Appendix — Goldberg v. Kelly

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(39428) Oftioe-Buprems Court,

_— =

shied JUN 30 1969

Supreme Court of the ——

ae October Term, 1969 |

: No. 62

JACK R. GOLDBERG, Coinmissioner of Social Services,

Appellant,

JOHN KELLY, RUBY SHEAFE,

TERESA NEGRON, et al.,

Appellees.

Appeal from the United States District Court for the

Southern District of New York

APPENDIX

J. Laz Rana

Corporation Counsel of the

City of New York

Attorney for Appellant

Municipal Building

New York, New York 10007

Lzs A. Atszar, Esq.

Hauwny Fazepman, Esq.

Attorneys for Appellees

401 West 117th Street

New York, New York 10027

Jurisdictional Statement Filed March 6, 1969

Probable

TABLE OF CONTENTS

Complaint for Three-Judge Court, Declaratory Judg-

ment and Injunctive Relief’ 0.0.20...

Affidavit of Stephen Wizner in Support of Complaint

Exhibit—Letter Dated January 17, 1968 .............

Affidavit of Marilyn Becker in Support of Complaint

Affidavit of Peter H. Darrow in Support of Complaint

Affidavit of Edward V. Sparer in Support of Com-

I ear i nse aUDicara Tacs tadalan exnaniasioinicesdn ast kes

Notice of Motion for Preliminary Injunction, Con-

vening of Three-Judge Court, and Class Action

RRS, Sle River aes oe iss OCs ee SM RST AN Oe

Affidavit of Henry A. Freedman in Support of Plain-

RT A tat ETC ec ny Ae Ce ee CO

Notice of Defendants’ Motion to Dismiss Complaint

Affidavit of Joel H. Sachs in Support of Defendants’

pr ate tae eee ee

Exhibit A—Newly Adopted Section 351.26 ............

Order to Show Cause in Sheafe v. Wyman

Complaint for Three-Judge Court, Declaratory Judg-

ment and Injunctive Relief 0.0.0.0...

Exhibit A—Notice of Discontinuance of Grant

Dated Pobermary &, 19GB. ....:................0.cscese

Affidavit of Richard Kwasnik in Support of Complaint

Exhibit 1—Decision After Hearing .......................

Exhibit 2—Request for Fair Hearing ..................

Affidavit of Esther Lett in Support of Complaint ....

Affidavit of David Gilman in Support of Complaint ...

Affidavit of Luis M. Neco in Opposition to Plaintiffs’

Motion and in Joinder of Defendants’ Cross-Mo-

i SS ee ee ee Pena

Affidavit of Merrill Charlton in Opposition to Plain-

tiffs’ Motion and in Support of Remaining De-

fendants’ Cross-Motion .............. oad

Notice of Defendants’ Motion to Dismiss Complaint

Affidavit of Joel H. Sachs in Support of Defendants’

NRE eee pee apr tenner canta rire mee ED mr

Supplemental Affidavit of Merrill Charlton in Sup-

port of Defendants’ Motions erect

Exhibit A—Note Dated February 28, 1968 .......

Affidavit of David Gilman in rieeacsasil of Foregoing

Complaint ............... eRe ee ROUTER yee eM TANG):

98a

_ 104a

109a

llla

_ 118a

1l4a

III

PAGE

Supplemental Affidavit of Merrill Charlton in Sup-

port of Defendants’ Motions ...........0..0.0.0.00000000000... 118a

Affidavit of Samuel Felder in Support of Defendants’

RA LT SEER RSD ET EDS Cart Cee RE OE 121a

Supplemental Affidavit of Luis M. Neco in Support of

I he nla dans snois 124a

Supplemental Affidavit of Joel H. Sachs in Support

I I oa ccccncnsncescor nsee 125a

Exhibit—Newly Adopted Section 351.26 127a

OG I cts ices Sess niaicann 131la

Np ee SO oni. asc das usanetpacseninting 139a

Rr Te i se sccususinanccmantacerouapinl 140a

Amending Order of Bryan, D.J. 0000.0. 14la

Notice of Motion for Summary Judgment by Defend-

RE eae: OR ene Rann 143a

Affidavit of Jack R. Goldberg in Support of Defend-

TIME Sec oe a on lee 145a

Affidavit of Jack R. Goldberg in Support of Defend-

RN he ine er ote 147a

Exhibit 1—New Procedure for Clients’ Right of

NIE ihitketecsc ie Colter eens ga tai ee | 149a

Notice of Motion for Summary Judgment by Defend-

I PIN I ich ccs ciecadeccaesccsnsaeceanch sodebncses 150a

PAGE

Affidavit of John H. Sachs in Support of Defendants’

Motions .....:c<c:cscececesesssessseeseersessesscsesennsnansenonenersnsenenenenens 152a

Exhibit A—Newly Adopted Section 351.26 ............ 127a

Exhibit B—Resolution of New York State Board

of Social Welfare ................::-:c::: reer 160a

Exhibit C—Opinion of District Court for the

Northern District of California in WW heeler

v. Montgomery ...........--.:.c cs 162a

Motion to Intervene and for Leave to Intervene as

Plaintiffs eee aons FF Re ae ENS 164a

Intervenors’ Complaint for Declaratory Judgment

and Injunetive Relief ............ Daan) ae

Exhibit A—Affidavit of Marian Davidson __. 200a

Exhibit B—Notice of Suspension of Public As-

sistance to Mr. & Mrs. Mack Fuller ................ 202a

Exhibit C—Notice of Discontinuance of Public

Assistance to Mr. and Mrs. Mack Fuller ..... 204a

Exhibit D—Decision After Fair Hearing in Mat-

ter of Magdalena Mulei ... RG ae

Exhibit E—Notice of Intent to Suspend Public

Assistance to Magdalena Mulei es 208a

Exhibit F—Notice of Discontinuance of Public

Assistance to Maria Fuentes As pet Ra 210a

Exhibit G—Decision After Fair Hearing in the

Case of Maria Fuentes ..................-. . 212a

Exhibit H—Affidavit of Minnie Porter... 214a

Exhibit I—Decision After Fair Hearing in the

Case of Ina Sidor .. aR RE eae othe .. 216a

PAGE

Exhibit J—Notice of Change in Grant to Con-

CTR tale erat belt ee Enc se 218a

Exhibit K—Notice of Discontinuance of Public

Assistance to F. Gomez .......................... 220a

Exhibit L—Notice of Intent to Discontinue Pub-

lie Assistance to Antonio Soto... 222a

Exhibit M—Letter, Dated June 5, 1968 224a

Exhibit N—Notice of Decision, After Review, to

Discontinue Public Assistance to Antonio

ee TGA ken CNN Os 2 oy POE hi RO 226a

Exhibit P—Letter, Dated May 22,1968 230a

Exhibit Q—Notice of Intent to Discontinue Pub-

lie Assistance to Mary Holmes... 232a

Exhibit R—Notice of Discontinuance of Public

Assistance to Mary Holmes... 234a

Plaintiff-Intervenors’ Motion for Preliminary Injune-

ae SS Se A PR NRO 2 IC 236a

Plaintiffs’ Motion to Dissolve Stay of Discovery and

eee rrr 238a

Plaintiffs’ Motion for Leave to Amend Complaint ... 243a

Affidavit of Lee A. Albert in Support of Plaintiffs’

SE ree oe ee Ie Re Oey: 248a

IR aeons a 253a

Affidavit of Clara Eisner in Opposition to Defend-

ants’ Motions for Summary Judgment 257a

PAGE

Affidavit of Neal I. Rosenthal in Opposition to De-

Dameratien® WEAR onan. .siccssscienesesssencseas cde censsasseceivoneess 262a

Exhibit A—Schedule of Fair Hearing Decisions 264a

Affidavit of Harold Weinberger in Opposition to De-

fendants’ Motions ....................::::::cccceseseeeeeeeereneneees 266a

Exhibit A—Schedule of Fair Hearing Decisions 268a

Affidavit of Beaulah E. Saunders in Opposition to

Defendants’ Motions .........................:cccecressseeseecseeess 270a

Affidavit of Allen R. Viani in Opposition to Defend-

NY I ois ccsips sacesnnrwnce nse cenabenstinnanrepedon 0 2028

Affidavit of Donald H. Fuchs in Opposition to De-

ei TIT iiss ncvinn cass cxsnensntcccnsnpeas onions gnanaes 275a

Affidavit of Blanche Grief in Opposition to Defend-

AA NN ccs, cab concn baietinas cnieecndecsataabensconness 277a

Affidavit of Murray J. Hirsh in Opposition to De-

is cc sickons cc cnsesieoncareranenmubeniniteet 279a

Affidavit of Abraham Kaufman in Opposition to De-

I Te causa se ldaaiccsbuhaanbcunspnenndebnrdcibiinatis 281la

Affidavit of James McKeon in Opposition to Defend-

aE PR ois scncece voi nacre vaca eatone . 283a

Affidavit of Ann W. Rosenhaft in Opposition to De-

i hs ls cai aca tanuatsaa oepnahaenl 285a

Affidavit of Francis M. Weldon in Opposition to De-

I Co cauipcpasavtcnibielingnrnapesaaaaineieni 287a

Affidavit of David Gilman in Opposition to Defend-

ON oo seats shes cieaicopnsiiuaeinmnsenahi scheme 289a

ae ie |

PAGE

Affidavit of Richard Greenberg in Opposition to De-

gE RED niyo aaierad ve tare 292a

Affidavit of Cesar A. Perales in ibecaserecte to De-

fendants’ Motions ........ faliacaes . 296a

Plaintiffs’ Exhibit ‘‘18’’ in Opposition to Defend-

ants’ Motions—Decision After Fair Hearing in

Case of Plaintiff Sheafe 0... estes 29BB

Plaintiffs’ Exhibit ‘‘19’’ in Opposition to Defend-

ants’ Motions—Levels of Approval and Review 300a

Plaintiffs’ Exhibit ‘‘20’’ in Opposition to Defend-

ants’ Motions—Article ............... eas 302a

Plaintiffs’ Exhibit ‘‘21’’ in Opposition to Defendants’

Motions—Judgment of Alameda County Supe-

rior Court of California in McCullough v. Ter-

ae Gr ee 304a

Affidavit of Robert B. ania in Support of Defend-

Sr eee eee

Exhibit—Fair Hearing Reports for April 1968 318a

Affidavit of Jack R. Goldberg in Tore of Defend-

I EN sad cantae iced: “pe ibe 320a

Affidavit of Merrill Charlton in Support of Defend-

EI EEA GR eo) EN a Ey SL 322a

Exhibit—Amendment of §352.5 of Title 18, NY

MN Sicpctesilbn fehl ivichemesibnhavecow aikeacinshicsiceck 330a

Affidavit of John J. Loflin in Support of Defendants’

ANNE Ay oe FoI eS Ca Cel ACOA PD Rect OS UR cee A 332a

VItItr

PAGE

Affidavit of Magdalena Mulei in Opposition to De-

Bemtinertin® We on .as.c..a.no..sevessensserscisencicecnssennsgszensens 336a

Affidavit of Alma Coldburn in Opposition to Defend-

rman” WRI oan sassenson0nssns0sosercersnnscntanchinnesenshanenenensan 338a

Affidavit of — Velez in Opposition to Defend-

ants’ Motions . sich sdcds ealansamtanndahataiddbenpeeleeilesiioan . 340a

Affidavit of Marianne Rosenfield in stheoasesastie to De-

fendants’ Motions ........... . 342a

Affidavit of Alma Coldburn in Opposition to Defend-

pnlin® WEGAIGID «.........s:..<0ses.scersesssssersnveessnnes . 346a

Affidavit of Louise Gruner Gans in Opposition to

Defendants’ Motions .....................6.600 wu 0488

Affidavit of Robert B. — in Support of Defend-

mamtin® DECREED .n...........c.ssccscscccccesscssenesceseresnencnnsnensonssons 352a

Affidavit of Joel H. Sachs in seinaritanit of Defendants’

a a osnincaxssnsennnnsannnesnicntnesenonssaasuceannnaseanenpnantunnnas 354a

Exhibit—New Regulation 0.0.0.0... 354a

Affidavit of Robert B. Keyes in mans of Defend-

gen” DEGUIGTE .........50000-.-.0000000s000 . 856a

Exhibit—Fair Hearing Report for June 1968 .... 356a

Affidavit of Joel H. Sachs in Support of Defendants’

DR on. csusscsssessssssnesevnsssennesvansonensessavansvansanneneagsnensoss 358a

Exhibit—Fair Hearing Reports for July and Au-

Bust 19GB nn... eceecccsesseesssecssssnneennesnnensenennnennneten 358a

PAGE

Affidavit of Joel H. Sachs in ee of Defendants’

Motions .. lsahiaiiedlttaaidoscsmbcs cadecatmtiae te Sioiaeunaceicita:

Exhibit—Fair Hearing — for - September

and October 1968 BEEN

Decision After Fair Hearing in Case of Angeline

Velez SALON 5 let AAG aes NM

Opinion of Three-Judge District Court . 365a

Order of Three-Judge Court Ms DG AR 393a

Appellants’ ectsnsecany for weed of District Court

Order .. ve OPE Ne oe A Se Oo OOD . 396a

Denial of Stay by Mr. Justice Harlan 0... 401a

Stipulation Extending Stay to January 13, 1969 . 402a

Notice of Appeal to the Supreme Court of the United

States by Defendants Goldberg, et al... 403a

Notice of Appeal to the Supreme Court of the United

States by Defendants Wyman, et al... 406a

Stipulation >” yeaa aceite of Defendants Wy-

man et al. Ron ee s EY ORGANI,

Order to Transmit Papers a ea 410a

Affidavit of John J. Loflin in Support of Motion for

Order to Transmit Papers ... RATAN

<A e e e C A IR e - cs me

Relevant Docket Entries

68 Civ. 394 John Kelly, et al. vs. George K. Wyman, et al.

Date Proceedings

an. 29-68 Filed complaint and issued summons.

‘eb. 1-68 Filed pltffs’ affdvts. & notice of motion for preliminary

injunction, ete.—ret. 2-13-68.

‘eb. 27-68 Filed Notice of Motion re: Dismiss complaint. Ret. 3/5/68.

far.4-68 Filed Affidavit in opposition to pltfs’. motion and in joinder

of defts. cross-motion.

far. 14-68 Filed Supplemental Affidavit of Merrill Charlton.

far. 25-68 Filed Reply Affidavit.

far. 25-68 Filed Supplemental Affidavit of Merrill Charlton.

pr. 4-68 Filed stip. & order of consolidation of 68 Civ. 864 with 68

Civ. 394 for all purposes, all further docket entries to

be carried under this number (68 Civ. 394).—Bryan, J.

fay 9-68 Filed Affidavit of Jack R. Goldberg. (To Bryan)

fay 17-68 Filed Orrnion #34801. Bryan, J. * * * I will notify the

Chief Judge of this Circuit that the consolidated action

should be heard before a 3-judge court pur. to 28 USC

2281-84. The defendants’ motion to dismiss for failure

to state a claim upon which relief can be granted

should also be heard before the full court. Plaintiffs’

motion for temporary injunctive relief is denied. It

is so ordered. (mailed notice) (Also in 68 Civ. 864)

fay 28-68 Filed order designating a 3 judge court to hear all appli-

cations for temporary & final relief, etc., said 3 judge

court to be designated 6-26-68 at 10:30 a.m. in court-

room 1505.— Bryan, J.— mailed notice (To Judge

Bryan)

Relevant Docket Entries

Date Proceedings

May 28-68 Filed Designation of the following judges, in addition

Hon. Frederick vanPelt Bryan to hear and determi

said cause: Hon. Wilfred Feinberg, U.S. Cireui

Judge, and Hon. Edward C. McLean, U.S. Distri

Judge, S.D.N.Y. Signed Lumbard, Ch. J. U.S.C

May 29-68 Filed notice to counsel of appointment of 3 judge court

hearing set for 6-26-68 at 10:30 A.M. in Rm. 1505.

Clerk

June 10-68 Filed order amending order filed 5-28-68 (see order).

Bryan, J.—mailed notice

June 17-68 Filed deft’s (Goldberg) affdvt. & notice of motion for s

mary judgment—ret. 6-26-68 at 10:30 A.M. in Rm. 1

June 17-68 Filed defts’ (Wyman, et ano.) affdvt. & notice of moti

for summary judgment—ret. 6-26-68 at 10:30 A.M. i

Rm. 1505

June 17-68 Filed pltffs’ affdvt & notice of motion for preliminary i

junction—ret. 6-26-68 at 10 A.M. in Rm. 1505

June 17-68 Filed pltff.-intervenors (Columbia University Center

Social Welfare Policy & Law) notice of motion to inter

vene as pltffs.—ret. 6-26-68 at 10 A.M. in Rm. 1505

June 17-68 Filed pltffs’ affdvt. & notice of motion to dissolve stay 0

discovery & to produce—ret. 6-26-68 at 10 A.M. i

Rm. 1505

June 17-68 Filed pltff.-intervenors’ affdvt. & notice of motion for leav

to amend complaint—ret. 6-26-68 at 10 A.M. in Re

1505

June 24-68 Filed Affidavit of Joel H. Sachs in opposition to motion t

amend complaint.

June 24-68 Filed Affidavits and Exhibits in opposition to defts’. m

tions for summ. judgmt.

COPY BOUR

Relevant Docket Entries

Date Proceedings

ly 8-68 Filed Affidavit of Robert B. Keyes.

ly 8-68 Filed Affidavit of Jack R. Goldberg.

ly 8-68 Filed Affidavit of John J. Loflin. (Also in 68 Civ. 864)

ly 8-68 Filed Affidavit of Magdalena Mulei.

ly 8-68 Filed Affidavit of Angelina Velez.

ly 12-68 Filed Affidavit of Marianne Rosenfield.

ly 12-68 Filed Affidavit of Alma Coldburn. (Also in 68 Civ. 864)

ly 12-68 Filed Affidavit of Louise Gruner Gans. (Also in 68 Civ. 864)

ly 15-68 Filed Affidavit of Robert B. Keyes, and Fair Hearing Re-

port for June 1968.

ily 22-68 Filed Affidavit of Robert B. Keyes.

opt. 12-68 Filed Affidavit of Joel H. Sachs.

ov.26-68 Filed Brief of the United States Amicus Curiae. (Also in

68 Civ. 864)

ov. 26-68 Filed Orrnton #35382 Feinberg, C.J., Bryan and McLean,

D. Judges. (Also in 68 Civ. 864). * * * Plaintiffs’ mo-

tion to amend complaint in the consolidated case is

granted, as is the motion of the 12 intervenors to inter-

vene. Serre Orper on Notice: if defts. desire a stay

pending appellate review, their proposed order should

so provide.

ee. 3-68 Filed Affidavit of Joel H. Sachs, Asst. Attorney Genl.

