Opposition Brief — Sanchez v. San Diego County (No. 07-211)

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No. 07-211 OCT 1 ? 2007

OFFICE OF THE

Jn The —_|L_ SUPREN SE GIG. GLERK

Supreme Court of the Anited States

ROCIO SANCHEZ; OLGA CASTRO; __.

MYRNA MARTINEZ; KAREN BJORLAND;

CHERYL MACLYMAN and RHONDA KERN On Behalf of

Themselves and All Others Similarly Situated,

Petitioners,

vs.

COUNTY OF SAN DIEGO; SAN DIEGO COUNTY

BOARD OF SUPERVISORS; SAN DIEGO COUNTY

DEPARTMENT OF HEALTH AND HUMAN SERVICES;

JEAN SHEPARD, Director Of The San Diego County

Health And Human Services Agency, in her official

capacity; SAN DIEGO OFFICE OF DISTRICT

ATTORNEY; BONNIE DUMANIS, District Attorney

Of The County Of San Diego, in her official capacity,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

JOHN J. SANSONE, County Counsel

COUNTY OF SAN DIEGO

THOMAS D. BUNTON, Senior Deputy*

1600 Pacific Highway, Room 355

San Diego, California 92101-2469

(619) 531-6456

Attorneys for Respondents

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-283!

QUESTION PRESENTED

Whether the County of San Diego’s home visit

program violates the Fourth Amendment where

applicants are free to refuse entry into their homes,

and the purpose of the home visit is to confirm eligi-

bility for welfare benefits, not to locate evidence of

criminal conduct?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............sssccscsscsseseesceesees i

Re ie SITE atennccsnncsniscciiciintenistisnniitinne ii

TABLE OF AUTHORITIEG...............csccscssceceessseees iv

INTRODUCTION/SUMMARY OF ARGUMENT... 1

STATEMENT OF THE CASE ..........ccccscscssrsreceresess 4

Big, < Fe ee ndacdbacintcnvtierinccesensiitsinieianine 9

B. Proceedings In This Court ...............cccceeeeeees 10

SITE, scisiciasiitiinsiniiciititaicisiimiaininiattiichimeitnlinsiaitd 11

I THE NINTH CIRCUITS DETERMINA-

TION THAT THE HOME VISITS DO NOT

VIOLATE THE FOURTH AMENDMENT

IS CONSISTENT WITH THIS COURT’S

PRECEDENTS AND DECISIONS FROM

THE OTHER COURTS OF APPEALAB......... 11

A. There Is No Conflict Among The

CD OE FE icicsssabenscnstaiinainiiininiens 16

B®. Searches Made For Purposes Of Inves-

tigating Child Abuse Are Different

From The Project 100% Home Visits.... 20

The Status Of Wyman’s Initial Holding

Does Not Warrant Consideration By

I sccccsstindisissnddbbesdaniiabiabiakuaidiie 23

O°

Ii THE NINTH CIRCUIT CORRECTLY

CONCLUDED THAT THIS CASE IS

GOVERNED BY WYMAN ............cccccsssseeeees 25

ill

TABLE OF CONTENTS -— Continued

Page

The Purpose Of The Home Visits Is To

Confirm Benefit Eligibility................... 26

The Home Visits Are Not Coerced......... 28

The Investigators Are Not Police Or

Be | Ee 28

Rehabilitation Was Not The Primary

Purpose Of The Home Visits In

DE siintacchichttivindbienainbiincningendenan 30

The Home Visits Are Needed To Con-

firm Benefit Eligibility.................sssseeeees 33

No Serious Welfare Fraud Problem Is

Necessary For The Existence Of A

Home Visits Program............cccssscsseees 34

The Ninth Circuit Did Not Endorse A

Home Visit Program For Taxpayers...... 36

FE I IUT cccsiconsseceictevensncstecesnsenpenabetnioneensinneioes 37

TABLE OF AUTHORITIES

Page

CASES

Board Of Education v. Earls, 536 U.S. 822

a a a sonia nnesenevennst 34

Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999) ...21, 22

Camara v. Municipal Court, 387 U.S. 523

a dea tdadeddiin ce senkisenasanguciecsvooteossdvencstsias 17

Good v. Dauphin County Social Services, 891

TE SE GE, BUND sivcssncencnesecasestessecccetevesersonss 21

Griffin v. Wisconsin, 483 U.S. 868 (1987)............ 15, 24

Hubbard v. United States, 514 U.S. 695 (1995)........ 17

James v. Goldberg, 303 F. Supp. 935 (1969) ............. 31

Lenz v. Winburn, 51 F.3d 1540 (11th Cir. 1995)........ 21

McCabe v. Life-Line Ambulance Serv., 77 F.3d

Ns sven cdcserhvvecuenssvoneapannnes 24

New York v. Burger, 482 U.S. 691 (1987) .............000 29

Reyes v. Edmunds, 472 F. Supp. 1218 (D. Minn.

tied ess snivadessuncadeustukeieeiasecstedseesss 16, 17

Roe v. Texas Department of Protective and

Regulatory Services, 299 F.3d 395 (9th Cir.

ELSES Bi ed SUES Ee ON ROR aT OD Re 21

Roska v. Peterson, 328 F.2d 1230 (10th Cir.

aos cvcdausvnciucdcesksaseanes 21

S.L. v. Whitburn, 67 F.3d 1299 (7th Cir. 1995).... passim

Sanchez v. County of San Diego, 464 F.3d 916

SE AS MIE sedecncescvdcckucecsverscososereees 9, 20, 27, 32, 36

TABLE OF AUTHORITIES - Continued

Page

Sanchez v. County of San Diego, 483 F.3d 965

as iemnidensninserencore 10

See v. Seattle, 387 U.S. 541 (1967) ............ceceeeeeeeeeeees 17

Wildauer v. Rederick County, 993 F.2d 369 (4th

EEE LES a ee 21

Wyman v. James, 400 U.S. 309 (1971).............. passim

RULES AND STATUTES

Sa I occas cemesanetetnocenavecneneenens 4

SE 4

Cal. Welf. & Inst. Code § 10100............ ccc eececeee sevens 4

Cre. Pree GS BSE, Code © TOGOZ....ccoccccvcccvecgecoesecccsesccese 4

Cal. Welf. & Inst. Code § 11200 et seq. ............. ee 4

Cal. Welf. & Inst. Code § 11209 .............. cee eeeeeseeeeeeerees 4

Cal. Welf. & Inst. Code § 11250 et seq. ..................0e 4

Cal. Welf. & Inst. Code § 11320 et seq. ............... eee. 4

Cal. Welf. & Inst. Code § 11454............cccccsssesevceeeeeseees 4

MINI, EW oo. csscrncvnedennscvevervecconcovers passim

RFs OUND CORES TERED I] ...cccccccccvcccesecesvcceresersseees 25

BRIEF IN OPPOSITION

Respondents County of San Diego; San Diego

County Board of Supervisors; San Diego County

Department of Health and Human Services; Jean

Sheppard, Director of the San Diego County Health

and Human Services Agency, in her official capacity;

San Diego Office of District Attorney; and Bonnie

Dumanis, District Attorney of the County of San

Diego, in her official capacity (collectively the

“County”) respectfully submit this opposition to the

Petition for a Writ of Certiorari filed by petitioners

Rocio Sanchez, Olga Castro, Myrna Martinez, Karen

Bjorland, Cheryl Maclyman, and Rhonda Kern.

