are sufficiently

significant and of such broad application as to warrant the

granting of the petition for certiorari.

CONCLUSION

The petition for certiorari should be granted.

Dated: September 23, 1972.

LOUIS J. LEFKOWITZ

Attorney General of the State

of New York

Amicus Curiae in Support

of the Petition

Ruts Kezsster Tocu

Solicitor General

JEAN M. Coon

Assistant Solicitor General

of Counsel