Yee. 13-68 Filed order defts. enjoined; pltffs’ motion for prel. injunc.

is denied; pltffs’ complaints are deemed amended ; mo-

tion of proposed intervenors to intervene is granted;

pltffs’ motion to dissolve the stay of discovery pro-

ceedings is denied; defts’ motion for summary judg-

ment is denied; this order is stayed to 12-30-68, ete.—

Feinberg, C.J.; Bryan, J. & McLean, J.—mailed notice.

Judgment entered—Clerk (ent. 12-16-68)

—-

) CLOSE IN CENTER

nee ne PRED

Relevant Docket Entries

Date Proceedings

Dec. 26-68 Filed Stip. and Order—extending stay of order of th

Court of 12-13-68 expiring on 12-30-68 to be extendg

to 1-13-69 so as to allow response to the application

the City of New York for a further stay from the

Supreme Court served 12-23-68. So ordered—Fei

berg, CJ; Bryan, J. and McLean, J.

Jan.6-69 Filed deft. Jack R. Goldberg Notice of Appeal to the §

preme Court of the U.S. (with proof of service on L@.

A. Albert, Henry A. Freedman, 401 W. 117th Streqi

N.Y., Louis J. Lefkowitz, 80 Centre Street, N.Y., Edy

L. Weisl, Dept. of Justice, Washington, D.C. and Re

ert M. Morgenthau, Foley Sq., New York

Jan. 8-69 Filed Defs. other than Jack R. Goldberg—Notice of Appe

to the Supreme Court of the U.S.

Feb. 13-69 Filed Order—Clerk of this Court is authorized and direct

to transmit to the Clerk of the Supreme Court all

original papers filed in the office of the Clerk of th

Court which are the record on appeal. The reco

be returned to the Clerk of this Court upon conclusi

of this appeal_—Weinfeld, J.

Apr. 5-68 Filed defts. supplemental affdvt. (Luis M. Neco) to appr

this court of recent developments related to the

stant proceedings.

Apr. 30-68 Filed defts. supplemental affdvt. (Joel H. Sachs) to appn

this court of recent developments related to this 1

stant preceeding.

68 Civ. 864 Ruby Sheafe, et al. vs. George K. Wyman, indiv., etc., et

Feb. 29-68 Filed complaint and issued summons

Mar. 4-68 Filed pltff’s (Sheafe) affdvt. & show cause order for p

liminary injunction—ret. 3-5-68

COPY BOUNC

Relevant Docket Entries

date Proceedings

. 7-68 Filed defts’ (Wyman, et ano.) affdvt. & notice of motion to

dismiss complaint—ret. 3-19-68

. 11-68 Filed summons & return, served defts. by Merrill Charlton

3-7-68

. 14-68 Filed Affidavit in opposition to pltfs. motion for pre. in-

junction.

.4-68 Filed stip. & order consolidating this action with 68 Civ.

394 for all purposes, all further docket entries to be

carried under that number.—Bryan, J. (filed in 68

Civ. 394)

CLOSE IN CENTER

Ar Ce ELM

Order to Show Cause for Temporary

Restraining Order

IN THE

UNITED STATES DISTRICT COURT

For THE SouTHERN District or New YorK

Civil Action No. 394-1968

Joun KE Ly, et al.,

Plaintiffs,

Grorce K. Wyman, et al.,

Defendants.

Let defendants show cause, in Room 506 of the United

States Courthouse, Foley Square, New York, New York,

on the day of January, 1968, at 10:00 a.m., or as soon

thereafter as counsel may be heard, why a temporary re-

straining order pursuant to Title 28 United States Code

Section 2284 should not issue restraining the defendants,

their agents, employees and attorneys and all persons in

active concert and participation with them from

(1) refusing to pay the named plaintiffs herein their

regular public assistance grants, to wit, semi-

monthly payments in the amounts indicated: John

Kelly, $80.05; Randolph Young, $57.00; Juan De

Order to Show Cause for Temporary Restraining Order

Jesus, $56.80; Pearl Frye, $126.00; Pearl McKin-

ney, $155.00; and Altagracia Guzman, $80.00; and

(2) terminating aid to any recipient of public assist-

ance without giving advance written notice stating

the reason for such action and without affording

such recipient an opportunity for a hearing prior

to withdrawal of aid,

pending the hearing and determination of plaintiffs’ mo-

tion for a preliminary injunction by a three-judge court

convened pursuant to Title 28 United States Code Sections

2281 and 2284.

Plaintiffs seek this temporary restraining order on the

grounds that:

1. They are each suffering, or threatened with immi-

nent suffering of, irreparable injury in that they are with-

out means to provide for themselves the basic necessities

of food, clothing and shelter and will continue to suffer

even greater deprivation until they are restored to full

public assistance,

2. The issuance of a temporary restraining order will

not cause undue inconvenience or loss to the defendants

but will prevent irreparable injury to the plaintiffs,

3. The statutes and regulations which deny plaintiffs

a hearing prior to termination, suspension or reduction of

public assistance violate plaintiffs’ rights under the Four-

teenth Amendment to the Constitution of the United States,

and

4. Plaintiffs have no adequate remedy at law, as set

forth more fully in the verified complaint and the affidavits

Order to Show Cause for Temporary Restraining Order

of Edward V. Sparer, Stephen Wizner, Peter H. Darrow

and Marilyn Becker, attached hereto.

Ir Is Ornperep that service of this Order on defendants

on or before .............:0 on the «......5 day of January,

1968 be deemed sufficient.

Done and ordered at the United

States Courthouse, Foley Square,

New York, New York, this ..........

day of January, 1968 at...

United States District Judge

Summons

UNITED STATES DISTRICT COURT

For THE SouTHERN District or New York

[Same TItLE]

To the above named Defendants:

You are hereby summoned and required to serve upon

Harold J. Rothwax, Esq., 320 East 3rd Street, New York,

New York; Mary B. Tarcher, Esq., 11 Park Place, New

York, New York; and Martin Garbus, Esq., 156 5th Ave-

nue, New York, New York, plaintiff’s attorneys, whose ad-

dresses are set out above an answer to the complaint which

is herewith served upon you, within 20 days after service

of this summons upon you, exclusive of the day of service.

If you fail to do so, judgment by default will be taken

against you for the relief demanded in the complaint.

Joun J. Ovear, JR.

Clerk of Court.

Date: January 29, 1968.

[Seal of Court]

10a

Complaint for Three-Judge Court, Declaratory

Judgment, Injunctive Relief

IN THE

UNITED STATES DISTRICT COURT

For tHE SouTHERN DIsTRICT OF New YorK

[Same TitLE]

This is an action for injunctive and declaratory relief

authorized by Title 42 U.S.C. 1983 to secure rights, privi-

leges and immunities established by the Fourteenth ‘Amend-

ment to the Constitution of the United States and the

Social Security Act, Title 42 U.S.C. 301 et seq., and the

regulations promulgated thereunder. Jurisdiction is con-

ferred on this Court by Title 28 U.S.C. 1343(3) and (4)

providing for original jurisdiction of this Court in suits

authorized by Title 42 U.S.C. 1983; and jurisdiction is fur-

ther conferred on this Court by 28 U.S.C. 2201 and 2202

relating to declaratory judgments.

This is a proper case for determination by a three-judge

court pursuant to Title 18 U.S.C. 2281 and 2284, in that it

seeks an injunction to restrain the defendants from apply-

ing, enforcing, executing and implementing Sections 213

(2), 214, 304, 325, 350 (2) (6), and 253 (2) of the New York

Social Services Law, Section 351.22 and 256.4 of Volume

18, Official Compilation of Code, Rules and Regulations of

the State of New York (hereafter referred to as 18 N.Y.C.

R.B.), Sections 84.2-84.23 of 18 N.Y.C.R.R. promulgated

lla

Complaint

by the New York State Board of Social Welfare to super-

sede Section 351.22 and 356.4 on March 1, 1968, and related

statutes, rules and regulations, insofar as these statutes

and regulations require termination or suspension of finan-

cial aid in the form of public assistance [Aid to Families

with Dependent Children (AFDC), Aid to the Aged, Blind

and Disabled (AABD) and Home Relief (HR)] prior to

the granting of adequate notice and opportunity to be

heard, on the grounds of the invalidity of said statutes and

regulations under the Constitution and laws of the United

States.

Ill

This action seeks an injunction and declaratory judg-

ment restraining the enforcement of, and declaring uncon-

stitutional, the aforesaid state statutes and state-wide rules

and regulations, on their face and as applied and inter-

preted by defendants, on the grounds that said statutes,

rules and regulations, and actions taken pursuant thereto,

deprive plaintiffs of the due process of law guaranteed by

the Fourteenth Amendment to the United States Constitu-

tion and, so far as the AFDC and AABD programs are

concerned, deprive plaintiffs of the ‘‘fair hearing’’ guar-

anteed by the Social Security Act, in that said statutes,

rules and regulations deny to plaintiffs an opportunity for

a hearing prior to termination or suspension of financial

aid under the public assistance program.

Plaintiffs John Kelly, Randolph Young, and Juan De

Jesus are adult citizens of the United States and residents

of the City and State of New York who received public

assistance until aid was terminated without notice and

without a hearing.

Plaintiffs Pearl McKinney and Pearl Frye are adult

citizens of the United States and residents of the City and

12a

Complaint

State of New York who received public assistance until aid

was terminated without a hearing.

Plaintiff Altagracia Guzman is an adult citizen of the

United States who faces imminent termination of her pub-

lic assistance benefits if she does not accede to a demand

of the New York City Department of Social Service, for

which demand the Department has no basis in law.

Plaintiffs bring this action pursuant to Rule 23 of the

Federal Rules of Civil Procedure on behalf of themselves

and all other recipients of public assistance who are simi-

larly situated. All public assistance recipients are simi-

larly affected by the statutes, rules and regulations chal-

lenged herein in that all are by statute, rule and regulation

made subject to peremptory ex parte termination of their

aid. The persons in the class are so numerous as to make

joinder impractical; there are common questions of law

and fact; plaintiffs’ claims are typical of the claims of the

class; and the representative plaintiffs will fairly and ade-

cuately protect the interests of the class. The parties op-

posing the class have acted or refused to act on grounds

generally applicable to the class.

Defendant George K. Wyman is the Commissioner of

the Department of Social Services of the State of New

York and is charged with statewide administration of the

public assistance program and with establishing regula-

tions to carry out the statutory provisions of said program.

Defendant Maurice C. Hunt is Acting Commissioner

of the Department of Social Services of the City of New

York and is responsible for administering the public as-

sistance program in the City of New York.

13a

Complaint

Defendants Hugh R. Jones, as Chairman of the State

Board of Social Welfare, and Mrs. Omar Adams, Dorothy

I. Height, Richard G. Kimmerer, John M. Galbraith, Ed-

ward J. Johannes, Jr., Arthur G. Hopkins, Mrs. Monica

M. McConville, John P. Hale, Mrs. Alexander E. Holstein,

Jr., Frederick A. Klingenstein, George F. Berlinger, The-

odore C. Jackson, Jose Lopez, and David Bernstein, as

members of the State Board of Social Welfare, are re-

sponsible for the promulgation of rules governing the poli-

cies and conduct of the Department of Social Services of

the State of New York.

Vil

The aforesaid public assistance programs created by

the New York Social Services law provide financial aid to

certain needy persons. Persons who meet the statutory

criteria receive financial aid as a matter of statutory en-

titlement.

Vill

At all times relevant hereto the State of New York and

defendants, in order to receive federal funds for the Aid

to Families with Dependent Children and Aid to the Aged,

Blind, and Disabled programs, have been required by the

Social Security Act, Title 42 U.S.C. Sec. 301 et seq., to have

formulated a ‘‘state plan’’ for said programs in conform-

ity with the provisions of the Act and the United States

Constitution. The Social Security Act, as interpreted by

regulations of the United States Department of Health,

Education and Welfare, requires that a ‘‘state plan’’ pro-

vide for granting an opportunity for a fair hearing before

the State agency to any individual aggrieved by an action

of a local Department of Social Services.

l4a

Complaint

1D.¢

1. Plaintiff John Kelly is twenty-nine years old and

was a recipient of Home Relief in the amount of $80.05

semi-monthly from August, 1967, until January 1, 1968.

2. Plaintiff Kelly was the victim of a hit and run acci-

dent in June, 1966, which resulted in serious injury, re-

peated hospitalization and inability to work.

3. On December 16, 1967, plaintiff Kelly was ordered

by his caseworker to move out of the Broadway Central

Hotel in which he was then residing and in which he de-

sired to reside and into the Barbara Hotel which charged

equal rates but which Mr. Kelly knew to be inhabited by

drug addicts and drunkards.

4. Plaintiff Kelly moved into the Barbara Hotel as a

result of his caseworker’s order, but moved out of this

hotel within a short time since he considered it a serious

threat to his health and safety. Mr. Kelly moved into the

apartment of a friend.

5. On January 8, 1968, planitiff Kelly was informed by

the hotel desk clerk at the Barbara Hotel where he received

his mail that Mr. Kelly’s caseworker had terminated his

case and had instructed the clerk to return a check which

was mailed to Mr. Kelly for a winter coat which the De-

partment had previously decided Mr. Kelly required.

6. Plaintiff Kelly did not receive his assistance check

due January 16, 1968.

7. Plaintiff Kelly attempted to visit his caseworker at

the Gramercy Welfare Center, 110 East 28th Street, New

York, N.Y. on January 8 and January 16, 1968, and on

both occasions was refused an interview.

15a

Complaint

8. Plaintiff Kelly was informed on both occasions that

his case had been terminated because he had violated his

caseworker’s instructions to move into the Barbara Hotel

and remain there or suffer immediate termination of his

case.

9. On January 23, 1968, a social worker at Mobiliza-

tion for Youth, Inc. telephoned the Gramercy Welfare

Center and was informed that Mr. Kelly’s case had been

terminated. Her efforts to re-open Mr. Kelly’s case were

inffective.

10. Plaintiff Kelly has no assets, no means of support

and remains unable to work pending further surgery which

was occasioned by his 1966 automobile accident. Since his

termination Mr. Kelly has been living on the charity of his

friends.

1. Plaintiff Randolph Young is 40 years old. Until his

case was closed on January 12, 1968, he received Home

Relief assistance in the amount of $57.00 semi-monthly. He

has been on public assistance intermittently since 1957.

2. Plaintiff Young is in bad health and has frequently

been hospitalized.

3. His most recent hospitalization ended January 8,

1968. While in the hospital his public assistance case was

on ‘‘Hospital Suspension’’ and he was not receiving as-

sistance although his case was not closed.

4. After leaving the hospital on January 8, 1968, Mr.

Young received a grant of approximately $20.00 for one

week’s food and rent money. Shortly afterwards he was

beaten up and robbed; the money which was taken was re-

16a

Complaint

placed by the New York City Department of Social Serv-

ices. During this time Mr. Young was looking for a job;

upon obtaining a job he was advanced $5.00 employment

agency fee plus carfare and lunch money by the New York

City Department of Social Services. Due to his ill health

he was not able to keep the job he had obtained since it

required heavy labor.

5. On January 12, 1968 he was informed in a telephone

conversation with his caseworker that his case had been

closed and that he would not receive further public assist-

ance. He was informed that his case had been closed for

mis-management of funds.

6. On January 25, 1968 an attorney from Mobilization

For Youth, Inc. spoke to Mr. Young’s caseworker and was

informed that the case had been closed for mis-manage-

ment of funds and that there was nothing further that the

Department of Social Services would do for Mr. Young.

7. Mr. Young presently has no assets whatsoever and

is living on such money as he can borrow from friends.

1. Plaintiff Juan De Jesus was a recipient of Home

Relief assistance in the amount of $56.80 semi-monthly un-

til January 1, 1968.

2. Plaintiff De Jesus is currently an out-patient at

Bellevue Hospital where he is being treated for a physical

illness which prevents him from working.

3. Plaintiff De Jesus did not receive his public assist-

ance check which was due January 3, 1968. He was given

no advance notice that this check would not be forthcom-

ing.

17a

Complaut

4. Plaintiff De Jesus contacted his caseworker and was

informed that his termination was the result of the fact

that he had failed personally to produce his previous em-

ployer to verify past part-time employment; that he drank

and that he took drugs.

5. Mr. De Jesus had previously presented written veri-

fication of his past employment; he could not produce his

employer personally since the employer had retired and

had moved out of the City of New York. Mr. De Jesus

neither drinks nor takes drugs.

6. A telephone call by a law clerk at Mobilization For

Youth, Inc., to the Gramercy Welfare Center on January

8, 1968, and a letter from a Mobilization For Youth staff

attorney to the Administrator of the Welfare Center have

failed to gain either reinstatement to public assistance or

a statement of grounds for ineligibility.

7. Plaintiff De Jesus is totally without means of sup-

port and has no family. He received temporary shelter

from a friend who is himself a recipient of public assist-

ance, but at present is without shelter or financial assets.

XII

1. Plaintiff Pearl McKinney is a 37 year old recipient

of public assistance in the AFDC category on behalf of

herself and four of her five children. Until January 16,

1968 she regularly received $155 semi-monthly from the

New York City Department of Social Services.

2. In July or August, 1967, Mrs. McKinney’s eldest

son, Marvin, age 19, was removed from her budget on the

ground that he was now competent to care for himself. He

continued to live in Mrs. McKinney’s home, but did not

subsequently receive any public assistance.