INTRODUCTION/SUMMARY OF ARGUMENT

This case involves a challenge to a program

adopted by the County of San Diego (the “County”)

requiring its employees to confirm through a home

visit that all applicants for CalWORKs benefits

(commonly known as welfare) are eligible for those

benefits. The name of this program is “Project 100%.”

Petitioners’ Fourth Amendment challenge to the

County’s home visit program was correctly rejected by

the district court and the Ninth Circuit. Petitioners

urge the Court to grant the Petition because they

contend that the Ninth Circuit’s decision in this case

conflicts with the Seventh Circuit’s decision in S.L. v.

Whitburn, 67 F.3d 1299 (7th Cir. 1995), examining a

similar home visit program. However, those decisions

do not conflict at all. In both cases, relying on this

Court’s decision in Wyman v. James, 400 U.S. 309

(1971), the courts of appeals held that the home visits

were not searches governed by the Fourth Amend-

ment and that even if they were searches they were

reasonable. In addition, the courts of appeal applied

this Court’s “special needs” cases in confirming that

no search warrant was necessary. Despite petitioners’

assertion to the contrary, the Seventh Circuit did not

conclude, in direct contravention of Wyman, that the

home visits would have violated the Fourth Amend-

ment if they had been a condition of receiving welfare

benefits.

Recognizing that (a) only two courts of appeals

decisions have applied Wyman to home visit programs

used to confirm eligibility for welfare benefits in the

past thirty-six years and (b) that the two courts of

appeals decisions are consistent, petitioners try to

create a conflict by lumping all “home entries by

government officials in the social-services context”

together. This approach is unavailing. The cases cited

by petitioners involve highly individualized investiga-

tions of child abuse. The courts of appeals have had

no trouble distinguishing between systematic home

visits for the purpose of confirming eligibility for

welfare benefits and home entries made based on

individualized suspicion of child abuse.

Next, petitioners urge the Court to grant certio-

rari because the Wyman court’s initial holding that

the home visits are not searches within the meaning

of the Fourth Amendment is purportedly inconsistent

with later decisions from the Court addressing other

administrative “searches.” This is hardly a pressing

issue that needs this Court’s attention because only

two courts of appeals decisions in the past thirty-six

years have considered whether home visits used to

confirm eligibility for welfare benefits are searches

within the meaning of the Fourth Amendment. More-

over, in each of those cases the courts of appeals went

on to consider whether the searches were reasonable,

assuming that they were Fourth Amendment

searches. In performing this analysis, the courts of

appeals also considered this Court’s subsequent

“special needs” cases. Thus, there is almost no chance

that a lower court will reach a conclusion that is

inconsistent with Wyman or the Court’s other Fourth

Amendment cases.

Finally, the Ninth Circuit’s determination that

the County’s home visits do not violate the Fourth

Amendment is consistent with this Court’s decision in

Wyman. Petitioner’s effort to distinguish the facts of

this case from the home visits at issue in Wyman is

not persuasive. The Ninth Circuit properly rejected

petitioners’ contentions.

STATEMENT OF THE CASE

San Diego County residents who apply for Cal-

WORKs' benefits and who are not suspected of being

ineligible for those benefits automatically participate

in Project 100%.’ (ER 81 Ex. 2 at 1, 7 6 (Agreement),

Ex. 4 at 1, 1 3 (Program Summary)).’ All participants

‘In 1996, Congress passed landmark welfare reform

legislation in the form of the “Personal Responsibility and Work

Opportunity Reconciliation Act of 1996.” This legislation re-

placed the Aid to Families with Dependent Children program

(“AFDC”) with the Temporary Assistance for Needy Families

program (“TANF”) and provided assistance to transition indi-

viduals from welfare to work. 42 U.S.C. § 601 et seq.

As required by the federal legislation, California adopted

the Welfare to Work Act of 1997 and established CalWORKs

(California Work Opportunity and Responsibility to Kids). Cal.

Welf. & Inst. Code § 11200 et seq. CalWORKs has two compo-

nents. One component provides cash assistance to needy Cali-

fornia families. Jd. at § 11250 et seq. This cash assistance is

provided for a lifetime maximum of five years. Jd. at § 11454.

The other component provides assistance to help recipients

transition from welfare to work. Jd. at § 11320 et seq. Only the

cash assistance component of CalWORKs is at issue in this

lawsuit.

San Diego County and the other fifty-seven counties in

California are responsible for administering the CalWORKs

program in conformity with federal and state laws and regula-

tions. Jd. at §§ 10802, 11209. Federal, state and county govern-

ments jointly provide funding for CalWORKs. 7d. at § 10100 et

seq.; 42 U.S.C. § 603.

* If the County has some reason to suspect that the appli-

cant is ineligible for benefits, the applicant does not participate

in Project 100%. (ER 81 Ex. 4 at 1, 1 3 (Program Summary)).

* “ER” refers to the Excerpts of Record filed in the Ninth

Circuit.

in Project 100% receive a home visit so that the

County can confirm their eligibility for benefits. (ER

81 Ex. 4 at 1, J 1 (Program Summary)). The home

visit has two primary components — an interview

followed by a “walk through” of the applicant’s resi-

dence. (ER 85 Ex. 14 at 44:7-18 (Reid Depo.); ER 81

Ex. 7 (Program Summary)).

The purpose of the home visit is to view items

confirming that: (1) the applicant has the amount of

assets claimed; (2) the applicant has an eligible

dependent child; (3) the applicant lives in California;

and (4) an “absent” parent does not live in the resi-

dence. (ER 81 Ex. 8 (Eligibility Factors)).

The home visits are conducted by Public Assis-

tance Investigators (“investigators”) employed by the

San Diego County District Attorney’s Office (“D.A.’s

Office”). (ER 81 Ex. 9 at 1 (Program Summary)). The

investigators are not prosecutors or police. They do

not carry weapons of any kind, do not wear uniforms,

and have no authority to arrest individuals. (ER 81

Ex. 10 at 1 (memo), Ex. 10 at 15:12-15 (Crosby Depo.),

Ex. 10 at 58:17-19 (Bogard Depo.); ER 79 at 2, 46

(Crosby Decl.)). Generally, only one investigator

makes the home visit. (ER 79 at 1, J 2 (Crosby Decl.)).

Applicants are informed in advance that an

investigator will come to their residence to confirm

their eligibility for CalWORKs benefits. A one-page

notice of the home visit is contained in the Cal-

WORKs application. (ER 81 Ex. 11 (Notice)). Eligibil-

ity technicians (“ETs”) also tell the applicants that an

investigator will be coming to their residence. (ER 81

Ex. 12 at 111:10-20 (Deguzman Depo.)).

