Amicus Curiae Brief — Goldberg v. Kelly

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Attiaaduarems Ort, U.S,

FILED

IN THE SEP2 1969

Supreme Court of the Anited SHtapes. ois cer

Ocroser Term, 1969.

No. 62

JACK R. GOLDBERG, Commissioner or SocraL SERVICES

oF THE City or New York,

Appellant,

vs.

JOHN KELLY, RUBY SHEAFE,

TERESA NEGRON, et at.,

Appellees.

0X APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK.

BRIEF OF AMICUS CURIAE ON BEHALF OF

APPELLEES.

Victor G. RosensLum,

3203 S. E. Woodstock Boulevard,

Portland, Oregon 97202,

Craig W. CHRISTENSEN,

DanreEL Wo. FEssLer,

25 West Chicago Avenue,

Suite 500,

Chicago, Illinois 60610,

Attorneys for Amicus Curiae, National

Institute for Education in Law and

Poverty.

Of Counsel :

CupistopHER N. May,

Director of Research for Amicus Curiae,

National Institute for Education in Law

and Poverty.

INDEX.

PAGE

Interest of Amicus Curiae, National Institute for Kdu-

cation in Law eee POP is Sok hicbesicxviwese’s 1

Summary of Argument ......-++++sseeeeeeeeeee eres 4

Argument ....seseereeeeeeeeeeeeeeeeeeeeteeeeeeees 6

L A Recipient of Public Assistance Benefits Has a

Constitutional Due Process Right to Notice and

a Trial-Type Administrative Hearing, Which

Hearing Must Be Afforded Him Before the

Agency Can Impose Any Adverse Consequences

Upon His Previously Determined Entitlement 6

A. The Time Has Come for This Court to

Squarely Repudiate the ‘‘Right vs. Privi-

lege’? Dichotomy and to Reaffirm That Re-

gardless of the Nature of the Affected

Interest Due Process Forbids the Govern-

ment From Ever Acting Arbitrarily Either

Substantively or Procedurally, Against a

COE a vee nckdalsbaeeh eee sehen shee tens 10

B. The Interest of the Welfare Recipient in

Subsistence Is So Fundamental as to Re-

quire the Government to Meet the Most

Stringent Standard of Due Process Before

It May in Any Way Impair His Entitlement 17

C. The Recipient’s Constitutional Right to a

Prior Trial-Type Hearing Is Not Precluded

by the ‘‘Legislative vs. Adjudicative’’ Di-

chotomy, for in All Cases a Recipient Poses

Questions Historically and Functionally Ad-

dressed to Adjudication ................. 20

D. The Hearing to Which Welfare Recipients

Are Constitutionally Entitled Must Occur

Before Benefits Are Terminated, Suspended,

Reduced or Otherwise Withdrawn ........ 25

KE. The Constitutional Due Process Hearing to

Which the Welfare Recipient Is Entitled

Must Contain, at a Minimum, Nine Basic

Elements Recognized by This Court

Hikes 92

M, NOOD cee ee ee scceeeessses, %5

teaptatdan MTT 36

vn satpheands nema RE Tee 37

. Confrontation and Cross-Examination.. 4

. Right to Present Evidence and Make

Oral Argument

4. Oral Hearing

II. The New H. E. W. Regulations Cannot Serve as

the Basis for a Non-Constitutional Resolution

of This Case, and Are Unconstitutional on Their

FUE x vccneeneesnuacenncseaNepeanneceses ee 47

A. The H.E. W. Regulations Cannot Serve as

the Basis for the Court’s Resolving This

Case in a Non-Constitutional Manner .... 4)

B. The H.E. W. Regulations Are Inconsistent

With the Fundamental Principles of Due

Process and Are Thereby Unconstitutional 5]