18a

Complait

3. In approximately November or December, 1967, Mrs.

McKinney’s caseworker requested during a home visit and

by letter and telephone that Marvin discuss with her his

financial and earning situation. In response, Marvin made

a visit to the Gramercy Welfare Center in November or

December and discussed his earnings with Mrs. McKin-

ney’s caseworker. On information and belief, at that time

he showed Mrs. MeKinney’s caseworker a statement of his

earnings.

4. At a fair hearing on December 26, 1967, Mrs. Me-

Kinney’s caseworker again asked Mrs. McKinney about

Marvin’s earnings and requested a written statement of

his earnings. As a result of this request Mrs. McKinney

obtained a copy of a statement of earnings for Marvin

which she brought to her attorney at Mobilization For

Youth, Inc., on January 15, 1968.

5. By Certified Letter dated January 17, 1968, Stephen

Wizner, Esq., of Mobilization For Youth, Inc., forwarded

to Mrs. McKinney’s caseworker at the Gramercy Welfare

Center a copy of Marvin’s statement of earnings. A re-

turn receipt showing delivery to the Gramercy Welfare

Center was received by Mr. Wizner in response to this

letter.

6. Marvin, although living in Mrs. McKinney’s house,

does not contribute any of his net earnings of $55.41 weekly

to Mrs. McKinney’s household. Marvin is shortly to be

married and will thereupon move out of Mrs. McKinney’s

house; he is saving his money for that event. Further, it

was the belief of Mrs. McKinney and her attorney that

Marvin was not a legally responsible relative of Mrs. Mc-

Kinney’s under the relevant provisions of law. All of the

above facts, as well as the opinion on the law were commu-

19a

Complaint

nicated to Mrs. McKinney’s caseworker in Mr. Wizner’s

letter of January 17, 1968.

7. On January 26, 1968, Mrs. McKinney received a let-

ter from her caseworker stating that her grant of public

assistance had been suspended for ‘‘failure to get to us in-

formation concerning Marvin’s employment.’’ The date of

suspension was January 23, 1968.

8. On information and belief it was improper as a mat-

ter of law to credit any significant amount of Marvin’s in-

come as income to Mrs. McKinney’s household; further,

that even if the entire amount of Marvin’s income were

attributed to Mrs. McKinney, she would still be entitled

to substantial public assistance; further that it would not

be proper to suspend Mrs. McKinney’s entire grant of

public assistance, based upon any conclusion which can be

drawn from the existence of Marvin’s income.

9. Mrs. McKinney presently has absolutely no financial

resources. She has expended all of her January 16, 1968

check for food and other necessities for herself and her

four children and is totally dependent upon receipt of her

February 1, 1968 public assistance grant to provide food

for herself and her four children.

XIII

1. Plaintiff Pearl Frye is the mother of eight chil-

dren ranging in age from 3 years to 15 years. Until De-

cember 1, 1967, she was the recipient of public assistance

in the AFDC category in the amount of $126.00 semi-

monthly.

2. Mrs. Frye has the rent-free use of a house provided

to her by the father of some of her children, who is not

20a

Complaint

her husband. Therefore her regular budget did not include

a grant for rent.

3. The house is owned jointly by the father of her chil-

dren ‘‘and his wife, Minnie’. Mrs. Frye is not named

Minnie and is not the wife of the owner of the house. Mrs.

Frye has no financial interest in the house and she has so

informed the Department of Social Services.

4. Mrs. Frye received her last regular public assistance

check on December 1, 1967. Just prior to December 16,

1967, the expected date of her next check, she received no-

tice from the Department of Social Services stating that

she was being suspended for ‘‘non-cooperation’’ and spe-

cifically for failure to keep an appointment to explain to

the Department of Social Services the ownership 6f the

house in which she lives.

5. At about the time that her case was closed, she re-

ceived two grants of public assistance to enable her to meet

her needs for particular items of clothing and household

furniture. These grants had previously been determined

as necessary by the Department of Social Services. After

the Department ceased to send her regular funds it be-

came necessary for her to expend one of these grants, which

had been given to her for necessary household items, on

food for herself and her children. She was also given sur-

plus food commodities by neighbors who were themselves

on public assistance.

6. In December, 1967, and January Mrs. Frye repeat-

edly spoke with her Department of Social Services case-

worker, a Mr. Clark, and other employees of the Depart-

ment about the closing of her case. She was informed that

if she would bring the father of the Children into the De-

21a

Complaint

partment of Social Services to discuss the ownership of

the house that the Department would reopen her ease.

Mrs. Frye did as she was ordered, but the Department has

nevertheless refused to reopen the case.

7. After closing her case, Mrs. Frye’s caseworker told

her that she should get a job and put her children in a

day care center. As a result of this, Mrs. Frye went to

the South Jamaica Houses Day Care Center; she was there

told that she had too many children for them to handle

and that she should obtain public assistance. She was re-

ferred to a social worker. When she attempted to obtain

employment, she was told by potential employees that she

belonged at home with her children.

8. Mrs. Frye met with Miss Marilyn Becker, a social

worker at the Queens Hospital Neighborhood Health Cen-

ter in the South Jamaica Houses, in the first week of Jan-

uary, 1968. Miss Becker made numerous telephone calls

on behalf of Mrs. Frye and made a personal visit to the

Welfare Center with her.

9. As a result of the social worker’s efforts, Mrs. Frye

received a grant of $135 for food on J anuary 19, 1968. The

grant which Mrs. Frye received for food was of an emer-

gency nature and was produced solely as a result of the

vigorous efforts of an outside social worker. Mrs. Frye

is not now on a regular budget and there is no reason to

believe that this grant will be repeated.

10. Prior to being terminated from public assistance,

Mrs. Frye had made a request for a Fair Hearing to de-

termine the propriety of the Department of Social Serv-

ices’ failure to provide her with adequate grants for neces-

sary clothing and household furnishings. This hearing was

22a

Complamt

scheduled for December 7, 1967. At that time it was ad-

journed for further investigation and, on information and

belief, to enable Mrs. Frye to obtain an attorney.

11. The original adjourned hearing was rescheduled

and held on January 15, 1968. At that time Mrs. Frye’s

attorney attempted to raise the issue of the closing of her

case. Objection was made by the attorney for the Depart-

ment of Social Services on the grounds that the original

request for a Fair Hearing had not included reference to

this issue. This objection was sustained by the State’s

Hearing Examiner and Mrs. Frye’s attorney was not al-

lowed to raise the issue of the closing.

12. The original request for Mrs. Frye’s Fair Hearing

was made prior to the time that her case was suspended ;

the fact of suspension had been known to the Department

of Social Services at least since the middle of December

1967.

13. As a result of the Hearing Examiner’s decision, a

letter requesting a new Fair Hearing on the grounds of

termination was mailed to the State on January 16, 1968.

No hearing has yet been scheduled.

14. Mrs. Frye is in very bad health and is under con-

tinuous doctor’s care. It may shortly be necessary for her

to enter the hospital for a lengthy and arduous series of

diagnostic tests. On January 25, 1968, Mrs. Frye was in-

structed to undertake cancer tests at the hospital. On Jan-

uary 28, 1968 she returned to the hospital for medical care

for an ear infection. She has a stomach disorder appar-

ently resulting from nervousness which has grown worse

during the great hardship of the last two months.

23a

Complaimt

15. The father of some of Mrs. Frye’s children has in

the past sent her $15.00 weekly for the children. However,

he is presently unemployed and has not been making such

contributions regularly. She has received a total of $30.00

from him in the last six weeks.

16. Mrs. Frye currently has approximately $40.00 to

support and maintain herself and her eight children. She

has no other financial assets and no possibility of obtain-

ing any.

XIV

1. Plaintiff Altagracia Guzman is a 29 year old recip-

ient of public assistance in the AFDC category. She reg-

ularly receives $85 semi-monthly on behalf of herself and

her four children, who range in age from 1 month to 9

years. She has received public assistance for a period of

between one and two years.

2. Mrs. Guzman is married but is separated from her

husband. Her husband earns a gross wage of $87.55 weekly.

From this he regularly makes a voluntary contribution of

$20.00 weekly to Mrs. Guzman for the children. In addi-

tion he buys presents and furniture for the household and

acts as a father to the children. He does not live with Mrs.

Guzman.

3. For some time the Department of Social Services

has been attempting to compel Mrs. Guzman to sue her

husband for support. Mrs. Guzman has consistently been

unwilling to do this since she believes that her husband is

now supplying her with support and aid in excess of the

amount that a court would order; further, that his avail-

ability to the children as a father would be diminished if

his relationship to the family were controlled by a court

order. She so advised the Department of Social Services.

24a

Complaint

4. After Mrs. Guzman insisted that she would not be

a part of a suit against her husband the Department of

Social Services determined that they would sue her hus-

band themselves pursuant to the authority of Sections 101

and 102 of the New York Social Services Law.

5. After so deciding the Department of Social Services

endeavored to compel Mrs. Guzman to sign a document au-

thorizing the court to direct that any support payment re-

sulting from suit by the Department be made directly to

the Department.

6. On information and belief Sections 101 and 102 of

the New York Social Services Law empower the Depart-

ment of Social Services to sue a father for support and

that such proceeding does not require the assistance, co-

operation or permission of the mother of the children in-

volved.

7. On at least three separate occasions in January 1968

representatives of the Department called Mrs. Guzman on

the telephone and informed her that if she did not sign

the paper they had given her they would close her case.

8. On January 10, 1968 Mrs. Guzman consulted an at-

torney at Mobilization for Youth, Inc. who advised her that

she could not prevent the Department from suing her hus-

band but that the relevant provisions of the Social Serv-

ices Law did not require her assistance or cooperation.

She was further advised that the paper given to her was

intended for her benefit but that she was not required by

law to sign it. She determined that she would not sign

the paper.

9. As recently as January 25, 1968 Mrs. Guzman spoke

to her unit supervisor at the Department of Social Serv-

25a

Complaint

ices and was told that if she did not sign the paper imme-

diately her case would be closed.

10. On information and belief on January 10, January

23 and January 25, 1968, Mrs. Guzman’s attorney at Mobil-

ization for Youth, Inc., spoke with Mrs. Guzman’s case

supervisor or unit supervisor at the Gramercy Welfare

Center. On cach such occasion he expressed his opinion

that the Department did not require the assistance of Mrs.

Guzman in any way in order to sue her husband. On each

such occasion he was informed that it was Departmental

policy not to sue in the absence of a signed copy of the

paper given to Mrs. Guzman, and that if he did not sign

this paper her case would be closed.

11. On information and belief in his conversation with

the supervisor on January 25, 1968, Mrs. Guzman’s attor-

ney was told that if Mrs. Guzman’s paper was not signed

her case would be closed around February 1, 1968.

12. On information and belief Mrs. Guzman is in im-

minent danger of termination by the Department of Social

Services based upon a policy of the Department which has

no support at law and indeed is contrary to the statutes

of New York State.

13. If Mrs. Guzman’s case is terminated she will be

completely unable to support herself and her four children

or to provide any of the necessities of existence.

Sections 213(2), 304, 325 and 353(2) of the New York

Social Services Law, and 18 N.Y.C.R.R. Section 356.4 as

in effect and as amended by 18 N.Y.C.R.R. Section 82.2-

82.23, effective March 1, 1968, prescribing the hearing pro-

26a

Complaint

cedure in the public assistance program, and Sections 214,

304(6), 325 and 350(2)(b) and 18 N.Y.C.R.R. 351.22 pre-

scribing the manner of termination or suspension of aid in

the public assistance program, on their face, and as inter-

preted and applied to plaintiffs and members of their class,

deprive the plaintiffs of the right of due process of law

guaranteed by the Fourteenth Amendment to the United

States Constitution and, to the extent applicable, of the

‘‘Pair Hearing’’ guaranteed by the Social Security Act in

that said statutes and the regulations adopted in enforce-

ment thereof authorize and require effective action ter-

minating and suspending financial aid prior to the grant-

ing of reasonable notice and opportunity for a hearing

which meets due process standards. The termination and

withdrawal of financial aid may, under the present regula-

tions, extend for a period of several months before a hear-

ing is held and a decision is rendered, even though plain-

tiffs had been receiving such aid and are in vital need of

such aid for food, shelter and medical care and even though

plaintiffs are prepared to prove that they are and have

been eligible. Such deprivation is contrary to the purpose

of the Social Security Act.

XVI

Plaintiffs have no adequate remedy at law and defend-

ants will continue to cause and threaten to cause irrepa-

rable injury to plaintiffs unless enjoined by this Court.

Plaintiffs Kelly, Young and De Jesus will not be afforded

any administrative hearing since they received aid through

the Home Relief program. Plaintiff Frye is awaiting the

hearing she has requested. Plaintiff McKinney only re-

ceived her notice of termination on Friday, January 26.

27a

Complaint

XVII

Plaintiffs have no adequate resources with which to sup-

port themselves and their families in the absence of their

public assistance grants.

Wuererore, plaintiffs respectfully pray on behalf of

themselves and all others similarly situated, that this

Court:

1. Assume jurisdiction of this cause and convene a

three-judge Court pursuant to Title 28 U.S.C. §2281.

2. Enter a temporary restraining order and a prelimi-

nary injunction ordering the defendants to refrain from

1. refusing to pay the named plaintiffs herein

their regular public assistance grants and

2. terminating aid to any recipient of public as-

sistance without giving advance written notice stat-

ing the reasons for such action and without afford-

ing such recipient an opportunity for a hearing prior

to withdrawal of aid.

3. Enter a declaratory judgment pursuant to Title 28

U.S.C. Sections 2201 and 2202 and Rule 57 of the Federal

Rules of Civil Procedure declaring that Sections 213(2),

214, 304, 325, 350(2)(b) and 353(2) of the New York Social

Service Law and related provisions, and the regulations

and rules issued pursuant thereto, violate the Fourteenth

Amendment to the United States Constitution and the So-

cial Security Act on their face and as applied, insofar as

they authorize and require termination or suspension of

public assistance prior to granting reasonable notice and

opportunity for a hearing meeting due process standards.

4. Enter a preliminary and permanent injunction re-

straining the defendants, their successors in office, agents

28a

Complaint

and employees from terminating or suspending the aid of

any public assistance recipient prior to the granting of rea-

sonable and adequate notice and opportunity for a hear-

ing which satisfies the standards of due process of law.

5. Allow plaintiffs their costs herein, grant them and

all others similarly situated such additional or alternative

relief including payment of all monies wrongfully with-

held, as the Court may deem to be just and appropriate.

Respectfully submitted,

Haroup J. Rorowax

Harotp J. Roruwax, Esq.

Attorney for Plaintiffs Kelly,

Young, DeJesus, McKinney

and Guzman

Davin A. Diamonp, Esq.

Srepuen Wizner, Esq.

Of Counsel

Peter H. Darrow

On the Brief

Mary B. Tarcuer, Esq.

Attorney for Plaintiff Frye

Mort Couen, Esq.

Louise Gruner Gans, Esq.

Of Counsel

Martin GarBus

Martin Garsus, Esq.

Attorney for Plaintiffs Roger

Of Counsel Baldwin Foundation of the

Brian Guick, Esq. American Civil Liberties

Henry A. FreepMan, Esq. Union

(Sworn to January 26, 1968.)

29a

Affidavit of Stephen Wizner in Support of

Foregoing Complaint

IN THE

UNITED STATES DISTRICT COURT

For tus Sournern District or New York

(Same Tirie]

State of New York )

County of New York ) ss.:

STEPHEN WizNeER, being duly sworn, deposes and says:

1. That I reside at 640 West End Avenue, New York,

New York.

2. That I am an attorney admitted to practice in the

State of New York, First Judicial Department, and before

the United States District Court and United States Court

of Appeals for the District of Columbia.

3. That from June, 1966, to August, 1967, I was em-

ployed as a litigation attorney at the Center on Social Wel-

fare Policy and Law, Columbia University School of So-

cial Work, and in that capacity had extensive experience

in representation of welfare recipients, both on an admin-

istrative hearing level and in state and federal litigation.

4. That I am currently employed as an attorney in the

Legal Unit of Mobilization For Youth, Inec., 320 East 3rd

Street, New York, New York.

5. That in this capacity I have represented Mrs. Pearl

McKinney as her attorney from August 7, 1967, to the

present.

30a

Affidavit of Stephen Wizner

6. That the major part of my legal representation of

Mrs. McKinney has consisted of assisting her in problems

which she has had with the New York City Department of

Social Services.

7. That in May, 1967 the rent for Mrs. McKinney’s

apartment in the Lillian Wald Houses of the New York

City Housing Authority was increased from $66.80 per

month to $81.80 per month.

8. That the New York City Department of Social Ser-

vices was at that time, and has been at all times reievant

to this action, obligated to pay the rent ef Mrs. McKinney,

and was therefore obligated to increase Mrs. McKinney’s

grant for rent to reflect her increased rental payments.

9. That the Department did not provide that increase

until a fair hearing was held on November 14, 1967, and

as a result Mrs. McKinney was served with eviction pe-

titions dated August 23, 1967, and September 11, 1967, and

a notice to vacate dated October, 1967, all for non-payment

of the increased amount of rent.

10. That it was only because of my appearance in

Landlord-Tenant Court, and my intercession with the

manager of the Lillian Wald Housing Project and with the

attorney for the New York City Housing Authority, on be-

half of Mrs. McKinney that she and her children were not

evicted from their apartment.

11. That on numerous occasions during August, Sep-

tember, and October of 1967 I communicated with the De-

partment of Social Services by telephone and letter in an

attempt to persuade the Department to increase Mrs. Me-

Kinney’s rent allowance and to furnish her a special grant

to cover the back rent which she owed as a result of the

3la

Affidavit of Stephen Wizner

rent increase. My efforts were unsuccessful, despite the

fact that the Department’s obligation to comply with my

requests was clear as a matter of law.

12. That on October 23, 1967, the date originally sched-

uled for the fair hearing, representatives of the Depart-

ment were unable to advise the presiding Referee whether

the Department intended to comply with Mrs. McKinney’s

requests because the Department had failed to carry out

an investigation of the matters involved in Mrs. McKin-

ney’s request for a fair hearing, despite the fact that all

issues submitted by Mrs. McKinney had been brought to

the attention of the Department, both by myself and by

Mrs. McKinney, on numerous occasions during August,

September, and October of 1967.