The home visits are generally conducted within

ten days of the applicant’s initial interview with the

County’s Health and Human Services Agency

(“HHSA”). (ER 81 Ex. 13 at 104:11-16 (Crosby Decl.),

Ex. 13 at 36:3-6 (Reid Depo.)). However, if the appli-

cant is not at home on the day of the visit, the inves-

tigator will leave his or her business card with a note

asking the applicant to call the investigator. (ER 81

Ex. 4 at 1, 9 6 (Program Summary), Ex. 14 at 46:19-

47:12 (Crosby Depo.), Ex. 14 at 73:10-21 (Gonzalez

Depo.)). When the applicant calls, an appointment

will be scheduled for the home visit. (ER 81 Ex. 15 at

56:17-57:3 (Bogard Depo.)). If the applicant is not at

home at the scheduled time of the appointment, the

investigator will leave another business card asking

the applicant to call. (ER 81 Ex. 4 at 1, J 6 (Program

Summary), Ex. 16 at 75:23-76:4 (Duvall Depo.)). If

after several days the applicant has not called, the

investigator will report this information to the re-

sponsible ET and the application will be denied.‘ (ER

81 Ex. 4 at 1, 79 6, 8 (Program Summary)).

The home visits are made during regular busi-

ness hours (usually between 8 a.m. and 5 p.m.),

“ Some investigators may attempt more than two home

visits before reporting to the ET that no home visit could be

made because of the applicant's unavailability. (ER 81 Ex. 17 at

62:21-64:17 (Reid Depo.)).

unless a different time is required to accommodate an

applicant’s schedule. (ER 81 Ex. 19 at 72:14-73:5

(Gonzalez Depo.)). The investigators are trained to be

professional, courteous and respectful to the appli-

cant during the home visit. (ER 81 Ex. 20 at 1, 4B

(Training Manual), Ex. 20 at 88:19-89:24 (Gonzalez

Depo.)). When an investigator arrives at an appli-

cant’s residence for the home visit, she identifies

herself and asks the applicant whether she is willing

to answer some questions. (ER 81 Ex. 21 at 1, ( il

(Program Manual), Ex. 21 at 46:15-20, 47:16-22

(Duvall Depo.)). If the applicant says no, the home

visit terminates and the investigator leaves. (ER 79

at 2, ¥ 5 (Crosby Decl.)). The interview may be con-

ducted outside the applicant’s residence or inside the

residence if the applicant invites the investigator

inside. (ER 81 Ex. 23 at 39:1-21 (Reid Depo.), Ex. 23

at 40:22-41:6 (Crosby Depo.)). If the interview is

conducted outside the residence, the investigator will

ask the applicant’s permission to enter the residence.

If permission is denied, the investigator leaves and

termirates the home visit. (ER 81 Ex. 24 at 41:7-10

(Crosby Depo.), Ex. 24 at 65:25-66:11 (Gonzalez

Depo. )).

Once inside, the investigator will ask the appli-

cant to lead a walk through of the residence. (ER 81

Ex. 25 at 1, 9 B (Program Guide), Ex. 25 at 1 (Train-

ing Bulletin), Ex. 25). Often the walk through occurs

as a result of the investigator’s request to be shown

specific items such as clothes belonging to the appli-

cant. (ER 81 Ex. 26 at 55:5-22 (Reid Depo.)). The

investigator will not walk through the residence

unless escorted by the applicant. (ER 81 Ex. 27 at 1

(Training Bulletin), Ex. 27 at 69:1-10 (Bogard Depo.)).

If the investigator wants to look at any objects not in

plain view, she will ask the applicant to open a closet,

medicine cabinet, dresser drawer, etc. (ER 81 Ex. 28

at 1 (Training Bulletin), Ex. 28 at 80:10-19 (Gonzalez

Depo.), Ex. 28 at 54:6-15 (Duvall Depo.), Ex. 28 at

70:3-10 (Bogard Depo.)). If the applicant refuses, the

investigator will not view objects outside plain view.

(ER 81 Ex. 29 at 57:19-21 (Duvall Depo.)). The walk

through generally takes five to ten minutes. (ER 85

Ex. 7 at 74:12-18 (Duvall Depo.)). Once the investiga-

tor completes a home visit, she transmits her findings

electronically to the ET assigned to the applicant’s

file. (ER 81 Ex. 37 at 23:20-25 (Gonzalez Depo.)). The

ETs are employed by HHSA. (ER 81 Ex. 38 at 75:23-

25; ER 79 at 2, I 7 (Crosby Decl.)). The ETs, and not

the investigators, decide whether to approve Cal-

WORKs benefit applications. (ER 81 Ex. 39 at 65:4-10

(Gonzalez Depo.), Ex. 39 at 31:9-11(Bogard Depo. );

ER 79 at 2, J 7 (Crosby Decl.)).

If an applicant refuses to allow a home visit, the

applicant is not criminally prosecuted. (ER 79 at 2,

4q 5 (Crosby Decl.)). Indeed, refusal to allow a home

visit will not result in any criminal or civil penalty.

The only consequence of refusing to allow a home

visit is that the application for CalWORKs benefits

will be denied. (ER 81 Ex. 40 at 38:13-39:16 (Crosby

Depo.)). No applicant has been prosecuted for welfare

fraud based upon anything observed or discovered

during a home visit that contradicted information

provided by the applicant. (ER 81 Ex. 43 at 89:4-10,

157:1-4, 177:12-25, 191:20-192:6).

A. Proceedings Below.

On March 10, 2003, the district court ruled on

the parties cross-motions for summary judgment. (ER

138). The district court granted summary judgment

in favor of the County on petitioners’ Fourth Amend-

ment claim. Based on Wyman, the district court

concluded that the home visits are not searches

within the meaning of the Fourth Amendment. (Jd. at

6). Further, the district court concluded that even if

the home visits were searches, they are reasonable

under this Court’s holding in Wyman and this Court’s

subsequent “special needs” cases. (Jd. at 6-13). Judg-

ment was entered in favor of the County on the

Fourth Amendment claim on January 5, 2004. (ER

162)”

The Ninth Circuit affirmed the district court’s

decision. In a 2-1 opinion written by Judge A. Wallace

Tashima (joined by Judge Andrew J. Kleinfeld), the

Ninth Circuit concluded that the home visits do not

violate the Fourth Amendment. Sanchez v. County of

San Diego, 464 F.3d 916 (9th Cir. 2006). The Ninth

Circuit found that under this Court’s holding in

Wyman, the home visits are not searches within the

* The County omits discussion of petitioners’ claims that are

not at issue in this Petition for a Writ of Certiorari.

meaning of the Fourth Amendment. The Ninth Cir-

cuit also concluded that even if the home visits were

searches they were reasonable and did not violate the

Fourth Amendment. Finally, the court concluded that

there was a special need for the home visits unrelated

to law enforcement and therefore under this Court’s

“special needs” cases no warrant is needed to conduct

the home visits. Judge Raymond C. Fisher filed a

dissenting opinion.

The petitioners subsequently filed a Petition for

Rehearing En Banc with the Ninth Circuit. The

Ninth Circuit denied that Petition. Sanchez v. County

of San Diego, 483 F.3d 965 (9th Cir. 2007). Judge

Harry Pregerson filed a dissenting opinion that was

joined by judges Stephen Reinhardt, Kim McLane

Wardlaw, William A. Fletcher, Raymond C. Fisher,

Richard A. Paez and Marsha S. Berzon. Judge Alex

Kozinski wrote a separate one sentence dissent.