1. The Regulations Promulgated by

H.E.W. Permit and Encourage the

States to ‘‘Suspend’’ Assistance With-

out Affording an Opportunity for a

ee rE ei ae 51

2. The H. E. W. Regulations, Requiring the

Continuation of Assistance Only in Cases

Where the Request for a Hearing Is

Based Upon Issues of Fact or of Judg-

ment, Permit and Encourage the Arbi-

trary Denial of Due Process Rights .... 58

iii

3. The H.E. W. Regulations Shift to the

Recipient the Critical Burden of Justify-

ing a Prior Hearing, and Thereby Erect

an Impermissible Barrier to the Exer-

cise of His Due Process Rights ........ 57

4, The H.E. W. Regulations Permits the

States to Reduce or Withdraw Assist-

ance Until Such Time as the Recipient

Requests a Fair Hearing, Thereby De-

priving Him of His Right To Be Heard

Before His Statutory Entitlement Is

Feared on... csecccenveseevcccncsess 60

Conclusion 2. ++ - secrete eee e eee cece eee e cece e cess 63

TABLE oF AUTHORITIES.

Cases.

Armstrong v. Manzo, 380 U. S. 545 (1965) .......... 28, 32

Assigned Car Cases, 274 U. So Fs 3 errr 20

Ri-Metallic Inv. Co. v. State Bd. of Equalization, 239

2 9 @) | eevee rr ere er Peer eee 20, 21

Bolling v. Sharpe, 347 U. S. 497 (1954) ........-.---. 17

Bowles v. Willingham, 321 U.S. 503 (1944) .......... 31

Bradstreet v. Neptune Ins. Co., 3 F. Cas. 1184 (No.

1793), (C. C. D. Mass. 1839) .........-.0--e eee 26

Brown v. Board of Educ., 347 U. S. 483 (1954) ...... 17

Cafeteria and Restaurant Workers v. McElroy, 367

oe Ferrer TTT eee 28

(amerena v. Department of Public Welfare, 9 Ariz.

App. 120, 449 P. 2d 957 (Ariz. Ct. App. 1969) ...... 12

Carlson v. Landon, 342 U. S. 524 (1952) ............ 41

Coffin Bros. v. Bennett, 277 U. S. 29 (1928) .......... 31

Cooke v. United States, 267 U. S. 517 (1925) ........ 30

Crowell v. Benson, 285 U. S. 22 SURE). oust a 23, 46

Dartmouth College v. Woodward, 17 U. §. (4 Wheat.)

GER AERIED, «5 me's this svienisennaarss aussie

Esteban v. Central Mo. State College, 277 F. Supp. 649 .

CHFs ER Oe MUD che ea Ne cen kas eicaawel ae 4)

Ewing v. Mytinger & Casselberry, Ine., 339 U. §. 594

(EU, Bas enecsnnekase sn snnbne OVe wan Medixel ae 31

Ex parte Robinson, 86 U. S. 505 | eran. 8

Fahey v. Mallonee, 332 U. S. 245 ( nn) SC ree 30, 31

F. T. C. v. Cement Institute, 333 U. S. 683 (1948) .... 43

Garfield v. Goldsby, 211 U. S. 249 GOWER: > sdukeheians

Lehs Was ddeawi Oh eae edhe canker ke 4, 6, 7, 8, 9, 10, 24, 27, 57

Gideon v. Wainwright, 372 U. S. 335 (1963)

Gonzales v. Freeman, 334 F. 2d 570 (D. C. Cir. 1964). 17,42

Grannis v. Ordean, 234 U. S. 385 ( MPG? S6sivesia ce 25, 28

Greene v. McElroy, 360 U. S. 474 free 36, 41, 42

Griffin v. Illinois, 351 U. S. 12 (1956) ................ 17

Hagar v. Reclamation District, 111 U. S. 701 (1884). .16, 26

Hannah v. Larche, 363 U. S. 420 ( RTT

(NaN dee eRe REAL eee whe eke kha yoke 9, 10, 16, 23, 33, 34, 36

I. C. C. v. Louisville & Nashville R. R., 227 U. S. 88

ho RTT ee Pee per Pe nen Se eee ren Fe 45

In re Groban, 352 U. S. 330 (1957) ..............005, 38

In re Murchison, 349 U. S. 133 (1955) .............. 10, 44

Joint Anti-Fascist Refugee Comm. v. McGrath, 341

U. S. 123 (1951) ....13, 15, 16, 22, 23, 28, 29, 30, 33, 34, 39

Jones v. 8. E. C., 298 U. S. 1 (1936) .......... 14, 15, 56, 63

——

Kelly ¥. Wyman, 294 F. Supp. 893 (S. D. N. Y. 1968),

rob, juris. noted sub nom. Goldberg v. Kelly, 394

v. 8. 971 (1969) 22s eee reece eee cece eee eeeeees .. 48, 59

“7 y, Chancellor, Masters and Scholars of the Uni-

versity of Cambridge, 1 Str. (K. B.) 557, 93 Eng.