13. That as a result of the Department’s failure to

prepare for the hearing, the Referee adjourned the hear-

ing and ordered the Department to prepare a report to be

submitted to him and to the attorneys for the respective

parties.

14. That on November 14, 1967, Mrs. McKinney’s hear-

ing was resumed, and at the outset of the hearing, without

in any manner contesting the issue, the representatives of

the Department announced that Mrs. McKinney’s recur-

ring rent allowance would be increased to reflect the in-

crease in rent, and that she would receive a special grant

to cover the back rent which she owed as a result of the

rent increase. No explanation was offered for the Depart-

ment’s arbitrary actions, either to Mrs. McKinney or to

the Referee.

15. That at the same hearing, again without in any

manner contesting the issues, the representatives of the

Department announced that a special grant had been au-

32a

Affidavit of Stephen Wiener

thorized to Mrs. McKinney for essential articles of cloth-

ing and household items which had been repeatedly re-

quested, both by myself and by Mrs. McKinney, during

August, September, and October of 1967.

16. That the Referee presiding at the hearing on No-

vember 14, 1967, adjourned Mrs. McKinney’s hearing

again, on the ground that he had not been the Referee pre-

siding on the date originally scheduled for the hearing and

that that Referee should hear and decide any issues re-

maining to be resolved.

17. That on December 26, 1967, Mrs. MeKinney’s hear-

ing was resumed before a third Refere , The hearing was

again adjourned to permit the Department to carry out

additional investigation of still unresolved issues relating

to Mrs. McKinney’s need for certain essential household

items.

18. That I am confident that when the hearing is re-

sumed for the fourth time the Department will concede

these issues just as it has conceded all other issues raised by

Mrs. McKinney’s original request for a fair hearing dated

September 14, 1967.

19. That on information and belief during November

or December of 1967 Mrs. McKinney’s caseworker from

the Department of Social Services requested that Mrs.

McKinney’s 19 year old son, Marvin, who had previously

been removed from her budget but continued to live in the

home, discuss his earnings with the caseworker.

90. That on information and belief, thereafter, during

November or December of 1967, Marvin visited the Gram-

ercy Welfare Center of the Department of Social Services

33a

Affidavit of Stephen Wizner

and discussed his earnings with Mrs. McKinney’s case-

worker, and at that time he showed the caseworker a state-

ment of his earnings.

21. That during the hearing held on December 26,

1967, representatives of the Department again asked Mrs.

McKinney about her son’s earnings.

22. That on January 15, 1968, Mrs. McKinney brought

to my office a copy of a weekly statement of earnings which

her son had obtained from his employer.

23. That by certified letter dated January 17, 1968, I

forwarded this document to Mrs. McKinney’s caseworker

at the Gramerey Welfare Center. A return receipt signed

by the Center acknowledging receipt of my letter on Jan-

uary 18, 1968, was returned to me by the post office. Copies

of the aforesaid letter and receipt are annexed hereto.

24. That on information and belief Mrs. MeKinney’s

son has never contributed any of his weekly net earnings

of $55.41 to his mother’s household expenses.

25. That on information and belief Mrs. MeKinney’s

son plans to be married in the immediate future and will

thereupon move out of his mother’s house; he is saving his

money for that event.

26. That under relevant New York statutes and regu-

lations Mrs. MeKinney’s son is not a legally responsible

relative and is therefore not required to contribute to her

support.

27. That all of the foregoing facts were communicated

to Mrs. McKinney’s caseworker by me orally at the hear-

34a

Affidavit of Stephen Wizner

ing on December 26, 1967, and in my letter of January 17,

1968.

28. That on January 26, 1968, Mrs. McKinney received

a letter from her caseworker stating that the recurring

grant of public assistance for herself and her children had

been suspended as of January 23, 1968, for ‘‘failure to get

to us information concerning Marvin’s employment.’’

29. That this arbitrary and erroneous action on the

part of the Department of Social Services was without any

justification in fact or law.

30. That it is my belief that Mrs. McKinney will be

restored to recipient status at a fair hearing.

31. That it is my further belief that the Department of

Social Services never at any time seriously contested any

of Mrs. McKinney’s requests, and that the six month

delay between the time of the rent increase and the pay-

ment of the increased rent by the Department was occa-

sioned primarily by bureaucratic rigidity under which the

Department functions.

32. That the Department of Social Services failed to

give serious consideration to the merits of Mrs. McKin-

ney’s requests until compelled to do so by appearance at a

fair hearing, an administrative appellate proceeding.

33. That the same failure to conform to proper be-

havior as required by law is present in the Department's

suspension of Mrs. McKinney as was present in the De-

partment’s failure to increase her rent grant.

34. That Mrs. McKinney now faces serious economic

hardship solely because the Department is not required to

35a

Affidavit of Stephen Wiener

submit the propriety of its most critical decision, the de-

cision to suspend a recipient, to a neutral tribunal prior to

implementing this decision.

35. That the present procedure of review subsequent

to suspension or termination results in serious damage to

welfare recipients which would be prevented by a require-

ment of hearings prior to suspension, and the existing pro-

cedure is solely responsible for the present suspension of

Mrs. McKinney and her children.

Stephen Wizner

(Sworn to January 28, 1968.)

36a

Exhibit Annexed to Foregoing Affidavit

Letter Dated January 17, 1968

January 17, 1968

Miss Cottrell, Investigator

Gramercy Welfare Center

110 East 28th Street

New York, New York

Re: Pearl McKinney

40 Avenue D

New York, New York

ADC 2387410 02-5

Dear Miss Cottrell:

With reference to the above-captioned matter, enclosed

please find an estimate for a wringer-type washing ma-

chine from Sears, Roebuck and Co.; an estimate for reup-

holstering of the kitchen chairs; and a statement of earn-

ings for Mrs. McKinney’s son Marvin.

You will note that Marvin’s take-home pay is $55.41. He

has never contributed anything to the household expenses

and is not a legally responsible relative. Moreover, he is

planning to get married within the next week and should

be out of the house no later than January 26, 1968.

Yours truly,

Stephen Wizner

Staff Attorney

37a

Affidavit of Marilyn Becker in Support of

Foregoing Complaint

IN THE

UNITED STATES DISTRICT COURT

For tHe Soutuern Districr or New York

{Same Tite]

State of New York )

County of New York ) ss.:

Marityn Becker, being duly sworn, deposes and says:

I am a psychiatrist social worker at the Neighborhood

Help Center of Queens General Hospital, 106-56 160th

Street, South Jamaica, Queens, New York.

On January 9, 1968, Pearl Frye came to the Neighbor-

hood Help Center. She told me that she needed food for

her eight children and help in her difficulties with the De-

partment of Welfare; she had been referred to our clinic

by the Jamaica Day Care Center.

Pearl Frye told me that she and the children had been

receiving public assistance until the middle of December,

1967, at which time she and her eight children had been

summarily ‘‘cut off’? from further assistance. She did not

really understand the reason for the suspension of the

Welfare payments, but mentioned something about a mort-

gage and a missed appointment.

Pearl Frye told me that during the past few weeks she

and her children had gone hungry and that they had been

living on peanut butter and jelly sandwiches and tice. She

had desperately tried to find a job but had been unsue-

cessful.

38a

Affidavit of Marilyn Becker

I immediately telephoned Miss Frye’s caseworker, Mr.

Clark, and asked that the case be reopened. Mr. Clark told

me that this could not be done because there were ques-

tions about Pearl Frye’s eligibility and because her ‘“hoy-

friend’’ was living with her. I asked Mr. Clark whether

he had any proof of the latter charge, but he stated that

he did not have to answer this question.

The next day, January 10, 1968, I accompanied Miss

Frye to her Welfare Center to see Mr. Clark in person in

order to apply for emergency assistance for her. Mr.

Clark denied the request for emergency assistance. He

again mentioned her possible ineligibility and explained

that Miss Frye had been ‘‘technically suspended”’ for fail-

ure to keep two appointments with the Central Office’s

Resources Department to which she was supposed to ex-

plain the ownership of the house where she was living rent

free. Mr. Clark again referred to Miss Frye’s ‘‘boy-

friend’”’ and suggested that she ought to get money from

him. Mr. Clark was referring to Mr. Frye, father of six

of Miss Frye’s children. I explained to Mr. Clark that Mr.

Frye was unemployed and could not help. Mr. Clark re-

peated that because of the technical suspension, no emer-

gency money for food could be allowed. He could only

suggest that Miss Frye get a job, or in the last resort that

she leave her home and move with the children to a Wom-

en’s Shelter.

I then spoke with Mrs. Leschnauer, an Assistant Admin-

istrator for the Welfare Center, but she only affirmed Mr.

Clark’s position that because of the ‘‘technical suspen-

sion’’, no emergency money for food could be given to

Miss F rye.

After leaving the Welfare Center, I telephoned the

Central Office’s Information and Adjustment Bureau and

told them of Miss Frye’s situation. The woman I spoke

to told me that she would check into the matter, and later

39a

Affidavit of Marilyn Becker

in the day I received a call from a Miss Jones who again

informed me that in the case of a ‘‘technical suspension,’’

no emergency assistance could be provided even for food.

At my insistence, Miss Jones agreed to check further on

this question with her supervisor. The next day, January

11, 1968, I was telephoned by the Central Office and in-

formed that a check for one month’s supply of food would

be issued to Miss Frye.

I understand that the actual check for $135 did not

reach Miss Frye until January 19, 1968, eight days after

I had been told that it was being issued.

Marilyn Becker

(Sworn to January 29, 1968.)

40a

Affidavit of Peter H. Darrow in Support of

Foregoing Complaint

IN THE

UNITED STATES DISTRICT COURT

For tue Sovrnern District or New York

[Same Trt.e]

State of New York )

County of New York ) ss.:

Perer H. Darrow, being duly sworn deposes and says:

1. That I reside at 135 Ridge Street, New York, New

York.

2. That I am presently employed as a VISTA Volun-

teer assigned to Mobilization For Youth Legal Services

Unit, 320 East 3rd Street, New York, New York as a staff

attorney.

3. That I am a graduate of the University of Chicago

Law School and that, although not yet admitted to prac-

tice, I am permitted to engage in limited representations

of clients under New York Penal Law Section 270 and by

order of the New York Appellate Division wpon the appli-

eation of Mobilization For Youth, Inc., March 9, 1967.

4. That from September, 1967, to the present I have

represented appreximately one hundred Welfare recipients

in their so-called ‘‘fair hearings’’ contesting the failure of

the New York City Department of Social Services to issue

grants to provide for adequate shelter, clothing, home fur-

nishings, and medical care.

4la

Affidavit of Peter H. Darrow

5. That since September, 1967, I have assisted numer-

ous other recipients in their day to day dealings with their

caseworkers and their caseworkers’ supervisors. Usually,

such representation has been merely by telephone but oc-

casionally it has involved lengthy conferences involving

extensive examination of client’s usually confidential case

records to negotiate the issues for which termination of

the recipient is threatened or has occurred.

6. That in the majority of fair hearings in which I

have appeared as representative for the recipient, the New

York City Department of Social Services has not contested

either the recipient’s contentions of law or fact, but has

merely submitted evidence at the hearing that all or sub-

stantially all of the recipient’s requests have been met by

a grant issued within a week or less of the hearing date.

7. That I have several times negotiated at length with

the caseworkers and supervisors over the termination of

recipients. In every case, the decision to terminate has

been made by the caseworker and supervisor based either

on improper conclusions as to the requirements of the

statutes and regulations or on an incomplete examination

of evidence.

8. That I have represented two recipients who were

terminated for forgery of welfare checks. One was re-

stored after my examination of the Department’s hand

writing expert revealed that the forged signature was not

that of the recipient; the other was restored because no

attempts to examine the signatures had ever been made.

A third recipient was terminated for failure to respond to

letters from his caseworker without any effort to ascer-

tain either delivery or actual receipt of those letters. He

too was restored.

42a

Affidavit of Peter H. Darrow

9. That in my opinion, such improper results may be

ascribed to malice or incompetence in few cases. Thus, in

all three of the above examples the caseworkers involved

sought to be ‘‘fair’’. In my opinion, such results are in-

evitable if Social Service caseworkers are required to

function both as invesi.gator and decision-maker.

10. That, in my opinion, only an impartial fact-finding

tribunal is able to make just findings from sorting case-

workers’ suspicions from valid and supportable allegations.

11. That my experience indicates to me that hearings

are effective in guaranteeing fair and impartial determi-

nations in the administration of grants. That my expe-

rience in negotiating the issues leading to termination in-

dicates to be that the availability of a hearing before

termination would guarantee more impartial determina-

tions of those issues.

12. That recipients who are terminated under present

regulations are forced to suffer irreparable harm since

they may only begin to process their appeal after termina-

tion. It is often several months until a determination of

the appeal is made. During the entire intervening period

the recipient is left without funds.

13. That plaintiffs Kelly, Young, and DeJesus are pres-

ently suffering such serious and irreparable harm as they

pursue their suits in this court.

14. That on Wednesday, January 24, 1968, I was able

to assist plaintiff Kelly in obtaining a ten dollar loan from

a Mobilization for Youth, Inc. small loan fund. Plaintiff

Kelly has informed me that he has no other resources.

43a

Affidavit of Peter H. Darrow

15. That on Friday, January 26, 1968, I assisted plain-

tiff Young in obtaining a one dollar fifty cent loan from the

same loan fund which he informed me he would make last

the weekend ‘‘and until I got put back on.’’

16. That plaintiff DeJesus visited my office on Friday,

January 26, 1968, and, said loan fund being depleted, was

turned back into the street with the assurance that we

would do our best to have him restored. He left our office

without resources to seek shelter and food.

17. That it is the result of the unavailability of a prior

hearing that plaintiffs are suffering such irreparable harm.

Peter H. Darrow

(Sworn to January 29, 1968.)

44a

Affidavit of Edward V. Sparer in Support of

Foregoing Complaint

IN THE

UNITED STATES DISTRICT COURT

For THE Sovrnern District or New York

[Same Tite]

State of New York )

County of New York ) ss.:

Epwarp V. Sparer, being duly sworn, deposes and says:

1. Iam a member of the faculty of the Yale Law School

where, among other things, I teach the law of public as-

sistance. I am also a member of the bars of the State of

New York and the United States District Court for the

Southern and Eastern Districts of New York. I reside

at No. 293A, Old Toll Road, Madison, Connecticut. I sub-

mit this affidavit in support of Plaintiffs motion for a

temporary restraining order, preliminary and permanent

injunction prohibiting the defendants from terminating

welfare assistance without affording a prior hearing to

those who request it.

2. At the present time, and for the past two and one-

half years (commencing in September of 1965) I have

consulted with counsel or actively participated as counsel

in litigation and ‘‘fair hearing’’ procedures for numerous

welfare recipients and applicants in various parts of the

United States, including New York. During the same

period of time I have lectured before numerous groups 0%

lawyers (representing welfare recipients), welfare recip-

ients and welfare caseworkers in many parts of the United

States, including New York. In the course of these activ-

ities, I have made personal acquaintance and friendship

45a

Affidavit of Edward V. Sparer

with welfare recipients and, on this more intimate basis,

have come to better understand their fears and problems

in dealing with welfare administration.

3. As a consequence of the activities referred to in

paragraph (2) above, and of those described in paragraph

(4) below, I have seen, again and again, the dire and ir-

reparable effects of the failure to grant administrative

‘‘fair hearings’’ prior to the termination of welfare as-

sistance. In such diverse places as Georgia, North Car-

olina, New York, Michigan, Mississippi and California,

the effects have been the same. Recipients are terminated

from assistance they desperately need for their survival

and that of their children; they are cast into deep fear, an-

guish and physical suffering; if they are fortunate enough

to be informed of their right to a hearing and obtain as-

sistance in the hearing, they may—and often have—won a

determination that their cutoff was illegal. In no case, how-

ever, is there a mechanism for making them whole from

the anguish and physical suffering caused. Indeed, none

can be imagined.

4. (a) I have particular acquaintance with the conse-

quences of the failure of New York State and city welfare

(social services) authorities to afford a ‘‘fair hearing’’

prior to the termination of welfare benefits where the re-

cipients disagree with the reasons for termination. In

addition to my activities since 1965, referred to in para-

graph (2) above, I was—for two years prior to that date

—attorney for well over one hundred welfare clients in the

City of New York. Additionally, over a period of time, I

have acquainted myself with relevant public investigations

of the welfare system in New York and statistics concern-

ing its operation.

(b) I have personally represented scores of persons in

New York who were terminated or denied welfare assist-

46a

Affidavit of Edward V. Sparer

ance without an opportunity for a prior hearing. Of these,

I do not recall a single case in which public assistance aid

was not restored, either as a result of hearing decision or

settlement by the local welfare agency prior to the sched-

uled hearing. I do not recall a single one of these cases in

which great suffering, mental and physical did not occur

as a result of the initial adverse decision. I do have vivid

memories of the suffering which was caused. None of my

clients were made whole for their suffering.

given an award which, in monetary terms, accounted for all

their losses during the period of wrongful termination,

such an award could not—of course—remedy the hunger

and anguish caused during that period. However, under

New York welfare regulations, and the manner in which

they are interpreted in practice, recipients are not made

whole even for the monetary losses they suffered. Rather,

recipients may be made whole, in monetary terms, only for

a two month period preceding the month in which the hear-

ing was decided. In addition, there is considerable un-

certainty in practice as to whether recipients are confined,

in a retroactive award, to provable debts. Thus, for ex-

ample, if the individual did not incur a provable debt for

food, he may not receive a retroactive award for the loss

of money spent on food.

(d) It has been a common occurrence, in my experience,

for recipients to be denied welfare assistance for thorough-

ly unclear and vague reasons—such as ‘‘lack of coopera-

tion’’—or for no stated reason at all. The Moreland Com-

mission Report on Public Welfare in the State of New

York (1963) made clear that this phenomenon was by no

means confined to New York City. Thus it states (p. 27):

Similarly, when cases are closed, are reasons given?