Thus, eight of the Ninth Circuit’s twenty-eight active

judges dissented from the denial of rehearing en banc.

B. Proceedings In This Court.

Petitioners filed a Petition for a Writ of Certiorari

in this Court on August 15, 2007. The Petition was

placed on the docket August 17, 2007. On August 29,

2007, the Court granted the County a thirty-day

extension of time to file this Opposition to the Peti-

tion for a Writ of Certiorari.

ARGUMENT

THE NINTH CIRCUIT’S DETERMINATION

THAT THE HOME VISITS DO NOT VIOLATE

THE FOURTH AMENDMENT IS CONSISTENT

WITH THIS COURT’S PRECEDENTS

AND DECISIONS FROM THE

OTHER COURTS OF APPEALS

In finding that the County’s home visits do not

violate the Fourth Amendment, the Ninth Circuit

primarily — but not exclusively — relied on this Court’s

1971 decision upholding similar home visits in

Wyman. In Wyman, the Court held that the home

visits did not implicate the Fourth Amendment

because the home visits were not searches. Alterna-

tively, the Court held that even if the visits were

Fourth Amendment searches, they were reasonable

and therefore did not violate the Constitution.

Under the New York laws and regulations at

issue in Wyman, all applicants for welfare benefits

were required to have an initial home visit. 400 U.S.

at 312 n.4. In addition, New York required that home

visits be made every three months to confirm that the

recipient remained eligible for welfare benefits. Jd. at

312 n.3. The plaintiff in Wyman (Mrs. James) initially

applied for welfare benefits and received a home visit

from a caseworker employed by the New York City

Department of Social Services. Mrs. James did not

object to that home visit and began receiving benefits.

Two years later, New York City informed Mrs. James

that a caseworker would need to make another visit

to her home. Mrs. James indicated that she would not

allow a home visit and the caseworker responded that

if she did not do so her benefits would be terminated.

Mrs. James subsequently challenged the home visit

requirement in an administrative proceeding. Her

challenge was denied and her benefits were termi-

nated.

Mrs. James filed a federal lawsuit alleging,

among other things, that the home visits violated her

Fourth Amendment right to be free from unreason-

able searches and seizures. This Court rejected Mrs.

James’ challenge to New York City’s home visit pro-

gram.

First, the Court held that the home visit did not

rise to the level of a “search” within the meaning of

the Fourth Amendment. The Court reasoned as

follows:

[W]e are not concerned here with any search

by the New York social service agency in the

Fourth Amendment meaning of that term. It

is true that the governing statute and regu-

lations appear to make mandatory the initial

home visit and the subsequent periodic “con-

tacts” (which may include home visits) for

the inception and continuance of aid. It is

also true that the caseworker’s posture

in the home visit is perhaps, in a sense,

both rehabilitative’ and investigative.

But this latter aspect, we think, is given

too broad a character and far more em-

phasis than it deserves if it is equated

with a search in the traditional crimi-

nal law context. We note, too, that the visi-

tation in itself is not forced or compelled, and

that the beneficiary’s denial of permission is

not a criminal act. If consent to the visitation

is withheld, no visitation takes place. The aid

then never begins or merely ceases, as the

case may be. There is no entry of the home

and there is no search.

Id. at 317-18 (emphasis added).

Second, the Court also held that even if the home

visits were Fourth Amendment searches, they were

reasonable. The Court based its holding upon the

following factors: (1) by observing the child in the

home, New York could assure that the child’s best

interests were being served; (2) New York had a

“paramount interest and concern ... in assuring”

that the taxpayers money was being spent only on

those who were eligible to receive welfare benefits; (3)

the taxpaying public has an interest in knowing how

its funds are being put to work and assuring that that

they are being used properly; (4) home visits, while

* “Rehabilitative” apparently refers to the fact that the New

York Social Services law stated that the home visits were made,

in part, “in order that any treatment or service tending to

restore such persons to a condition of self-support and to relieve

their distress may be rendered... .” Jd. at 311 n.2.

not required by federal or state law, are an accepted

practice in other jurisdictions; (5) the home visits are

not done by forcible entry, under false pretenses,

outside normal business hours and do not involve

“snooping”; (6)not “all information pertinent” to

eligibility could be obtained by an interview outside

the house or by “examining a lease or a birth certifi-

cate, or by periodic medical examinations, or by

interviews with school personnel”; (7) the home visits

are not done by the “police or uniformed authority”

and do not “deal with crime or the actual or suspected

perpetrators of crime”; (8) the home visit “is not a

criminal investigation, does not equate with a crimi-

nal investigation, and... is not in aid of any criminal

proceeding”;’ and (9) requiring New York to obtain a

warrant to make the home visit “is not without its

seriously objectionable features in the welfare con-

text,” i.e., a warrant would justify entry by force, at

virtually any hour, would imply criminal or non-

compliant behavior, etc. Jd. at 318-24.

The Court’s determination that if the home visit

was a search under the Fourth Amendment, the

” The Court noted that “[i]f the visitation serves to discour-

age misrepresentation or fraud, such a byproduct of that visit

does not impress upon the visit itself a dominant criminal

investigative aspect.” Jd. at 323. Further, the Court stressed

that “l[i]f the visit should, by chance, lead to the discovery of

fraud and a criminal prosecution should follow ... that is a

routine and expected fact of life and a consequence no greater

than that which necessarily ensues upon any other discovery by

a citizen of criminal conduct.” Jd. (footnote omitted).

search was reasonable and no warrant was needed is

perfectly consistent with this Court’s subsequent

“special needs” cases. Griffin v. Wisconsin, 483 U.S.

868, 873 (1987) (“Although we usually require that a

search be undertaken only pursuant to a warrant

(and thus supported by probable cause, as the Consti-

tution says warrants must be), we have permitted

exceptions when special needs, beyond the normal

need for law enforcement, make the warrant and

probable-cause requirement impracticable.”) (cita-

tions and internal quotation marks omitted). Indeed,

the Court discussed in detail why requiring a gov-

ernment entity to obtain a warrant for a welfare

home visit would be impractical:

The warrant procedure, which the plain-

tiff appears to claim to be so precious to her,

even if civil in nature, is not without its seri-

ously objectionable features in the welfare

context. If a warrant could be obtained (the

plaintiff affords us little help as to how it

would be obtained), it presumably could be

applied for ex parte, its execution would re-

quire no notice, it would justify entry by

force, and its hours for execution would not

be so limited as those prescribed for home

visitation. The warrant necessarily would

imply conduct either criminal or out of com-

pliance with an asserted governing standard.

Of course, the force behind the warrant ar-

gument, welcome to the one asserting it, is

the fact that it would have to rest upon prob-

able cause, and probable cause in the welfare

context, as Mrs. James concedes, requires

more than the mere need of the caseworker

to see the child in the home and to have as-

surance that the child is there and is receiv-

ing the benefit of the aid that has been

authorized for it. In this setting the warrant

argument is out of place.

400 U.S. at 323-24.

A. There Is No Conflict Among The Courts of

Appeal.

Petitioners’ assertion that this Court should

grant certiorari because Wyman’s status has created a

conflict among the courts of appeals is mistaken.

Wyman was decided in 1971. In the thirty-six years

since the Wyman decision, only one other court of

appeals has applied Wyman in the context of a home

visit program used to confirm eligibility for govern-

ment benefits. Twelve years ago, the Seventh Circuit

upheld the home visit program at issue in that case

on the same grounds as the Ninth Circuit upheld the

home visit program in this case -- the home visits are

not Fourth Amendment searches and even if they

were, they are reasonable. S.L. v. Whitburn, 67 F.3d

1299."

* Petitioners also cite a twenty-eight year old decision from

a district judge in Minnesota. Reyes v. Edmunds, 472 F. Supp.

1218, 1224 (D. Minn. 1979). In Reyes, the district judge stated

that “(t]he majority opinion in Wyman v. James is net without

conceptual problems, and, in view of the vigorous, persuasive

three-judge dissenting opinions, the holding must be restricted

(Continued on following page)

Petitioners’ contention that the Ninth Circuit’s

decision in this case conflicts with the Seventh Cir-

cuit’s decision in Whitburn is simply wrong. In Whit-

burn, the plaintiffs challenged a home visit program

instituted by Milwaukee County, in Wisconsin. In

Milwaukee County, a “caseworker” reviews a com-

pleted application for welfare benefits and interviews

the applicant. “The application is then subject to

verification to ensure that the information provided is

accurate and that the applicant is eligible for public

assistance.” Jd. at 1302. “[I]f the information provided

to a caseworker is insufficient to verify eligibility, or if

to the boundaries imposed by the facts to avoid glaring inconsis-

tency with prior search and seizure cases.” 472 F. Supp. at 1224

(citing Camara v. Municipal Court, 387 U.S. 523 (1967) and See

v. Seattle, 387 U.S. 541 (1967)).

It is clear from the district judge’s statement that he

believed the dissent, and not the majority, had correctly decided

Wyman and he declined to follow this Court’s decision. District

judges, however, do not have the authority to ignore binding

Supreme Court precedent. Hubbard v. United States, 514 U.S.

695, 713 n.13 (1995).

Moreover, the Court in Wyman distinguished both Camara

and See finding no “glaring inconsistencies” with its holding. 400

U.S. at 325. The Wyman court held that Camara and See were

not inconsistent because Mrs. James was not prosecuted for

refusing to allow the home visit, her welfare benefits were

merely terminated. Jd.

Petitioners state that “[t]he Minnesota federal district also

has invalidated a welfare home-visit program under the Fourth

Amendment, using the same reasoning as the Seventh Circuit in

Whitburn.” (Petition, at 17-18, n.12.) In Whitburn, however, the

Seventh Circuit upheld the home visit program against the

Fourth Amendment challenge.

a caseworker believes that an applicant may not be

eligible for benefits, then the case is designated for

verification.” Jd. Verification is done by an “investiga-

tive service” hired by the County. Verification could

include a home visit.

Milwaukee County does not obtain a search

warrant for the home visits. The home visits are

conducted between 8:00 a.m. and 8:00 p.m. (normally

during business hours except under special circum-

stances). “The County does not contact the applicant

to schedule the exact date or approximate time of the

visit.” Jd. The field representative asks for permission

to enter the residence and cannot enter the residence

unless the applicant gives permission. Once inside,

the field representative can note anything in plain

view and pertinent to eligibility. Field representatives

can “ask for permission to inspect closets, cabinets,

attics, basements, garages, etc., but they are forbid-

den to inspect these areas without the resident’s

consent.” Jd.

The Seventh Circuit held, among other things,

that the home visits did not violate the applicants’

Fourth Amendment rights. The court initially held

that it was bound by Wyman and the home visits

were not searches for the same reasons articulated by

this Court in Wyman. Id. at 1307 (“Wyman dictates

that the home visits at issue are not searches within

the meaning of the Fourth Amendment.”) Further,

the Seventh Circuit found that the home visits were

not unreasonable, even if they were searches. The

Seventh Circuit emphasized that while not all of the

factors discussed by the Court in Wyman were pre-

sent in Whitburn, most of the factors were present

and under Wyman the home visits were not unrea-

sonable. Jd. at 1308-09. Finally, the Seventh Circuit

applied this Court’s “special needs” cases and indi-

cated that those cases supported its determination

that if the home visits were searches, they are rea-

sonable, and no warrant was required. Id. at 1310.

Petitioners assert that the Seventh Circuit

upheld the home visit program in Whitburn “only on

the ground that the home inspections were not man-

datory, in that ... ‘benefits are not denied or cut off

because the applicant has refused to allow the home

visit.’” (Petition, at 17) (quoting Whitburn, 67 F.3d at

1307). Since the Seventh Circuit expressly stated that

it "was bound by Wyman and followed that decision, it

is clear that it would not have struck down the home

visit program if benefits were denied or cut off be-

cause an applicant refused to allow a home visit. This

is true because in Wyman the Court explained that

“(t]he visitation in itself is not forced or compelled,

and that the beneficiary’s denial of permission is not

a criminal act. If consent to the visitation is withheld,

no visitation takes place. The aid then never begins

or merely ceases, as the case may be.” 400 U.S. at

317-18. The Court therefore concluded that even if

aid is denied for failure to consent to a home visit, the

home visit does not violate the Fourth Amendment.

In Whitburn, the Seventh Circuit obviously did

not conclude, contrary to Wyman, that a home visit

would violate the Fourth Amendment if benefits were

denied as a result of an applicant’s refusal to allow a

home visit. The Seventh Circuit merely noted that

this was an additional factor proving that the pro-

gram did not violate the Fourth Amendment. The

Ninth Circuit did not believe that Whitburn conflicted

with its decision — it relied on Whitburn in upholding

the County’s home visit program. Sanchez, 464 F.3d

at 921 n.6.

Accordingly, this Court does not need to expend

its limited resources to address an area of Fourth

Amendment law that rarely arises and where the

courts of appeals have reached consistent decisions.

B. Searches Made For Purposes Of Investigat-

ing Child Abuse Are Different From The

Project 100% Home Visits.

Recognizing that (a) only two courts of appeals

decisions have applied Wyman in the context of home

visits used to confirm eligibility for welfare benefits in

the past thirty-six years and (b) that the two courts of

appeals decisions are consistent, petitioners try to

create a conflict by lumping all “home entries by

government officials in the social-services context”

together. This approach is unavailing.

Petitioners cite six cases in support of their

“conflict” argument that all involve entry into the

home for the purpose of investigating allegations of

child abuse or to remove a child from the custody of

his or her guardian. In none of the cases where

Fourth Amendment violations were found was entry

into the home done with consent. Police officers

accompanied the social workers in five of the cases.