Again—not always. In one county, for example,

47a

Affidavit of Edward V. Sparer

35.7 percent of those interviewed claimed they were

not told why assistance was cut off, and the case

records failed to indicate that the former recipient

had been given a reason.

Such recipients, of course, have no fair or real forum to

learn and examine the reason for their termination until

after they are already suffering the painful effects of their

termination.

(e) It is also clear from the statistics of the New York

State Department of Social Services that my experiences

on wrongful decisions corrected after ‘‘fair hearing’’ ap-

peals are made are not especially unique. Thus, for ex-

ample, during the year 1966, of 427 hearing requests dis-

posed of, 305 resulted in a settlement with the local agency

or a decision favorable to claimant and most of the others

were discontinued rather than decided adversely. Like-

wise, claimants achieved favorable results in 117 of 181

hearing requests disposed of in 1965.

(f) It is my belief that it is extremely difficult to ob-

tain financial aid from the voluntary charities in New York

City for welfare recipients who have been terminated,

pending a decision on their appeal. During the year 1964,

for example, the plight of a mother with twelve children

who was terminated from all welfare assistance and had

no other income was brought to my attention. After ar-

ranging for an attorney for this family, I sought to obtain

financial assistance from several of the major voluntary

charities. I was joined in this effort by a former director

of the New York City Social Service Department’s Child

Welfare Division. Our best efforts failed. I gave my own

money to pay the children’s food bills for a several week

period.

48a

Affidavit of Edward V. Sparer

(g) My experience with welfare clients who have been

wrongfully terminated or denied assistance has been that

their need is immediate and that the crisis caused by their

termination or denial is immediate. As a logical matter,

aside from my experience, such immediate needs and crises

must follow termination if the termination is wrongful;

under the New York welfare system, a wrongful termina-

tion necessarily means that the family is in need of aid at

the time of termination. For that reason, holding hearings

within shorter periods of time after termination (than now

occurs) helps a little but does not cure the problem. So

long as the hearing is after the termination, rather than

before, some large suffering must occur.

5. As a result of my personal experience and interac-

tion with welfare recipients in New York and elsewhere, I

have learned that there is great fear upon the part of re-

cipients to disagree with caseworkers even when the re-

cipients are convinced that the caseworkers are wrong.

The recipients know that their caseworker and his super-

visor can quickly and arbitrarily terminate their aid. The

recipients also know that later vindication will not relieve

their suffering until after that vindication. For this rea-

son, welfare recipients are in an inherently unequal posi-

tion vis a vis the agency, accede to demands—such as

searches, answer unnecessary and humiliating questions,

and generally agree with caseworkers where they think

they ought not agree. In my opinion, prior hearings are

essential to remedy this degrading situation for millions

of our fellow citizens. For this reason, as well as because

of those experiences hitherto stated, I have submitted this

affidavit.

Edward V. Sparer

(Sworn to January 28, 1968.)

49a

Notice of Motion for Preliminary Injunction,

Convening of Three-Judge Court and

Class Action Order

IN THE

UNITED STATES DISTRICT COURT

For tHe SoutHern District or New York

{Same Trrte]

To the defendants:

Please take notice that the plaintiffs will bring on for

hearing before the United States District Court in Room

506 of the United States Courthouse, Foley Square, New

York, New York, on February 13, 1968 at 10:00 a.m. or as

soon thereafter as counsel may be heard a motion seeking

the following relief:

1. A preliminary injunction enjoining the defendants,

their agents, employees and attorneys and all persons in

active concert and participation with them from:

(1) refusing to pay the named plaintiffs herein their

regular public assistance grants, to wit, semi-

monthly payments in the amounts indicated: John

Kelly, $80.05; Randolph Young, $57.00; Juan De-

Jesus, $56.80; Pearl Frye, $126.00; Pearl McKin-

ney, $155.00; and Altagracia Guzman, $80.00; and

(2) suspending or terminating aid to any recipient of

public assistance without giving advance written

50a

Notice of Motion

notice stating the reason for such action and with-

out affording such recipient an opportunity for

a due process hearing prior to withdrawal of aid.

The grounds of this motion, as more fully set forth in

the verified complaint filed January 29, 1968, and the an-

nexed affidavits of Henry A. Freedman, dated February 1,

1968; Edward V. Sparer, dated January 28, 1968; Stephen

Wizner, dated January 28, 1968; Peter H. Darrow, dated

January 29, 1968; and Marilyn Becker, dated January 29,

1968, are that:

a. Plaintiffs and all members of the class are either

suffering or threatened with irreparable injury in that they

are now, or may at any time be, without means to provide

for themselves the basic necessities of food, clothing and

shelter.

b. The issuance of a preliminary injunction will not

cause undue inconvenience or loss to the defendants but

will prevent irreparable injury to the plaintiffs.

ce. The statutes and regulations which deny plaintiffs

a hearing prior to termination or suspension of public as-

sistance violate plaintiffs’ rights under the Fourteenth

Amendment to the Constitution of the United States.

d. Plaintiffs have no adequate remedy at law.

2. The convening of a statutory court of three judges

for the purpose of hearing and determining this applica-

tion for a preliminary injunction and this cause, in accord-

ance with the provisions of Title 28 United States Code

Sections 2281 and 2284.

3. An order determining that this action may properly

proceed as a class action pursuant to Rules 23(a) and 23(b)

(2) of the Federal Rules of Civil Procedure.

5la

Notice of Motion

Piease Take Furtuer Notice that opposing affidavits

and answering memoranda must be served upon counsel for

plaintiffs at least three days before the return day of this

motion.

Of Counsel:

Brian Guicx, Esq.

Henry A. FreepMan, Esq.

Harotp J. Roruwax, Esq.

Attorney for Plaintiffs

Kelly, Young, DeJesus,

Guzman and McKinney

Mary B. Tarcuer, Esq.

Attorney for Plaintiff Frye

Mort Couen, Esq.

Louise Gruner Gans, Esq.

Of Counsel

Martin Garsus, Esq.

Attorney for Plaintiffs

Roger Baldwin Fund of the

American Civil Liberties

Union

52a

Affidavit of Henry A. Freedman in Support of

Foregoing Motion

IN THE

UNITED STATES DISTRICT COURT

For tHE Soutuern District or New York

[Same Tite]

State of New York )

County of New York ) ss.:

Henry A. FreepMan, being duly sworn, deposes and

says:

1. I veside at 150 West 96th Street, New York, N.Y.

I am an attorney admitted to practice in the State of New

York and am of counsel to the attorneys for plaintiffs in

this action. I make this affidavit in support of plaintiffs’

motion for preliminary injunction, convening of a three-

judge court, and class action order.

2. This action for declaratory and injunctive relief

challenges the constitutionality of the suspension or ter-

mination of public assistance and without prior notice and

a due process hearing, as is more fully set forth in the

verified complaint and the Memorandum of Points and Au- |

thorities submitted together with this motion.

3. Plaintiffs commenced this action on January 29,

1968 by filing a summons and complaint. They thereafter

presented Judge Thomas F. Murphy with a proposed Order

to Show Cause for a Temporary Restraining Order on the

ground that termination or threatened termination of as-

sistance had caused, and was further threatening them with, —

53a

Affidavit of Henry A. Freedman

immediate and irreparable injury. Counsel for the defend-

ants were notified by counsel for the Plaintiffs and ap-

peared at Judge Murphy’s chambers. Judge Murphy did

not sign the order, stating:

‘I have refused to sign this order to show cause

because no sufficient reason appears in the affds. as

required by our Rules.’’

5. On information and belief, the Department of Social

Services of the City of New York has now restored Plain-

tiffs McKinney and De Jesus to full current, but not retro-

active, public assistance benefits, thereby admitting the

wrongful nature of the original suspension or termination.

6. On information and belief, Plaintiffs Kelly, Young,

and Frye have not been restored to full aid and continue

to suffer irreparable injury. Speedy determination of this

motion is therefore of the greatest urgency.

7. Plaintiffs have made no other application for this

relief other than that stated above.

Henry Freedman

(Sworn to February 1, 1968.)

54a

Notice of Defendants’ Motion to Dismiss Complaint

UNITED STATES DISTRICT COURT

SouTHERN District or New YorK

[Same TrtLe}

Sir:

Piease Take Notice that upon the complaint dated the

29th day of January, 1968, the annexed affidavit of Jort H.

Sacus, and accompanying exhibits, dated the 21st day of

February, 1968 and defendants’ memorandum of law dated

February 21, 1968, the undersigned will move this Court at

a Motion Term thereof at Room 506, United States Court-

house, Foley Square, City of New York, on the 5th day of

March, 1968 at 10:00 o’clock in the forenoon or as soon

thereafter as counsel can be heard for an order pursuant to

Rule 12(b) of the Federal Rules of Civil Procedure to dis-

miss plaintiffs’ complaint for failure to state a claim upon

which relief may be granted and for such other and further

relief as to the Court may seem just and proper.

Dated: New York, New York

February 21, 1968

Yours, ete.

Louis J. LerKow1Tz

Attorney General of the

State of New York

Attorney for Defendants

Wyman and the New York

State Board of Social

Welfare

To:

Martin Garsus, Esa.

55a

Affidavit of Joel H. Sachs in Support of

Foregoing Motion

UNITED STATES DISTRICT COURT

SoutHern District or New York

{Same Tite]

State of New York )

County of New York ) ss.:

Jort H. Sacus, being duly sworn, deposes and says:

I am an Assistant Attorney General in the office of

Louis J. Lefkowitz, Attorney General of the State of New

York, attorney for defendants Wyman, Commissioner of

the New York State Department of Social Services, Jones,

Chairman of the State Board of Social Welfare, Adams,

Height, Kimmerer, Galbraith, Johannes, Hopkins, MceCon-

ville, Hale, Hostein, Klingenstein, Berlinger, Jackson,

Lopez and Bernstein, as members of the Board of Social

Welfare. I am fully familiar with the facts and circum-

stances surrounding this case. I make this affidavit in op-

position to plaintiffs’ motion for a preliminary injunction,

the convening of a three-judge statutory court and a deter-

mination that the action may proceed as a class action and

in support of defendants’ motion to dismiss plaintiffs’

complaint for failure to state a claim upon which relief may

be granted.

This action, commenced by attorneys for the American

Civil Liberties Union, Mobilization For Youth and the

New York Legal Aid Society is a ‘‘test case’’ challenging

the constitutionality of several provisions of the New York

Social Welfare Law and the official compilation of Codes,

Rules and Regulations of the State of New York. It is one

56a

Affidavit of Joel H. Sachs

of a series of actions which have been commenced by these

and related organizations throughout the United States at-

tacking state welfare law provisions as to the procedures to

be followed when a welfare recipient’s assistance is sus-

pended or discontinued.

At the time plaintiffs’ action was commenced, defendant

concedes that no provision of the New York State Welfare

Law gave welfare recipients notification of their suspension

or termination prior to such suspension or termination, nor

was a hearing authorized to be conducted prior to the date

of discontinuance. (However, at that time the law did and

still does give any welfare recipient who has been sus-

pended or discontinued or terminated the right to ask for

a fair hearing to review his suspension or termination.)

After the instant action was commenced, the New York

Department of Social Services, after examining plaintiffs’

papers and after conferring with the Welfare Departments

in the States of California and Mississippi (where similar

actions have recently been commenced in the federal

courts), the New York State Department of Social Services

had determined to amend its regulations concerning the

procedure to be followed when a welfare recipient’s assist-

ance is discontinued or suspended (as the Welfare Depart-

ments in California and Mississippi had done previously),

thus giving plaintiffs precisely the relief they requested.

Copies of the new Regulations and Rules of the New

York State Department of Social Services are annexed.

(See annexed exhibits.) The newly added Section 351.26 of

the Official Regulations of the New York State Department

of Social Services (Exhibit ‘‘A’’) now provides that before

a recipient’s welfare payment is discontinued or suspended

the recipient is notified in advance of the proposed discon-

tinuance or suspension along with the reasons therefor.

The notice advises the recipient that if he so desires he

shall be afforded an opportunity to appear for a review of

57a

Affidavit of Joel H. Sachs

this determination, with the assistance of an attorney or

other representative, at which time he will be afforded an

opportunity to present such written or oral evidence and

the reasons that the recipient may have to demonstrate why

this grant should not be discontinued or suspended. Hence,

plaintiffs’ claim that welfare payments may be suspended

or discontinued without prior notification or hearing no

longer has any merit.

In addition, new Rules of the New York State Board of

Social Welfare have recently been adopted (see Exhibit

‘**B”’) which extend the fair hearing provisions to all wel-

fare recipients and streamline the fair hearing require-

ments. All welfare recipients are now notified of the right

to a fair hearing. The hearing is held within ten working

days from the date the request is received by the Depart-

ment in cases involving discontinuance or suspension of as-

sistance. The recipient is notified of his rights to be repre-

sented, to testify, to present documentary evidence and to

examine opposing witnesses and evidence. After hearing

it is required that a decision be issued as promptly as

feasible but not later than 12 working days from the close

of the hearing.

Taken together the new Regulations and Rules conclu-

sively show that plaintiffs’ claim as to the unconstitutional-

ity of the procedures which the New York State Depart-

ment of Welfare follows when a recipient’s aid is sus-

pended or terminated, is utterly without merit. As the new

Regulations now provide, recipients are now notified before

their assistance is discontinued and have a right to a hear-

ing before the termination date. In addition, the new Rules

which provide for a fair hearing after the discontinuance

of assistance, provides a second means by which welfare

recipients may challenge the determination. As will be

more fully set forth in defendants’ accompanying memoran-

dum of law, a three-judge statutory court may not be con-

58a

Affidavit of Joel H. Sachs

vened unless a substantial constitutional question is pre-

sented. In view of the fact that the Rules and Regulations

of the New York State Department of Social Services have

been drastically revised in order to give plaintiffs the

precise relief which they now request, no substantial con-

stitutional question is presented and plaintiffs’ motion for

the convening of a three-judge statutory court should be

denied.

Similarly, plaintiffs’ request for a preliminary injunc-

tion enjoining the defendants from refusing to pay the

named plaintiffs their regular publie assistance grants

should be denied. I have been informed by Merrill Charl-

ton, Esq., Assistant Attorney in the New York City De-

partment of Social Services that plaintiffs Kelly, DeJesus,

McKinney and Frye have been restored to the City of New

York Welfare rolls and that plaintiff Guzman had never

been removed. Hence, as to these plaintiffs, any request

for a preliminary injunction is moot.

Furthermore, plaintiffs’ request extending the prelim-

inary injunction to all welfare recipients in the State need

not be granted, because as will be more fully set forth in

the accompanying memorandum of law, before an injunc-

tion may be granted in connection with a motion for a

three-judge statutory court, plaintiffs must show irrepara-

ble and immediate harm. As previously found by Judge

Thomas F. Murphy of this Court (when presented with an

order to show cause in this action on January 27, 1968),

plaintiffs have failed to show irreparable and immediate

harm. Furthermore, to grant the preliminary injunction

would be to give plaintiffs the ultimate relief they request

without a court ever having passed on the constitutional

issues involved.

Finally, for reasons to be more fully set forth in de-

fendants’ accompanying memorandum of law, defendant

59a

Affidavit of Joel H. Sachs

opposes plaintiffs’ motion, that the case proceed as a class

action.

Wuererore, the defendants respectfully request that

plaintiffs’ motions for a preliminary injunction, the con-

vening of a three-judge statutory court and a determination

that the action may proceed as a class action be denied and

it is further requested that defendants’ motion to dismiss

the complaint be granted.

Joel H. Sachs

(Sworn to February 21, 1968.)

60a

Exhibit A Annexed to Foregoing Affidavit

Newly Added Section 351.26 of Official Regulations of the

New York State Department of Social Services

STATE DEPARTMENT OF SERVICES

Ausany, New York

Pursuant to the provisions of sections 20 and 24 of the

Social Services Law, I, George K. Wyman, Commissioner

of Social Services, do hereby amend in part, as hereinafter

indicated, section 351.25 and Part 351 of the Official Regula-

tions of the State Department of Social Services, being

Chapter II of Title 18 NYCRR, effective as of March 1,

1908.

Section 351.25 is hereby amended to read as follows:

351.25. Notification of change in grant. The re-

cipient shall be notified of any change in grant.

Reasons for the change and necessary information

on the assistance plan shall be included in the notifi-

eation.

Part 351 is hereby amended by adding thereto a new

section, to be section 351.26, to read as follows:

351.26. Proposed discontinuance or suspension

of grant; prior notice to recipient; additional local

review and subsequent determination. When a so-

cial services official proposes to discontinue or sus-

pend a grant of public assistance, he shall notify the

recipient in writing of his intention to do so at least

seven days prior to the proposed effective date of

the discontinuance or suspension, together with the

reasons for his intended action. Such notification

shall further advise the recipient that if he makes a

request therefor he will be afforded an opportunity to

6la

Exhibit A Annexed to Foregoing Affidavit

appear at the time and place indicated in the notice

before the person identified therein who will review

his case with him and will afford him opportunity to

present such written and oral relevant evidence and

reasons as the recipient may have to demonstrate

why his grant should not be discontinued or sus-

pended, and that the recipient may appear and pre-

sent such evidence and reasons on his behalf with

or without the assistance of an attorney or other

representative. Only the social services official or

an employee of his social services department who

occupies a position superior to that of the super-

visor who approved the proposed discontinuance or

suspension shall be designated to make such a re-

view. When a recipient requests such a review the

designated person shall, at the time and place indi-

cated in the notice to the recipient, review with the

recipient and his representative, if any, the evidence

and reasons supporting the proposed action and

shall thereupon afford the recipient opportunity to

present relevant evidence and to state reasons why

the proposed discontinuance or suspension should

not be made. When such a review has been made

by a designated employee, such employee shal!

promptly make an appropriate written recommen-

dation to the social services official, together with

his reasons therefor, including reference to applica-

ble provisions of law, Board rules, Department reg-

ulations, and approved local policy. After such a

review the social services official shall expeditiously

determine whether the proposed discontinuance or

suspension shall or shall not be made effective as

proposed, after considering all the evidence before

him and the recommendation, if any, of the em-

ployee designated by him to review the proposed

62a

Exhibit A Annexed to Foregoing Affidavit

action with the recipient. The social services official

shall then promptly send an appropriate written

notice of his decision to the recipient and his rep-

resentative, if any, and to the Department’s area

office.