Calabretta v. Floyd, 189 F.3d 808, 811 (9th Cir. 1999);

Good v. Dauphin County Social Services, 891 F.2d

1087, 1089 (3d Cir. 1989); Lenz v. Winburn, 51 F.3d

1540, 1543 (11th Cir. 1995); Roska v. Peterson, 328

F.3d 1230, 1238 (10th Cir. 2003); Wildauer v. Rederick

County, 993 F.2d 369, 371 (4th Cir. 1993). In two of

the cases the children were strip searched. Calab-

retta, 189 F.3d at 811-12; Roe v. Texas Department of

Protective and Regulatory Services, 299 F.3d 395, 399

(9th Cir. 2002). In one case a child was strip searched

and a body cavity search was also performed. Roe,

299 F.3d at 399. In only three of the cases did the

courts of appeals even cite Wyman. Roe, 299 F.3d at

405-06; Calabretta, 189 F.3d at 816; Wildauer, 993

F.2d at 372.

None of the cited cases involved a systematic

program applied to all applicants to confirm eligibil-

ity for welfare benefits. Rather, these cases involve

entry into the home for purposes of investigating

individualized allegations of child abuse. Therefore,

these cases are readily distinguishable from Wyman

and the principles announced in Wyman are not

applicable.

For instance, in Roska, the Tenth Circuit recog-

nized that in “special needs” cases “the nature of the

need addressed makes particularized suspicion

impossible or otherwise renders the warrant re-

quirement impractical.” 328 F.3d at 1241. However,

the Court noted that “individualized suspicion is at

heart of a removal of a child from a home, distin-

guishing the instant case from the various drug

testing cases [involving ‘special needs’] that have

been addressed by the Court.” Jd. at 1242. Similarly,

in Roe, the Fifth Circuit distinguished Wyman on the

ground that “[aJl1 AFDC recipients had to endure

visitation; the government did not single out individ-

ual recipients based on potential criminal liability.”

299 F.3d at 405 (emphasis in original).’

* In Calabretta, Judge Kleinfeld, writing for the Ninth

Circuit, stated that Wyman “holds that the state may terminate

welfare where a mother refuses to allow a social worker to visit

her home to see whether the welfare money is being used in the

best interests of the child for whom it is being paid.” 189 F. 3d at

816. Judge Kleinfeld distinguished Wyman because in that case

entry into the home was not “forced or compelled” whereas in

Calabretta it was. In this case, the Ninth Circuit correctly

recognized that “[als in Wyman, the home visits are conducted

with the applicant’s consent, and if consent is denied, the visit

will not occur.” Sanchez, 464 F.3d at 921.

Petitioners state that in Calabretta the Ninth Circuit

concluded that, contrary to Wyman, entry into the home is not

“consensual” if refusal to consent to the entry results in the loss

of benefits. (Petition, at 19.) This statement is false. In Calab-

retta, the Ninth Circuit specifically recognized that under

Wyman, “the state may terminate welfare where a mother

refuses to allow a social worker to visit her home.... ” 189 F.3d

at 816.

Further, Judge Kleinfeld was in the panel majority in this

case and felt no need to even mention the Calabretta decision.

Thus, there is obviously no conflict within the Ninth Circuit’s

opinions on these Fourth Amendment issues as petitioners

assert.

Systematic home visits for the purpose of con-

firming eligibility for benefits fit squarely within the

rubric of this Court’s special needs cases and Wyman

itself. Cases involving individualized suspicion of

child abuse are different from the type of home visits

considered in Wyman where there was no individual-

ized suspicion of wrongdoing. Thus, granting certio-

rari in this case would not assist the lower courts in

determining the proper standards that apply to home

searches done for the purpose of investigating alleged

child abuse.

C. The Status Of Wyman’s Initial Holding Does

Not Warrant Consideration By This Court.

Petitioners also assert that certiorari should be

granted because it is uncertain from subsequent

decisions of this Court whether the Wyman court’s

initial holding that the home visits were not searches

within the meaning of the Fourth Amendment is still

good law. Since only two courts of appeals decisions in

the past thirty-six years have addressed this particu-

lar issue, it is hardly a pressing one that requires this

Court’s attention.

This is particularly true in light of Wyman’s

alternative holding that even if the home visits were

Fourth Amendment searches, the searches were

reasonable. The Court employed an analysis that is

very similar to “special needs” test that this Court

has subsequently employed. In Wyman, the Court

explained that the home visit “is not a criminal

investigation, does not equate with a criminal inves-

tigation, and... is not in aid of any criminal proceed-

ing.” 400 U.S. at 323. The Court also discussed in

detail why requiring a government entity to obtain a

warrant for a welfare home visit would be impracti-

cal. Id. at 323-24. Thus, Wyman fits within this

Court’s later developed special needs cases. Griffin,

483 U.S. at 873 (“Although we usually require that a

search be undertaken only pursuant to a warrant

(and thus supported by probable cause, as the Consti-

tution says warrants must be), we have permitted

exceptions when special needs, beyond the normal

need for law enforcement, make the warrant and

probable-cause requirement impracticable.”) (cita-

tions and internal quotation marks omitted). Indeed,

lower courts have cited Wyman as being a special

needs case. Roe, 299 F.3d at 405 (analyzing Wyman as

one of “the Court’s two cases applying the ‘special

needs’ doctrine to investigative home searches”);

McCabe v. Life-Line Ambulance Serv., 77 F.3d 540,

545 (1st Cir. 1996).

A court considering the constitutionality of a

home visit program is highly unlikely to end its

analysis by concluding that a home visit is not a

search within the meaning of the Fourth Amendment.

Rather, a court will do what the Ninth Circuit did

here and what the Seventh Circuit did in Whitburn —

consider whether the home visits are reasonable if

they are Fourth Amendment searches. When resolv-

ing this question, courts will also do what the Ninth

Circuit did here and what the Seventh Circuit did in

Whitburn — consider whether the searches qualify

under this Court’s special needs cases. Accordingly,

even if the portion of the Wyman decision holding

that home visits do not implicate the Fourth Amend-

ment is not good law, there is virtually no chance that

a lower court will reach a conclusion that is inconsis-

tent with Wyman or the Court’s other Fourth

Amendment cases.

THE NINTH CIRCUIT CORRECTLY

CONCLUDED THAT THIS CASE

IS GOVERNED BY WYMAN

Finally, petitioners ask the Court to grant certio-

rari because they assert that the County’s home visits

are distinguishable from the home visits at issue in

Wyman. Since the Ninth Circuit’s decision does not

conflict with Wyman, this not an appropriate ground

for granting certiorari. Rule 10 of the Rules of the

United States Supreme Court. Indeed, “[a] petition

for a writ of certiorari is rarely granted when the

asserted error consists of ... the misapplication

of a properly stated rule of law.” Id. Mureover, the

premise of petitioners’ argument is wrong. The

County’s home visits are not distinguishable from the

home visits that the Court considered in Wyman.

A. The Purpose Of The Home Visits Is To

Confirm Benefit Eligibility.

Petitioners assert that “[t]he express purpose of

[the home visits] is to uncover evidence of fraud in

connection with the welfare application. In addition,

should they find it, ‘the investigators are required to

report evidence of potential criminal wrongdoing for

further investigation and prosecution.” (Petition, at

5) (citations omitted). Petitioners assert that this

“fact” distinguishes this case from Wyman. Petition-

ers are incorrect because they have misstated the

record.