Date: February 15, 1968

Signed George K. Wyman

Commissioner

This is to certify that this is the original of an

order of the State Department of Social Services

made on February 15, 1968 amending in part sec-

tion 351.25 and Part 351 of the Official Regula-

tions of the State Department of Social Services,

being Chapter II of Title 18 NYCRR.

Date: February 15, 1968

George K. Wyman

Commissioner

63a

Order to Show Cause

IN THE

UNITED STATES DISTRICT COURT

For tHe SoutHern District or New York

Civil Action No. 864/68

]

——s

——_

Rusy Sugars, et al.,

Plawntif’s,

Georce K. Wyman, et al.,

Defendants.

]

—

—_

Let defendants show cause, in Room 506 of the United

States Courthouse, Foley Square, New York, New York,

on the 5th day of March, 1968, at 10:00 a.m., or as soon

thereafter as counsel may be heard, why an order should

not issue or the court take such other action as shall grant

the plaintiffs herein the following relief:

1. A preliminary injunction enjoining the defendants,

their agents, employees and attorneys and all per-

sons in active concert and participation with them

from:

(1) refusing to pay the named plaintiffs herein

regular public assistance grants, to wit, semi-

monthly payments in the amounts indicated:

Ruby Sheafe, $52, and Esther Lett, $72; and

(2) suspending or terminating aid to any recipient

of public assistance without giving advance

written notice stating the reason for such

64a

Order to Show Cause

action and without affording such recipient an

opportunity for a due process hearing prior

to withdrawal of aid.

9. The convening of a statutory court of three judges

for the purpose of hearing and determining this ap-

plication for a preliminary injunction and _ this

cause, in accordance with the provisions of Title 28

United States Code Sections 2281 and 2284.

3. An order determining that this action may prop-

erly proceed as a class action pursuant to Rules

23(a) and 23(b)(2) of the Federal Rules of Civil

Procedure.

Let the defendants further show cause why a temporary

restraining order pursuant to Title 28 United States Code

Section 2284 should not issue restraining the defendants,

their agents, employees and attorneys and all persons in

active concert and participation with them from

(1) refusing to pay the named plaintiffs herein

their regular public assistance grants, to wit,

semi-monthly payments in the amounts indi-

cated: Ruby Sheafe, $52, and Esther Lett, $72;

and

(2) terminating aid to any recipient of public as-

sistance without giving advance written notice

stating the reason for such action and without

affording such recipient an opportunity for a

hearing prior to withdrawal of aid,

pending the hearing and determination of plaintiffs’ motion

for a preliminary injunction by a three-judge court con-

vened pursuant to Title 28 United States Code Sections

2281 and 2284.

Plaintiffs seek this temporary restraining order, prelim-

inary injunction, and other relief on the grounds that:

65a

Order to Show Cause

1. They are each suffering, or threatened with im-

minent suffering of, irreparable injury in that they

are without means to provide for themselves the

basic necessities of food, clothing and shelter and

will continue to suffer even greater deprivation

until they are restored to full public assistance,

2. The issuance of a temporary restraining order and

preliminary injunction will not cause undue incon-

venience or loss to the defendants but will prevent

irreparable injury to the plaintiffs,

3. The statutes and regulations which deny plaintiffs a

hearing prior to termination or suspension of public

assistance violate plaintiffs’ right under the Four-

teenth Amendment to the Constitution of the United

States, and

4, Plaintiffs have no adequate remedy at law, as set

forth more fully in the verified complaint and the

affidavits of Richard Kwasnik (two affidavits),

Esther Lett, David Gilman, attached hereto, as well

as the affidavit of Edward V. Sparer submitted in

Kelly, et al., v. Wyman, et al., Civil Action No.

394/68, a copy of which is attached hereto.

Ir Is Furtuer Orverep that service of this Order on

defendants on or before 5 P.M. on the 29th day of Febru-

ary, 1968, be deemed sufficient.

Ir Is Furruer Orperep that service of this order may be

made by any of the attorneys for plaintiffs in this action.

Done and ordered at the United

States Courthouse, Foley Square,

New York, New York, this 29th

day of February, 196, at 4:00 o’clock.

John M. Cannella

United States District Judge

66a

Complaint for Three-Judge Court, Declaratory

Judgment, Injunctive Relief

IN THE

UNITED STATES DISTRICT COURT

For tHe Souruern District or New York

[Same TitLe]

This is an action for injunctive and declaratory relief

and damages authorized by Title 42 U.S.C. 1983 to secure

rights, privileges and immunities established by the Four-

teenth Amendment to the Constitution of the United States

and the Social Security Act, Title 42 U.S.C. 301 et seq., and

the regulations promulgated thereunder. Jurisdiction is

conferred on this Court by Title 28 U.S.C. 1343(3) and (4)

providing for original jurisdiction of this Court in suits

authorized by Title 42 U.S.C. 1983; and jurisdiction is

further conferred on this Court by 28 U.S. C. 2201 and 2202

relating to declaratory judgments.

This is a proper case for determination by a three-

judge court pursuant to Title 28 U.S.C. 2281 and 2284, in

that it seeks an injunction to restrain the defendants from

applying, enforcing, executing, and implementing Sections

213(2), 214, 304, 325, 350(2)(b), and 353(2) of the New

York Social Services Law, Section 351.22 and 356.4 of

Volume 18, Official Compilation of Code, Rules and Reg-

67a

Complait

ulations of the State of New York (hereafter referred to

as 18 N.Y.C.R.R.), Sections 84.2-84.24 of 18 N.Y.C.R.R.

promulgated by the New York State Board of Social Wel-

fare to supersede Section 351.22 and 356.4 on March 1, 1968,

Sections 351.26 of 18 N.Y.C.R.R. promulgated by Defend-

ant Wyman effective March 1, 1968, and related statutes,

rules and regulations, insofar as these statutes and regula-

tions require termination or suspension of financial aid in

the form of public assistance [Aid to Families with De-

pendent Children (AFDC), Aid to the Aged, Blind and

Disabled (AABD) and Home Relief (HR)] prior to the

granting of adequate notice and opportunity for a hearing

which meets due process standards, on the grounds of the

invalidity of said statutes and regulations under the Con-

stitution and laws of the United States.

Iil

This action seeks an injunction and declaratory judg-

ment restraining the enforcement of, and declaring uncon-

stitutional, the aforesaid state statutes and state-wide rules

and regulations, on their face and as applied and inter-

preted by defendants, on the grounds that said statutes,

rules and regulations, and actions taken pursuant thereto,

deprive plaintiffs of the due process of law guaranteed by

the Fourteenth Amendment to the United States Constitu-

tion and, so far as the AFDC and AABD programs are

concerned, deprive plaintiffs of the ‘‘fair hearing’’ guar-

anteed by the Social Security Act, in that said statutes,

rules and regulations deny to plaintiffs an opportunity for

a hearing which satisfies due process standards prior to

termination or suspension of financial aid under the public

assistance program.

68a

Complaint

Plaintiffs Esther Lett and Ruby Sheafe are adult cit-

izens of the United States and residents of the City and

State of New York who received public assistance until aid

was terminated without a hearing.

Plaintiffs bring this action pursuant to Rule 23 of the

Federal Rules of Civil Procedure on behalf of themselves

and all other recipients of public assistance who are sim-

ilarly situated. All public assistance recipients are sim-

ilarly affected by the statutes, rules and regulations chal-

lenged herein in that all are by statute, rule and regulation

made subject to peremptory ex parte termination of their

aid. The persons in the class are so numerous as to make

joinder impractical ; there are common questions of law and

fact; plaintiffs’ claims are typical of the claims of the

class; and the representative plaintiffs will fairly and ade-

quately protect the interests of the class. The parties

opposing the class have acted or refused to act on grounds

generally applicable to the class.

Defendant George K. Wyman is the Commissioner of

the Department of Social Services of the State of New York

and is charged with statewide administration of the public

assistance program and with establishing regulations to

carry out the statutory provisions of said program.

Defendant Jack R. Goldberg is Commissioner of the

Department of Social Services of the City of New York and

is responsible for administering the public assistance pro

gram in the City of New York.

69a

Complaint

Defendant members of the State Board of Social Wel-

fare are responsible for the promulgation of rules govern-

ing the policies and conduct of the Department of Social

Services of the State of New York.

vil

The aforesaid public assistance programs created by the

New York Social Services law provide financial aid to cer-

tain needy persons. Persons who meet the statutory cri-

teria receive financial aid as a matter of statutory entitle-

ment.

Vill

At all times relevant hereto the State of New York and

defendants, in order to receive federal funds for the Aid

to Families with Dependent Children and Aid to Aged,

Blind, and Disabled programs, have been required by the

Social Security Act, Title 42 U.S.C. Sec. 301 et seq., to

have formulated a ‘‘state plan’’ for said programs in con-

formity with the provisions of the Act and the United

States Constitution. The Social Security Act, as inter-

preted by regulations of the United States Department of

Health, Education and Welfare, requires that a ‘‘state

plan’’ provide for granting an opportunity for a fair hear-

ing before the state agency to any individual aggrieved by

an action of a local Department of Social Services.

1. Plaintiff Ruby Sheafe is thirty-five years old and was

a recipient of Home Relief assistance in the amount of ap-

proximately $52.00 semi-monthly from September, 1966 to

January 8th, 1968.

2. Plaintiff received a semi-monthly grant computed

on a supplemental basis since she worked part time.

70a

Complaint

3. On January 8, 1968 Plaintiff visited her case worker

at the Gramercy Welfare Center to discuss with her worker

the computation of her semi-monthly grant. The worker

told the Plaintiff that Plaintiff must give the worker the

name and address of a former employer of Plaintiff, for she

wished to contact him. Plaintiff told the worker that she

had already been investigated and found to be eligible for

Public Assistance. Plaintiff inquired as to the reason for

the reinvestigation of her eligibility. The worker refused

to give Plaintiff a reason and insisted that the plaintiff dis-

close the name and address and telephone number of her

former employer. Plaintiff refused to divulge the informa-

tion without first being informed why this information was

being requested. Plaintiff informed the worker that she

would be more than willing to allow the Department to con-

tact her present employer, for whom she has been working

since being accepted for public assistance. The worker then

informed Plaintiff that her case was closed and walked

away.

4. Plaintiff did not receive her assistance check due

January 16, 1968.

5. Plaintiff received a ‘‘Notice of Discontinuance”

dated January 17, 1968 (see attached Exhibit A) informing

Plaintiff that her case was closed for ‘‘refusal to permit

visits (collateral).’’

6. On January 26, 1968 Plaintiff requested a fair hear-

ing to review the reasons for her aid being discontinued.

No hearing has yet been scheduled.

7. Plaintiff attempted to visit her case worker on Feb-

ruary 5, and 13, and remained in the center all day without

being interviewed.

71a

Complaint

1. Plaintiff Esther Lett is 45 years old and was a re-

cipient of public assistance in the A.D.C. category on be-

half of herself and four minor nieces and nephews.* Until

February 1, 1968, she regularly received $72.00 semi-month-

ly from the New York City Department of Social Services.

2. Mrs. Lett last received her regular public assistance

check on February 1, 1968. On February 11, 1968 she

received a notice from the Department of Social Services

stating that aid was being discontinued for ‘‘Failure to

disclose assets.’’ Attached was a letter stating that the

Department has been advised by the New York City Board

of Education that Mrs. Lett had been employed by the

Board of Education since July 1967 as a teacher’s aide at

a salary of $1.75 per hour, averaging 30 hours per week.

It also contained names of private day care centers and

dates on which Mrs. Lett allegedly worked during the

months of September, October and November.

3. Mrs. Lett was employed by the New York City De-

partment of Education during July and August of 1967.

The Department of Social Services was fully aware of that

and it was discussed during a fair hearing on July 20, 1967.

During this period Mrs. Lett did not receive any public

assistance.

4. Mrs. Lett had also informed her investigator that

she was seeking day to day employment from the Profes-

sional Placement Center of the New York State Depart-

ment of Labor; and the Department of Social Services was

aware of her employment during September, October and

November of 1967. The Department was informed of the

* Virginia Hubbard, age 15; Ann Byrd, age 12; Cladcile Byrd,

age 7; and Aaron LaMent Hubbard, 3 months.

——

72a

Complaint

employment both by Mrs. Lett and by a Mrs. Levine of the

Professional Placement Center who had written to the De-

partment of Social Services in support of Mrs. Lett’s

request for a telephone so that she could be reached each

day for employment.

5. Mrs. Lett and her four children have not been able

to maintain a minimum diet since their aid was discon-

tinued. They have been forced to depend on the charity of

their neighbors. Mrs. Lett has no financial resources with

which to feed herself and her dependents.

6. On February 18, 1968, they were forced to go to

Harlem Hospital for treatment of a severe case of diarrhea.

The only meal they had eaten that day was chicken and rice

donated by neighbors.

7. On the night of Thursday, February 22, 1968 Mrs.

Lett went to the Emergency Welfare Center located at 11

West 13th Street, New York, New York. When she ex-

plained to Defendant’s employees at the Center that she

was starving and needed money for food for herself and

the four children, she was turned away on the grounds that

she had concealed assets and therefore was ineligible for

emergency assistance.

Sections 213(2), 304, 325 and 353(2) of the New York

Social Services Law, and 18 N.Y.C.R.R. Section 356.4 as

in effect and as amended by 18 N.Y.C.R.R. Section 82.2-

82.23, effective March 1, 1968, prescribing the hearing pro-

cedure in the public assistance program, and Sections 214,

304(6), 325 and 350(2) (b) and 18 N.Y.C.R.R. 351.22 and

351.26 (effective March 1, 1968) prescribing the manner of

termination or suspension of aid in the public assistance

730

Complaint

program, on their face, and as interpreted and applied to

plaintiffs and members of their class, deprive the plaintiffs

of the right of due process of law guaranteed by the Four-

teenth Amendment to the United States Constitution and,

to the extent applicable, of the ** Pair Hearing’’ guaranteed

by the Social Security Act in that said statutes and the

regulations adopted in enforcement thereof authorize and

require effective action terminating and suspending finan-

cial aid prior to the granting of reasonable notice and op-

portunity for a hearing which meets due process standards.

The termination and withdrawal of financial aid may, under

the presently enforced regulations, extend for a period of

several months before a hearing is held and a decision is

rendered, even though plaintiffs are prepared to prove that

they are and have been eligible. Such deprivation is con-

trary to the purpose of the Social Security Act.

XII

Plaintiffs have no adequate remedy at law and defend-

ants will continue to cause and threaten to cause irrepara-

ble injury to plaintiffs unless enjoined by this Court.

XIII

Plaintiffs have no adequate resourees with which to

support themselves and their families in the absence of

their public assistance grants.

Wuererore, plaintiffs respectfully pray on behalf of

themselves and all others similarly situated, that this court :

1. Assume jurisdiction of this cause and convene a

three-judge Court pursuant to Title 28 U.S.C. §2281.

74a

Complaint

2. Enter a temporary restraining order and a prelim-

inary injunction ordering the defendants to refrain from

a. refusing to pay the named plaintiffs herein their

regular public assistance grants and

b. terminating aid to any recipient of public assistance

without giving advance written notice stating the reasons

for such action and without affording such recipient an op-

portunity for a hearing which meets the requirements of

due process of law prior to withdrawal of aid.

3. Enter a declaratory judgment pursuant to Title 28

U.S.C. Sections 2201 and 2202 and Rule 57 of the Federal

Rules of Civil Procedure declaring that Sections 213(2),

214, 304, 325, 350(2) (b) and 353(2) of the New York Social

Service Law and related provisions, and the regulations

and rules issued pursuant thereto, violate the Fourteenth

Amendment to the United States Constitution and the So-

cial Security Act on their face and as applied, insofar as

they authorize and require termination or suspension of

public assistance prior to granting reasonable notice and

opportunity for a hearing meeting due process standards.

4. Enter a preliminary and permanent injunction re-

straining the defendants, their successors in office, agents

and employees from terminating or suspending the aid of

any public assistance recipient prior to the granting of

reasonable and adequate notice and opportunity for a hear-

ing which satisfies the standards of due process of law.

5. Allow plaintiffs their costs herein, grant them and

all others similarly situated such additional or alternative

relief including payment of all monies wrongfully withheld,

as the Court may deem to be just and appropriate.

75a

Complaint

6. Award plaintiff Esther Lett and each of her four

minor dependents, Virginia Hubbard, Ann Byrd, Cladcile

Byrd, and Aaron LaMent Hubbard, damages in the amount

of Ten Thousand Dollars ($10,000).

Respectfully submitted,

Haroip J. Roruwax, Esq.

Attorney for Plaintiffs

Ruby Sheafe

Davy Guman, Esq.

Of Counsel

Suytevr Barrack, Esq.

Attorney for Plaintiff

Esther Lett

Ricuarp Kwasnicx, Esq.

Of Counsel

Martin Ganrsus, Esq.

Attorney for Plaintiffs

Roger Baldwin Founda-

tion of the American

Civil Liberties Union

Cart Racuuin, Esq.

Attorney for Plaintiffs

Scholarship, Education

and Defense Fund for

Racial Equality

Sreve Naaues,. Esq.

Of Counsel

Brian Guick, Esq.

Henry A. Freepman, Esq.

76a

Exhibit A Annexed to Foregoing Complaint

Notice of Discontinuance of Grant Dated February 5, 1968

(See Opposite a”)

V]ae

THE CITY OF NEW YORY

DEPART iNTOFWELF

pwr tivetwe

a cose qumere ~] aches — sare

1 5339€5) SFEAFE ruBy FASE CLOSED

psé w 34 ST QW Cic00lT 92/17/68 002731

NOTICE OF DISCONTINUANCE OF GRANT

~~ Tals is to notify you that: ,

During your period of hospitalization you will

Ss mot receive your regular grant.