The purpose of the County’s home visit program

is to confirm that applicants are eligible for benefits,

not to detect fraud. (ER 81 Ex. 7 at 19:8-11 (Crosby

Depo.)). Moreover, the record shows that if an inves-

tigator believes that an applicant has committed

welfare fraud in connection with the application, the

investigator will not refer the matter for criminal

investigation or prosecution. (ER 81 Ex. 43 at 89:4-10

(Reid Depo.)). Indeed, it is undisputed that no appli-

cant has been prosecuted for welfare fraud based

upon anything observed or discovered during a home

visit that contradicted information provided by the

applicant in the application or otherwise. (ER 81 Ex.

43 at 89:4-10, 157:1-4, 177:12-25, 191:20-192:6 (Reid

Depo.)). The Ninth Circuit correctly determined that

“[t]here is no evidence ... that applicants have ever

been prosecuted for welfare fraud as a result of

inconsistencies discovered during the home visit,

supporting a conclusion that the visits are

intended, and in fact used, only as an eligibility

verification tool.” Sanchez, 464 F.3d at 924 n.12

(emphasis added).

It is true that if an investigator observes illegal

substances such as drugs during a home visit, she

may report this to the Child Protective Services, who

will take whatever action they deem appropriate. (ER

81 Ex. 41 at 106:22-107:1). Similarly, if the home visit

reveals information that an applicant may have

received CalWORKs benefits in the past for which the

applicant was not entitled, this information may lead

to a subsequent investigation. (ER 81 Ex. 42 at 75:18-

76:5 (Reid Depo.), Ex. 42 at 105:4-12 (Duvall Depo.),

Ex. 42 at 115:13-19 (Crosby Depo.)).

However, this does not mean that the purpose of

the home visits is to aid in criminal enforcement. As

this Court recognized in Wyman, “li]f the visitation

serves to discourage misrepresentation or fraud, such

a byproduct of that visit does not impress upon the

visit itself a dominant criminal investigative aspect.”

400 U.S. at 323. Similarly, the Court stated that “li]f

the visit should, by chance, lead to the discovery of

fraud and a criminal prosecution should follow ...

that is a routine and expected fact of life and a conse-

quence no greater than that which necessarily ensues

upon any other discovery by a citizen of criminal

conduct.” Jd. (footnote omitted).

Accordingly, the purpose of the County’s home

visit program is to confirm eligibility for benefits, not

to investigate fraud or other alleged criminal viola-

tions. Therefore, Wyman cannot be distinguished on

this ground.

B. The Home Visits Are Not Coerced.

Petitioners also argue that unlike Wyman, the

home visits at issue here are coerced. According to

petitioners, “it is difficult to imagine a more coercive

situation than the one created by Project 100%”

because if consent is not given for a home visit, the

applicant will not receive benefits. (Petition, at 19.)

Petitioners are simply wrong. As noted above, in

Wyman, this Court stated that “the visitation in itself

is not forced or compelled, and that the beneficiary's

denial of permission is not a criminal act. If consent

to the visitation is withheld, no visitation takes place.

The aid then never begins or merely ceases, as

the case may be.” 400 U.S. at 317-18) (emphasis

added).

The fact that benefits will not begin if an appli-

cant does not consent to a home visit does not make

the home visit coerced in violation of Wyman.

C. The Investigators Are Not Police Or Uni-

formed Authority.

Petitioners also attempt to distinguish Wyman on

the ground that the individuals making the home

visits in that case were caseworkers, while plaintiffs

characterize the County’s investigators as “sworn

peace officers” and “law-enforcement officers.”

One factor in this Court’s holding in Wyman that

the home visits were reasonable searches (the Court

assumed for the sake of argument that they were

searches) was that the individuals conducting the

home visits were not “police or uniformed authority.”

Id. at 322. The fact that that the home visits were

made by caseworkers, as opposed to some other non-

police, non-uniformed authority, was not germane.

The County investigators, like the caseworkers in

Wyman, have virtually none of the trappings, powers

or job responsibilities as traditional law enforcement

officers or police. The investigators do not wear

uniforms, do not carry weapons of any kind, and do

not have the power to arrest anyone because they

have not been given that power by the D.A.’s Office.

(ER 81 Ex. 10 at 1 (memo), Ex. 10 at 15:12-15 (Crosby

Depo.), Ex. 10 at 58:17-19 (Bogard Depo.); ER 79 at 2,

G 6 (Crosby Decl.)).

Indeed, this Court rejected the distinction peti-

tioners advance in New York v. Burger, 482 U.S. 691

(1987). In that case, the Court upheld the warrantless

inspection of a vehicle-dismantling business by uni-

formed police officers, finding no significance to the

fact that police officers, not administrative agents,

conducted the inspection:

[Wle fail to see any constitutional signifi-

cance in the fact that police officers, rather

than “administrative” agents, are permitted

to conduct the [] inspection. The significance

respondent alleges lies in the role of police

officers as enforcers of the penal laws and in

the officers’ power to arrest for offenses other

than violations of the administrative scheme.

It is, however, important to note that state

police officers, like those in New York, have

numerous duties in addition to those associ-

ated with traditional police work. ... So long

as a regulatory scheme is properly adminis-

trative, it is not rendered illegal by the fact

that the inspecting officer has the power to

arrest individuals for violations other than

those created by the scheme itself.

Id. at 717.

For these reasons, Wyman cannot be distin-

guished on the ground that the County uses investi-

gators to perform the home visits.

D. Rehabilitation Was Not The Primary Pur-

pose Of The Home Visits In Wyman.

Next, petitioners assert that the home visits at

issue in Wyman are different from the home visits in

this case because the Wyman home visits were purely

rehabilitative and involved only “in-home counseling

by a social worker at the kitchen table or in the living

room.” (Petition, at 18.) It is apparent, however, that

the primary purpose of the home visits at issue in

Wyman was to confirm eligibility for benefits — not to

provide “rehabilitation.” In the lower court, New York

asserted that “the home visit is neither a search nor a

seizure, but is merely designed to verify informa-

tion as to eligibility for public assistance and is

thus reasonably related to a valid governmental

policy.... ” James v. Goldberg, 303 F. Supp. 935 at

939 (1969) (emphasis added). This is the same pri-

mary purpose as the Project 100% home visits. New

York also argued that “since the receipt of public

assistance is a privilege, plaintiff is obligated to

provide necessary information so that this privilege

can be recognized and implemented... .” Jd. (citation

and footnote omitted).

The Court also noted that New York had a

“paramount interest and concern in seeing and assur-

ing that the intended and proper objects of that tax-

produced assistance are the ones who benefit from

the aid it dispenses.” Wyman, 400 U.S. at 319. The

Court indicated that the public had a strong interest

in knowing that its funds are being used properly.

The Court likened the home visits to the situation

“where an Internal Revenue agent, in making a

routine civil audit of a taxpayer’s income tax return,

asks that the taxpayer produce for the agent’s review

some proof of a deduction the taxpayer has asserted

to his benefit in the computation of his tax.” Id. at

324. These statements relate to the eligibility confir-

mation component of the home visits and demon-

strate that this Court understood that this was their

primary purpose.

Petitioners’ contention is also inconsistent with

how the dissent viewed New York’s home visit pro-

gram. According to the dissent “the welfare visit is

not some sort of purely benevolent inspection.” Jd. at

339 (Brennan, J., dissenting). Justice Brennan also

noted that “[t]ime and again, in briefs and at oral

argument, appellants emphasized the need to enter

AFDC homes to guard against welfare fraud and

child abuse, both of which are felonies.” Jd. (footnote

omitted). New York also “emphasized the importance

of the visit to provide evidence leading to civil forfei-

tures including elimination of benefits and loss of

child custody.” Jd. at 340.

Thus, both the home visits at issue in Wyman

and the Project 100% home visits share the same

primary purpose — to confirm that the applicant is

eligible for welfare benefits. Thus, the Ninth Circuit

properly concluded that “on Wyman’s first holding

[that the home visits are not Fourth Amendment

searches], there is no greater showing of rehabilita-

tive purpose than there is in this case.” Sanchez, 464

F.3d at 921 n.6. “[T]he search in Wyman had no more

of a rehabilitative purpose than the search here.” Jd.

at n.7.

The Ninth Circuit also properly concluded that

“whether the home visits serve a rehabilitative pur-

pose is not the determinative inquiry under

Wyman.... [T)his factor is relevant insofar as it

indicates that the home visits are not intended as

searches conducted in furtherance of a criminal

investigation.” Jd. In this case, the home visits are

used to confirm eligibility for benefits, not to further a

criminal investigation.

For these reasons, petitioners’ attempt to distin-

guish Wyman on this ground fails.

E. The Home Visits Arc Needed To Confirm

Benefit Eligibility.

Citing a law review article, petitioners contend

that “[e]xperience shows that computer-matching

systems are both more likely to uncover fraud and far

less intrusive on personal privacy.” (Petition, at 19.)

Thus, petitioners contend that the home visits are not

needed. However, petitioners own experts admitted

that the available electronic databases are often out-

of-date and have incomplete information. (Supp. ER

Ex. 2 at 20:13-25, 21:24-22:24, 23:23-25:4, 25:24-26:7,

27:8-11, 29:2-31:13 (Shapiro Depo.))."° Thus, com-

puter-matching systems are not reliable substitutes

for home visits.

Further, in Wyman, the Supreme Court stressed

that secondary sources such as leases, birth certifi-

cates, or interviews with school personnel, “might be

helpful, [but] they would not always assure verifica-

tion of actual residence or of actual physical presence

in the home, which are requisites for AFDC bene-

fits....” 400 U.S. at 322 (footnote omitted). The

admissions of plaintiffs’ experts likewise establish

that computer databases would not always assure

actual residence or physical presence in the home.

'* “Supp. ER” refers to the Supplemental Excerpts of Record

the County filed in the Ninth Circuit.

Moreover, this Court “has repeatedly stated that

reasonableness under the Fourth Amendment does

not require employing the least intrusive means,

because the logic of such elaborate less-restrictive-

alternative arguments could raise insuperable

barriers to the exercise of virtually all search-and-

seizure powers.” Board Of Education v. Earls, 536

U.S. 822, 837 (2002) (emphasis added; internal cita-

tions, quotation marks omitted).

For these reasons, Wyman cannot be distin-

guished on this ground.

F. No Serious Welfare Fraud Problem Is Neces-

sary For The Existence Of A Home Visits

Program.

Petitioners also assert that a “serious welfare-

fraud problem” is needed to justify the County’s home

visit program. (Petition, at 19.) However, no case

establishes that a serious welfare fraud problem is

needed before a government may implement a home

visit program. There was no evidence introduced in

Wyman indicating that New York had a serious

welfare fraud problem. Nonetheless, the home visits

were upheld in that case.

The evidence does establish, however, that the

home visit program has been successful. For the

roughly five-year period before and after Project 100%

was implemented, the overall denial rate increased

from 40.6% to 47.7%. (ER 92 at 2, 98 (Vukotich

Decl.)). Seven percent is a significant increase. When

withdrawals" are added to denials the increase is

even more dramatic, from 47.1% to 58.4% — more

than 11%. (d.)

Moreover, statistics comparing denial rates

before and after Project 100% will never tell the

whole story because they do not capture the pro-

gram’s deterrent effect. People who are not eligible for

CalWORKs benefits and decide not to apply for those

benefits after learning of Project 100% will not be

reflected in those statistics. Thus, the public benefit

of Project 100% cannot be demonstrated by statistics

alone.

Indeed, the public benefits even if the home visit

reveals that an applicant is eligible for CalWORKs

benefits. The taxpayers are entitled to assurance that

their money is being well spent and can take comfort

in the fact that only those who are eligible for benefits

are receiving them.

The County’s home visits program has been

successful and no serious welfare fraud problem is

needed to justify a home visit program.

'' When ineligible applicants learn of the home visit at the

initial interview with the ET, they may choose to withdraw their

application. (ER 92 at 2, 9 9 (Vukotich Decl.)).

G. The Ninth Circuit Did Not Endorse A Home

Visit Program For Taxpayers.

Based on Judge Fisher’s dissenting opinion,

petitioners assert that the Ninth Circuit’s interpreta-

tion of Wyman could be used to justify visits to the

homes of other recipients of government aid programs

such as Medicare or Social Security. In addition,

petitioners assert that, “the reading of Wyman en-

dorsed by the panel below would permit agents of the

Internal Revenue Service to enter and search the

home of any person claiming a dependent as a tax

deduction, in order to verify the claim.” (Petition, at

20.) Petitioners are wrong. Under the CalWORKs

program “eligibility depends, in part, upon a person’s

physical residence in the state and actual presence at

the place designated as their residence... .” Sanchez,

464 F.3d at 927. Further, an applicant may not be

eligible for benefits if a claimed “absent” parent is

actually living in the home. (ER 81 Ex. 8 (Eligibility

Factors)).

For programs such as Medicare and Social! Secu-

rity, eligibility depends entirely on age and prior work

credits.” Thére would be no need and therefore no

justification for home visits to determine eligibility

for those benefit programs because, unlike Cal-

WORKs benefits, presence in a particular state or the

* Judge Fisher also mentioned veteran’s benefits in his

dissent. Eligibility for such benefits depends on prior military

service, not physical presence in a state.

United States is not a requirement to receive those

benefits. Similarly, it is not necessary for a dependent

to reside in the home for a person to able to claim the

dependent as a tax deduction. Thus, there would be

no reason to use a home visit to confirm that a de-

pendent deduction was properly claimed.

CONCLUSION

For all of the foregoing reasons, the Petition for a

Writ or Certiorari should be denied.

DATED: October 17, 2007

Respectfully submitted,

JOHN J. SANSONE, County Counsel

County OF SAN DIEGO

THOMAS D. BUNTON, Senior Deputy*

1600 Pacific Highway, Room 355

San Diego, California 92101-2469

(619) 531-6456

Attorneys for Respondents

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.