Your regular grant is being suspended, ef

[] fective iminedistely. for the following reasons:

Our investigation shows that, effective im-

mediately, you are not eligible to receive public

assistance for the following reasons:

REFUSED TC PERMIT VISITS CCoumernc)

You may wish to review the pamphiet which was given to you at

the time of your application. it explains the provisions under

which this type of public assistance is granted and your rights

with respect to review of this decision.

SYA biT A _

78a

Affidavit of Richard Kwasnik in Support of

Foregoing Complaint

IN THE

UNITED STATES DISTRICT COURT

For tHe SouTHERN District or New York

[Same Tite]

State of New York )

County of New York ) ss.:

Ricuarp Kwasntk, being duly sworn, deposes and says:

1. I am an attorney admitted to practice in the State

of New York. I am employed by the Legal Aid Society,

290 Lenox Avenue, New York, New York, and in that ca-

pacity represent Mrs. Esther Lett, plaintiff in the above

entitled action.

2. This is a class action seeking injunctive and declar-

atory relief against termination of public assistance with-

out a due process hearing prior to termination of benefits.

It is therefore similar to Kelly, et al., v. Wyman, et al.,

Civil Action No. 394/68, now before this Court.

3. Plaintiffs’ request herein for immediate and, if nee-

essary, ex parte relief is made because of defendant’s con-

tinuous refusal to rectify their obvious error, as set forth

below and in my prior affidavit attached hereto. Plaintiff

Esther Lett and her four minor dependents, age 3 months

to fifteen years, though fully eligible for public assistance,

have been dropped from the rolls and left to depend solely

on the charity of their neighbors, themselves welfare re-

cipients. Substantial irreparable injury has already been

caused, and the Department remains callous in the face of

completely justified pleas.

79a

Affidavit of Richard Kwasnik

4. Mrs. Lett was terminated allegedly because the

Board of Education of the City of New York certified that

she was currently employed by them. I went personally

to the offices of the Board and was advised, as set forth in

my affidavit, that a terrible mistake had been made and

that Mrs. Lett had not been employed by the Board since

last August. The Board would not write a letter to the

Department of Social Services correcting their previous

letter even though I advised them of the great hardship

that had been caused by their gross negligence.

5. As set forth in my aforementioned affidavit, co-

counsel for Mrs. Lett requested an emergency fair hearing

by defendant Wyman on February 19, 1968. There has

been no response to this request. Mrs. Lett was denied any

assistance whatever at the Emergency Center operated by

defendants the evening of February 22, 1968.

6. Mrs. Lett waited at the Melrose Welfare Center op-

erated by defendants from early in the morning of Febru-

ary 27, 1968 until 5 P.M. During the afternoon she fainted

since she had had no food whatever all day. She was re-

vived but was told that she could not be given any assist-

ance since it had not been authorized yet! At five o’clock

she was given $15 and told to return Friday, three days

later.

7. The Corporation Counsel and Attorney General’s

office were notified on February 26 of the continuing injury

being done to Mrs. Lett and that papers were being drawn

to commence a federal action.

8. I spoke with Mr. Luis Neco of the Corporation Coun-

sel’s office, an attorney who is familiar with the facts and

issues in Kelly v. Wyman, this morning, February 29, 1968,

and he suggested that I talk to Mr. Charlton of the office

80a

Affidavit of Richard Kwasntk

of Counsel to the New York City Department of Social

Services. After advising him of all of the facts of the

case, he said he would take the case under advisement and

check the facts. He could not assure me of any immediate

or long-range relief.

9. Co-counsel and I had advised all of the aforemen-

tioned lawyers that we wished to settle the case and not

litigate.

10. Defendant Wyman has ordered defendant Gold-

berg to institute, effective tomorrow, March 1, new pro-

cedures providing for an interview prior to termination.

Despite this official recognition of the need for such pro-

cedure, no relief has been granted to Mrs. Lett, an obvious

and tragic victim of the present system.

11. The obvious insensitivity of the officials I have

dealt with and their unwillingness to make any meaningful

efforts to alleviate grievous human suffering is literally

beyond belief. The physical and emotional injury being

wreaked on Mrs. Lett and her four dependents can never

be fully ameliorated. During 1967 Mrs. Lett’s assistance

was wrongfully terminated and she had to wait for a fair

hearing decision for reimbursement. Only this Court can

end this senseless harm.

12. Plaintiffs herein, in lieu of Points and Authorities,

are attaching hereto and incorporating by reference the

Memorandum of Points and Authorities in Support of

Plaintiffs’ Motion for Preliminary Injunction, Convening

of Three-Judge Court, and Class Action Order submitted

in Kelly et al., v. Wyman et al., Civil Action No. 394/68.

13. The temporary relief sought in this order to show

cause is similar to that obtained in Wheeler et al. v. Mont-

8la

Affidavit of Richard Kwasnik

gomery et al., Civil Action No. 48303 (N.D. Calif., Decem-

ber 6, 1967.) A copy of that temporary restraining order

is attached to the Points and Authorities submitted here-

with as Exhibit B. District Judge Zipoli found that ter-

mination of aid had ‘‘caused and is causing [plaintiff] im-

mediate and irreparable injury in that she will not have

sufficient funds with which to subsist on a day-to-day basis

without her full [public assistance] payment.’’ He further

found that the termination of aid ‘‘without a prior hearing

and reasonable notice raises a debatable question as to

whether the due process clause of the Fourteenth Amend-

ment has been violated.’’

14. At or about 2:00 P.M. today David Gilman, in my

presence, telephoned Mr. Joel Sachs of the New York State

Attorney General’s office and Mr. Luis Neco of the City of

New York Corporation Counsel’s office and notified them

that we would submit this order to show cause at 3:45

P.M. today in Judge John Cannella’s chambers.

15. No previous request has been made for this relief.

Richard Kwasnik

(Sworn to February 29, 1968.)

82a

Affidavit of Richard Kwasnik in Support of

Foregoing Complaint

IN THE

UNITED STATES DISTRICT COURT

For THE SoutHern District or New York

[Same TrtLE]

State of New York )

County of New York ) ss.:

Ricuarp Kwasnik, bein duly sworn, deposes and says:

1. I reside at 529 West 111 Street, New York, New

York.

2. I am an attorney duly admitted to practice in the

State of New York and I am employed as an attorney by

the Legal Aid Society, 290 Lenox Avenue, New York, New

York.

3 I make this affidavit in support of plaintiffs’ motions

for a temporary restraining order and a preliminary in-

junction.

4. I was consulted by Mrs. Esther Lett on February

23, 1968, regarding the Department of Social Services’ dis-

continuance of public assistance aid to herself and four

dependent children.

5. She produced the Notice of Discontinuance of Public

Assistance and an attached letter, which, in essence, stated

that Mrs. Lett had concealed assets while in receipt of

public assistance. The Department, in their attached let-

ter, claimed Mrs. Lett was an employee of the Board of

83a

Affidavit of Richard Kwasnik

Education and also listed certain private day care centers

in which Mrs. Lett was employed during September, Oc-

tober and November, 1967.

6. Mrs. Lett stated that she worked for Operation Head

Start during July and August, 1967, but was not employed

by the Board of Education since that time. She stated

that the employment during September, October and No-

vember was with the full knowledge of the Department of

Social Services. From the facts presented to me it ap-

peared that the termination of assistance was wholly in

error.

7. I phoned Miss Solomon, the caseworker who had

been assigned to Mrs. Lett’s case, at the Herald Welfare

Center, 120 West 32 Street, New York, New York. She

said Mrs. Lett’s aid was discontinued because of her fail-

ure to disclose employment.

8. I spoke with the Unit Supervisor, Mrs. Pearlman,

who repeated what Miss Solomon had stated.

9. I informed Mrs. Pearlman that Mrs. Lett and the

four children were on the edge of starvation and needed

emergency aid immediately. I was told that she could try

to apply at her local center.

10. Mrs. Lett told me that she had applied at the Emer-

gency Center at 11 West 13 Street on the night of February

22, 1968, but was denied aid because she was catalogued in

their records as ineligible.

11. While in my office Mrs. Lett appeared to be suffer-

ing from hunger. She sat doubled up and clutching her

stomach. She related that the only food she and her fam-

ily had was hand-outs from her impoverished neighbors.

84a

Affidavit of Richard Kwasnik

12. She detailed how she and her family went to Har-

lem Hospital on Sunday, February 18, 1968, to be treated

for severe diarrhea. That day they had only one meal of

chicken and rice, donated by a neighbor. The food had

apparently been below minimum standards of health and

caused the family to become violently ill.

13. I gave Mrs. Lett three dollars so that she might

immediately go to get a meal. When she returned, she was

given an additional fifteen dollars from the Legal Aid So-

ciety in order to provide food for the weekend.

14. On Monday, February 26, 1968, I called Mrs. Lett’s

former caseworker, Miss Solomon. I asked to inspect the

Board of Education verification of Mrs. Lett’s alleged em-

ployment. Initially my request was denied, but later Miss

Solomon said it was available upon the presentation of a

written, notorized authorization from my client.

15. I was shown the document on Tuesday, February

97. I then went directly to the issuing authorities at the

Board of Education, Bureau of School Lunches, 65 Court

Street, Brooklyn, New York. There I spoke with Mrs.

Stolzer under whose name the employment verification in

question had been issued.

16. Mrs. Stolzer, after rechecking the bureau records,

admitted that a mistake had been made. I was told that

Mrs. Lett last received a check from the Board of Eduea-

tion on September 15, 1967, for work performed during

August of 1967. Mrs. Lett has not been employed by the

Board of Education since mid-August.

17. Mrs. Stolzer stated that the error would be cor-

rected if the Department of Social Services requested a

85a

Affidavit of Richard Kwasnik

new verification. I was denied a written statement as to

Mrs. Lett’s correct employment record.

18. On this same day, I called Mrs. Pearlman, super-

visor of Mrs. Lett’s former caseworker, and advised what

I had learned at the Board of Education. Mrs. Pearlman

stated that Mrs. Lett’s records had been sent to the Mel-

rose Certer in the Bronx. Mrs. Pearlman said she was no

longer interested in the case and hung up the phone.

19. Mrs. Lett and I had gone to the Melrose Center of

the Department of Social Services located at 847 Morris

Avenue, Bronx, New York, Tuesday, February 27, 1968, to

seek emergency aid. I stayed with Mrs. Lett while she

was interviewed at the center’s Intake Unit. I left Mrs.

Lett at the center at 11:00 A.M. when I was assured by

Mr. Craine, Intake Unit Supervisor, that she would re-

ceive emergency assistance.

20. At approximately 4:00 P.M. Mrs. Lett phoned my

office. She stated that she hadn’t, as of that time, received

any aid. She said that earlier in the afternoon she had

fainted in the center. She attributed her weakened condi-

tion to hunger, she had not eaten all day. She stated that

she asked for money to immediately get some food. She

said it was refused because emergency aid had not yet

been authorized.

21. After waiting until 5:00 P.M., Mrs. Lett was given

$15.00 to feed herself and four dependents. It was an

emergency basis single issue grant. She was told to return

on Friday, March 1, 1968. There was no assurance that

she would receive further aid on Friday.

22. It should be noted that a Fair Hearing was held

on August 1, 1967 where Mrs. Lett contested, among other

Te mE

86a

Affidavit of Richard Kwasntk

things, the Department of Social Services suspension of

aid for the period March 1 to March 23, 1967. The deci-

sion in this matter (copy annexed Exhibit 1) dated Noy,

2, 1967, held that Mrs. Lett had been wrongfully suspended.

The Department was ordered to reimburse Mrs. Lett for

expenses incurred during this period of wrongful suspen-

sion.

23. A request for a Fair Hearing and emergency aid

for Mrs. Lett and her dependents was made on Feb. 19,

1968 (copy hereto annexed as Exhibit 2). No response has

yet been received from defendants.

24. The discontinuation of aid has caused irreparable

harm and suffering to Mrs. Lett and her four young de-

pendents.

25. Plaintiffs have made no previous request for relief

from this Court.

Richard Kwasnik, Esq.

(Sworn to February 28, 1968.)

87a

Exhibit 1 Annexed to Foregoing Affidavit

Decision After Hearing

STATE OF NEW YORK

DEPARTMENT OF SociaL SERVICES

Se EE

In the Matter of the Appeal of

Estuer Letr

from determinations by the New York City Department of

Social Services relating to the adequacy of a grant of Aid

to Dependent Children.

The above named Esther Lett, hereinafter referred to

as the appellant, having appealed from determinations by

the New York City Department of Social Services herein-

after referred to as the agency, relating to the adequacy

of a grant of Aid to Dependent Children, and a hearing

having been held at the office of the State Department of

Social Services located at New York, New York on the 1st

day of August, 1967 before Frederick Goldfeder, Esq.,

Referee; and the appellant, Esther Lett, having appeared

in person, represented by Stephen Nagler, Esq.; and David

Gilman, Esq., and the agency having appeared by Mae

Feinstein, Administrator, Fair Hearings and Dennis

0’Connor, Esq., also having been present; and an oppor-

tunity to be heard having been accorded all interested par-

ties herein and the evidence having been taken, the record

read and due deliberation having been had, it is hereby

found :

88a

Exhibit 1

1) The appellant, Esther Lett, 38 years of age, is mar-

ried and resides at New York, New York with her two

children, the eldest being 16 years of age and the youngest

being 6 years of age.

2) The appellant appealed from failure of the agency

to act upon a request of a special grant for clothing and

household items; improper “aspension of the grant of Aid

to Dependent Children for the period March 1 to March 23,

1967 which resulted in the need to borrow $45 for neces-

sities; failure of the agency to pay carfare and expenses to

enable the appellant to attend an ‘‘orientation’’ course for

‘“‘Qperation Head Start’? employees at Hunter College;

failure of the agency to properly budget the appellant’s

shelter allowance which failure resulted in dispossess pro-

ceedings being brought and failure of the agency to pay car

fare and other expenses incurred by the appellant in visits

to the Social Services Center made at the agency’s request

and in attending the Fair Hearing.

3) The agency admitted receipt of the appellant’s re-

quest for items of special need dated April 21, 1967. On

May 22, 1967 a home visit was made during which, the agen-

cy claims, the appellant’s needs were fully explored and a

special grant issued to cover all items of need which were

verified by the appellant. The appellant admitted receipt

of the grant, but she bought items she needed, without

regard to the specific items covered by the grant. She

stated she still needed clothing and household items, some

of which were not previously requested.

4) The agency stated that the temporary suspension

of the grant of Aid to Dependent Children was made be-

cause the agency had no official knowledge of the appellant’s

residence, so that only emergency assistance was granted.

However, the agency’s record and testimony shows that it

89a

Exhibit 1

was paying, as emergency assistance, verified rent of the

appellant’s place of residence and that the appellent was

frequently seen by the agency’s staff. The appellant stated

that she incurred debts of $45 due to the suspension.

5) The agency’s position with respect to the shelter

allowance was that the appellant diverted one-half month’s

rent, which was the cause of her constantly being one-half

month in arrears, but that it authorized duplication of the

grant to the extent of one-half month shelter allowance in

order to bring the rent up to date.

6) The agency’s position with respect to car fare and

expense while attending Hunter College was that this was

to be paid by ‘‘Operation Head Start’’ and that no prior

request was made for the other car fare items. The amount

of schovi car fare for her children would be added to the

budget when verified. Lost wages, caused by visits to the

social services center, would be covered, since only actual

wages received is a resource in calculating budget deficit.

The entire record having been carefully considered, it

is determined that the agency made a proper evaluation of

the appellant’s request for items of special need, in ac-

cordance with the provisions operations 351.1(a), 351.1(d),

351.2(b) and 351.11 of the regulations of the State Depart-

ment of Social Services. Needs arising since the issuance

of the special grant made as the result of the home visit

May 22, 1967, having now been brought to the attention of

the agency, should be investigated in accordance with its

policy.

The agency’s suspension of assistance was improper.

Appellant’s attendance at the Hunter College Orienta-

tion course was an expense incident to employment which

should be met in accordance with the provisions of section

352.5(b).

90a

Exhibit 1

The agency’s duplication of shelter allowance was sufi.

cient to insure the appellant remaining in her apartment.

Ir Is THereForE Heip THat:

The agency’s action in response to the appellant’s re.

quest for items of special need, dated April 21, 1967 was

proper, and is affirmed.

The appellant’s complaint with respect to the alleged

inadequacy of the shelter allowance has been satisfied.

The agency is directed to investigate the expenses in-

curred by the appellant in attending the ‘‘Operation Head

Start’’ orientation course, to reimburse the appellant for

verified expense not included in her budget and not pay-

able by others, and make its report thereon in accordance

with section 356.4(e) of the Regulations of the State De-

partment of Social Services.

The agency is directed to calculate the appellant’s

budget for the period of suspension, subtract therefrom

the amount of emergency assistance given to the appellant

and reimburse her for the difference. The agency is fur-

ther directed to make its report thereon in accordance with

the provisions of Section 356.4(e) of the Regulations of

the State Department of Social Services.

Dated: Albany, New York

Nov. 2, 1967

S/ George W. Chesbro

Acting Commissioner

9la

Exhibit 2 Annexed to Foregoing Affidavit

Request for Fair Hearing Dated February 19, 1968

February 19, 1968

Hon. Joseph Louchheim

Deputy Commissioner

State of New York Department

of Social Services

270 Broadway

New York, New York 10007

Re: LETT, Mrs. Esther Non-resident Center

354 Cypress Avenue Apt. 52

Bronx, New York

Dear Commissioner Louchheim:

On behalf of the above named client we request an emer-

gency fair hearing to correct the arbitrary closing of Mrs.

Lett’s case and to recover any expenses incident to the

closing as well as the failure of the agency to meet her

clothing and household needs.

Thank you for your cooperation.

Very truly yours,

Stephen M. Nagler

SMN :n

ec: Comm. Goldberg

92a

Affidavit of Esther Lett in Support of

Foregoing Complaint

IN THE

UNITED STATES DISTRICT COURT

For tHE SouTHERN District or New York

[Same Tite]

State of New York )

County of New York ) ss.:

Mrs. Estuer Lett, being duly sworn, deposes and says:

1. I live at 354 Cypress Avenue, Apt. 52, Bronx, New

York. I have four dependents, all nieces and nephews,

aged 3 months, 7, 12, and 15. We received public assistance

until February 1, when aid was abruptly terminated.

2. I am absolutely destitute, and am on the verge of

starvation, as are my four dependent children. The De-

partment of Social Services has refused to respond to

requests made by both me and my attorney to rectify their

error and restore full public assistance. I am completely

desperate and do not know what I am to do if the Depart-

ment fails to provide the aid to which I am entitled.

3. On February 18, 1968, I had to go to Harlem Hos-

pital with my dependents for treatment of diarrhea caused

by eating some spoiled food given us by a neighbor. We

have been forced to subsist on such hand-outs because our

welfare payments were cut off as of February 1, 1968.

93a

Affidavit of Esther Lett

4. On February 22, 1968, I went to the Emergency Wel-

fare Center at 11 West 13th Street in New York City, in

utter desperation, and was refused assistance.

5. I was refused welfare after February 1, 1968, on the

grounds of ‘‘concealment of assets’’. The Department of

Social Services claims that I have earned $1,982.00 work-

ing as a teacher’s aide for the Board of Education from

July 11, 1967 to February 2, 1968. Although I worked for

the Board of Education this past summer for six weeks in

the Head Start program, I have not been employed by the

Board since August 20, 1967. My total income working for

Head Start from July 8 to August 20, 1967 was $350.00.

Not only was the Department aware of this employment,

but it was discussed at a fair hearing before the State De-

partment of Social Services on July 20, 1967.

6. After August 20, 1967 I worked at Day Care Centers

on 26 different days, sometimes working for the entire day,

other times working for only half a day. My total income

from this substitution work was $300.00, and this is the

only income I have been able to obtain since August 20,

1967.

7. Early Tuesday morning February 27, 1968, I went

to the Department of Social Services’ Melrose Center to

seek emergency aid. During the afternoon, while my re-

quest was presumably being processed, I fainted. I had

no food to eat since I awoke that morning. When I re-

vived I requested money for food, but was told that au-

thorization in my case had not yet been approved. At

5:00 P.M., after waiting eight hours, I was given a single

issue emergency grant of $15 and told to return’on Friday.

I was given no assurance that I would receive any further

assistance on Friday.

94a

Affidavit of Esther Lett

8. I have no money, and have been living these past

three weeks from what little food my neighbors could spare

for myself and my four dependent children. We will all

starve without being restored to full public assistance. I

have told the Department of Social Services the truth, but

they have erroneously decided that I am earning a lot of

money and concealing it. I have not seen the letter from

the Board of Education to the Department of Social Serv-

ices, so I do not know who is making the mistake. But

someone will have to correct the mistake, because we are

all so much in need of aid. This is an awful thing to hap-

pen right here in New York City in 1968.

Esther M. Lett

(Sworn to February 28, 1968.)

95a

Affidavit of David Gilman in Support of

Foregoing Complaint

IN THE

UNITED STATES DISTRICT COURT

For tHe Soutuern District or New York

(Same Tite]

State of New York )

County of New York ) ss.:

Davip Gutman, being duly sworn, deposes and says:

1. I am an attorney admitted to practice in the State

of New York, and am employed as an attorney in the Legal

Service Unit of Mobilization for Youth, Inc., 759 Tenth

Avenue, New York, New York. In this capacity I am of

Counsel to Harold J. Rothwax, the Attorney of Record for

Mrs. Ruby Sheafe, Plaintiff in the above-entitled action,

and in this capacity I have represented Mrs. Sheafe from

February 19, 1968, to the present time.

2. On February 19, 1968 Mrs. Sheafe came to our office

and told me that her public assistance aid had been dis-

continued effective January 16, 1968. Mrs. Sheafe pro-

duced a ‘‘ Notice of Discontinuance of Grant’’ (attached to

the complaint as Exhibit A) dated January 17, 1968, that

gave the reason for discontinuance as ‘‘refusal to permit

visits (Collateral) ’’.

3. Mrs. Sheafe told me that on January 8, 1968, she

had visited the Gramercy Welfare Center and spoken with

her worker, Mrs. J. Mitchell, who had informed Mrs.

Sheafe that assistance would be cut off because Mrs. Sheafe

96a

Affidavit of David Gilman

refused to give the name, address and telephone number

of her former employer. Mrs. Sheafe told me that she in.

sisted upon being informed of the reason for disclosure of

this information, and that the worker refused to provide

any. The worker then informed Mrs. Sheafe she would

receive no further public assistance.

4. Mrs. Sheafe told me that she worked part time for

Dr. Edward F. Hartung, M. D., with offices at 580 Park

Avenue, New York, New York. She worked a few evenings

each week, was paid by the hour, and averaged about

$25.00 a week. She has been employed by Dr. Hartung for

approximately the last fourteen months.

5. On January 26, 1968 Mrs. Sheafe has requested an

impartial review of her case by the State Department of

Social Services, in the letter attached hereto as Exhibit B.

6. I called the State Department of Social Services on

February 19, 1968, and was informed that since Mrs. Sheafe

had been receiving Home Relief she has no statutory right

to a hearing prior to March 1, 1968.

7. I then callec the New York City Department of So-

cial Services, Waverly Welfare Center, and spoke with

Mr. Young, who was Mrs. Sheafe’s Unit Supervisor. He

informed me that Mrs. Sheafe’s case was not closed, sus-

pended or discontinued but was considered to be a ‘‘pend-

ing case’? awaiting further investigation. Mr. Young ae-

knowledged that no assistance has been provided to Mrs.

Sheafe since January 1, 1968.

8. I requested a meeting with Mr. Young, Mrs. Sheafe

and you deponent to determine if the issue of eligibility

could be resolved. This meeting was scheduled for Febru-

ary 26, 1968.

97a

Affidavit of David Gilman

9, On February 26, 1968 a meeting was held with Mr.

Young, Unit Supervisor and the case worker. I was in-

formed that Mr. Young would present the case to his su-

periors and would call me that very afternoon and advise

me whether the case would be reopened. I have had no

further communication from Mr. Young regarding our

client’s eligibility. I have called Mr. Young at least five

times in the last two days. Each time I called I was in-

formed that Mr. Young was not in and that he would re-

turn my call, as of date I’ve had no response.

10. Since public assistance was terminated Mrs. Sheafe

has not had enough money to pay her rent and pay for

other necessities of life. She has been able to survive sole-

ly due to the fact that her landlord, the Y. W. C. A. at 356

West 34th Street, has allowed her rent bills to accumulate.

Mrs. Sheafe’s immediate needs are being met from a five

dollar loan from Mobilization for Youth, but obviously this

source of support cannot be continued.

David Gilman

(Sworn to February 27, 1968.)

98a

Affidavit of Luis M. Neco in Opposition to Plaintiffs’

Motion and in Joinder of Defendants’ Cross-Motion

UNITED STATES DISTRICT COURT

For THE SouTHERN District or New York

[Same Titte]

State of New York )

County of New York ) ss.:

Luts M. Neco, being duly sworn, deposes and says:

1. Deponent is an Assistant Corporation Counsel in

the office of J. Lee Rankin, Corporation Counsel, the attor-

ney for defendant Jack R. Goldberg, Commissioner of the

New York City Department of Social Services. Deponent

is admitted to practice law in the State of New York and

before this Court.

2. Deponent makes this affidavit in opposition to the

motion of plaintiffs for a preliminary injunction, the con-

vening of a three-judge court and a class action order. De-

fendant Goldberg also joins in a motion by the remaining

defendants for an order pursuant to Rule 12(b) of the

Federal Rules of Civil Procedure to dismiss plaintiffs’

complaint for failure to state a claim upon which relief

may be granted.

3. The complaint and motion are brought by five

public assistance recipients who allege that their individual

public assistence benefits were terminated without a hear-

ing having been accorded each one prior thereto. A sixth

plaintiff claims imminent termination.

99a

Affidavit of Luis M. Neco

4. The prayer for relief in the complaint seeks to have

the court:

‘<1. Assume jurisdiction of the cause and convene

a three-judge Court pursuant to Title 28 U.S.C. §2281.

2. Enter a temporary restraining order and a pre-

liminary injunction ordering the defendants to refrain

from

1. refusing to pay the named plaintiffs herein

their regular public assistance grants and

2. terminating aid to any recipient of public as-

sistance without giving advance written notice stat-

ing the reasons for such action and without affording

such recipient an opportunity for a hearing prior to

withdrawal of aid.

3. Enter a declaratory judgment pursuant to Ti-

tle 28 U.S.C. Sections 2201 and 2002 and Rule 57 of

the Federal Rules of Civil Procedure declaring the

Sections 213(2), 214, 304, 325, 350(2)(b) and 353 (2)

of the New York Social Service Law and related pro-

visions, and the regulations and rules issued pursu-

ant thereto, violate the Fourteenth Amendment to

the United States Constitution and the Social Se-

curity Act on their face and as applied, insofar as

they authorize and require termination or suspen-

sion of public assistance prior to granting reasonable

notice and opportunity for a hearing meeting due

process standards.

4. Enter a preliminary and permanent injunc-

tion restraining the defendants, their successors in

office, agents and employees from terminating or

suspending the aid of any public assistance recipient

prior to the granting of reasonable and adequate

100a

Affidavit of Luis M. Neco

notice and opportunity for a hearing which satisfies

the standards of due process of law.

5. Allow plaintiffs their costs herein, grant them

and all others similarly situated such additional or

alternative relief including payment of all moneys

wrongfully withheld, as the Court may deem to be

just and appropriate.”’

5. Plaintiffs’ motion seeks:

‘*1. A preliminary injunction enjoining the de-

fendants, their agents, employees and attorneys and

all persons in active concert and participation with

them from:

(1) refusing to pay the named plaintiffs herein

their regular public assistance grants, to wit, semi-

monthly payments in the amounts indicated: John

Kelly, $80.05; Randolph Young, $57.00; Juan De-

Jesus, $56.80; Pearl Frye, $126.00; Pearl McKinney,

$155.00; and Altagracia Guzman, $85.00; and

(2) suspending or terminating aid to any re-

cipient of public assistance without giving advance

written notice stating the reason for such action and

without affording such recipient an opportunity fora

due process hearing prior to withdrawal of aid.

The grounds of this motion, as more fully set forth

in the verified complaint filed January 29, 1968, and

the annexed affidavits of Henry A. Freedman, dated

February 1, 1968; Edward V. Sparer, dated January

28, 1968; Stephen Wizner, dated January 28, 1968;

Peter H. Darrow, dated January 29, 1968; and Marilyn

Becker, dated January 29, 1968, are that:

a. Plaintiffs and all members of the class are

either suffering or threatened with irreparable in-

101a

Affidavit of Luis M. Neco

jury in that they are now, or may at any time be,

without means to provide for themselves the basic

necessities of food, clothing and shelter.

b. The issuance of a preliminary injunction will

not cause undue inconvenience or loss to the defend-

ants but will prevent irreparable injury to the plain-

tiffs.

ce. The statutes and regulations which deny plain-

tiffs a hearing prior to termination or suspension of

public assistance violate plaintiffs’ rights under the

Fourteenth Amendment to the Constitution of the

United States.

d. Plaintiffs have no adequate remedy at law.

2. The convening of a statutory court of three

judges for the purpose of hearing and determining

this application for a preliminary injunction and this

cause, in accordance with the provisions of Title 28

United States Code Sections 2281 and 2284.

3. An order determining that this action may prop-

erly proceed as a class action pursuant to Rules 23(a)

and 23(b) (2) of the Federal Rules of Civil Procedure.’’

6. Defendant Goldberg’s grounds for opposition to

jlaintiffs’ motion is that the controversy herein has been

endered moot in that said plaintiffs have been accorded

he relief prayed for in their motion insofar as the State

Department of Social Services has promulgated amend-

nents to its rules and regulations to provide for notice

ind a hearing prior to suspending or terminating public

ssistance benefits. The case has further been rendered

noot in that all of the plaintiffs, except plaintiff Young,

ire currently receiving public assistance benefits. Plaintiff

eRe Nenener enti metereeen

102a

Affidavit of Luis M. Neco

Young is presently in Manhattan State Hospital under.

going treatment for detoxification of narcotics, and is there-

fore not presently entitled to public assistance benefits.

The Instant Controversy is Moot

I. Amendments recently promulgated by the State Depart.

ment of Social Services require notice and a hearing

prior to termination or suspension of benefits.

7. The affidavit of Assistant Attorney General Joel L.

Sachs dated February 21, 1968 in opposition to plaintiffs’

motion and in support of defendants’ (other than defend-

ant Goldberg) motion shows that the New York State

Department of Social Services has amended its regulations

to provide for adequate and full notice, and a hearing with

the right of representation by counsel prior to the suspen-

sion or termination of public assistance (Sachs affd. pp. 2-

3; Exhibit A). Im addition, the fair hearing procedures

have been amended to extend to all welfare recipients, and

to give timely notice of such fair hearing right. The recipi-

ent is notified that he may be represented by counsel, and

that he has all the other ‘‘due process”’’ procedural rights.

(Sachs affd. p. 3; Exhibit B).

8. The above amendments are binding on defendant

Goldberg and will be implemented as expeditiously as pos-

sible. (Affidavit of Merrill Charlton, p. 5).

9. Thus, the controversy between plaintiffs and de-

fendants is moot.

II. Plaintiffs have had their benefits restored, while one

never had her benefits suspended or terminated.

10. As the annexed affidavit of Merrill Charlton shows,

plaintiff Guzman never had her public assistance benefits

103a

Affidavit of Luis M. Neco

suspended or terminated. Plaintiffs Kelly, DeJesus, Me-

Kinney and Frye have had their public assistance benefits

restored. Plaintiff Young is presently in Manhattan State

Hospital undergoing treatment for detoxification of nar-

cotics, and is therefore not presently entitled to public

assistance benefits. Plans have been made, however, to

render such assistance to him as soon as he is discharged

from the hospital and applies for such benefits (Charlton

affd. pp. 1-4).

11. Thus, there is no longer any controversy between

plaintiffs and defendant Goldberg, and the instant proceed-

ing is moot.

12. Defendant Jack R. Goldberg joins with the remain-

ing defendants in their arguments against the convening

of a three-judge statutory court and the designation of

the instant case as a class action.

13. In addition, because the mootness of the instant

controversy is clear defendant Goldberg does not presently

fully urge that the Court apply the salutary doctrine of

abstention. He nevertheless reserves his right to urge its

application if deemed necessary.

Wuererore, defendant Jack R. Goldberg respectfully

requests that plaintiffs’ motion for a preliminary injunc-

tion, the covering of a three-judge statutory court and a

determination that the instant action be designated a class

action be denied and that the motion of the remaining

defendants to dismiss the complaint be granted as to all

defendants.

Luis M. Neco

(‘Sworn to February 29, 1968. )

104a

Affidavit of Merrill Charlton in Opposition to

Plaintiffs’ Motion and in Support of Cross-Motion

UNITED STATES DISTRICT COURT

SouTHERN District or New York

[Same Tite}

State of New York )

County of New York ) ss.:

MERRILL CHARLTON, being duly sworn, deposes and says:

I am an assistant attorney in the Legal Division of the

Department of Social Services of the City of New York. I

submit this affidavit in support of defendant Jack R. Gold-

berg’s opposition to plaintiffs motion and in support of

the remaining defendants’ cross-motion.

I have been duly admitted and actively engaged in prac-

tice in all courts of record of the State of New York since

1939, and am also a member of the bar of this Court and

of the Supreme Court of the United States.

I am familiar with the facts and circumstances of this

suit from its inception on January 29, 1968. My sources

of the following facts concerning these plaintiffs and the

grounds of my belief thereof are the official records of the

Department of Social Services of the City of New York

kept and maintained in the regular course of business for

each of them, all in my possession, and my conversations

with Department employees in respect to them.

As to plaintiff Randolph Young, our official records

show that he has a substantial history as a narcotic user

and an alcoholic. At present he is an inmate of Manhat-

tan State Hospital (Ward 3B) at Ward’s Island, where he

105a

Affidavit of Merrill Charlton

has been taking the 25 day detoxification treatment since

on or about February 14, 1968. He is expected to be re-

leased therefrom on or about March 10, 1968. Miss Helen

Eberlin, welfare case supervisor at Amsterdam Center, in-

formed me on February 27, 1968, that plans for Mr. Young

are being made to enable him to be taught a skill by which

he ean become self-sustaining and rehabilitated; that such

plans have been in the offing for quite some time. Of course,

he will be given public assistance until he learns this skill

as long as he maintains his eligibility therefor. This is

standard help made available by the Department for peo-

ple such as Mr. Young. During the period of hospitaliza-

~ tion, however, Mr. Young is ineligible for public assistance.

We come now to the case of plaintiff Altagracia Guz-

man. Admittedly, her public assistance has not been sus-

pended or discontinued, and she still is getting her allotted

grants. Since she is not an aggrieved party, her complaint

should be dismissed outright as matter of law.

Our ease record shows that plaintiff John Kelly changed

his address so often that it was almost impossible to keep

contact with him to send him his grants, and that the De-

partment had to chase after the checks sent to him at his

last known addresses where he did not stay long enough

to pick them up, and for all of which he was issued replace-

ment funds. It is simply incorrect for his complaint (pages

5 & 6) to allege that his case was closed because he vio-

lated a caseworker’s orders to move out of the Broadway

Central Hotel. He never was told to move out of any

hotel—he was told that he must obtain a permanent ad-

dress in order for his public assistance to continue steadily.

Not only that—on January 5, 1968 his case was closed due

to a recommendation to reclassify his ease to a (PAD) Pre-

sumptive Aid to Disabled category. He then disappeared

and after some absence during which his whereabouts were

uknown, he notified the Department that he was living on

106a

Affidavit of Merrill Charlton

Mott Street. On January 30, 1968 his case was reopened.

In the meantime, whenever he came to the Welfare Center,

both before and after the commencement of this action, he

received emergency assistance in addition to his grants.

At all events, on January 30, 1968 he was i

This text is long and has been trimmed here. Open the source document for the complete 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.