Rep. 698 (1723)... cece cece cece eee e eect ce ceeeees 25

King v. Smith, 392 U. S. 309 (1968) ...........--.-- 7, 34

lawton v. Steele, 152 U. B. 188 (RBDE) .. 2 orc ccccvnss 30

iat v. Tillson, 140 U. B. SIG (1G91) .... 2... cscceceece 26

| Londoner v. Denver, 210 U. 8. 373 (1908) ........ 27, 40, 42

\cduliffe v. Mayor of New Bedford, 155 Mass. 216, 29

N, BE. 517 (1892) «0. - eee eee e eee cree eee eee ee ees 11

- Yelfillen v. Anderson, 95 U. S. 37 (1877) ...-...--+-. 26

\oore v. Houston, Civ. No. 104435 (Mich. Cir. Ct.,

Wayne County, consent judgment entered Nov. 1,

1) oe 59

Vorgan v. United States, 304 U.S. 1 (1938) ...... 27, 36, 37

Yullane v. Central Hanover Bank & Trust Co., 339

U. 8. 306 (1950) 0... cece cece cece cree eeeeeees 28, 29

- Murray’s Lessee v. Hoboken Land and Improvement

Co., 59 U. S. (18 How.) 272 (1855) ....-..-.+++-- 25, 30

\g Fung Ho v. White, 259 U. SB. B76 (1988) .. 2.005% 20, 39

Nickey v. Mississippi, 292 U. S. 393 cpr rer 50

North American Cold Storage Co. v. City of Chicago,

911 U. S. 306 (1908) ...... cece ee eseccceeereeees 31

Ohio Bell Telephone Co. v. Public Util. Comm’n of

Ohio, 301 U. S. 292 (1937) ..... eee cece eee eeees 10, 44

Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S.

MP MMEED caccccevecessnccccrsacchssneesnarees 23, 45

Opp Cotton Mills, Inc. v. Administrator, 312 U. S. 126

Pe RRR

Ownbey v. Morgan, 256 U.S. 94 CPR 6s eas a 9

Palmer v. McMahon, 133 U. S. 660 Be REE 9f

Peters v. Hobby, 349 U. S. 331 (3B) os Ae 4)

Philadelphia Co. v. S. E. C., 175 F. 2d 808 (D. C. Cir,

1948) oes eee eeeeceeeceeeceeceseeesessesceees.. fl

Phillips v. Commissioner, 283 U. S. 589 (1931) ...... %

Pittsburg, Cincinnati & Ry. v. Backus, 154 U. §, 49]

(BPR) ones sever nsassenccaccneeevenssansantn %

Prentis v. Atlantic Coast Line Co., 211 U. S. 210

HE ps sseerawilicdayiecaxtioscandl ec 21,93

Reynolds v. Sims, 377 U. S. 533 fo Brera 7

Rios v. Hackney, 294 F. Supp. 885 (N. D. Tex. 1967) 4

Rochin v. California, 342 U. S. 165 GRE seccaucee 38

Roller v. Holly, 176 U. S. 398 (1900) ........... 15, 34, 36

Schware v. Bd. of Bar Examiners, 353 U. S. 232 (1957)

(anekecvandedn whee died ies eke ee 13, 15, 17, 18, 19, 4

Shapiro v. Thompson, 394 U. S. 618 (1969) ....29, 32 37, 57

Sherbert v. Verner, 374 U. S. 398 URE wictaiin acne 13, 15

Skinner v. Oklahoma, 316 U. S. 535 bo era 1

Smith v. King, 277 F. Supp. 31 (M. D. Ala. 1967) .... 2

Sniadach v. Family Finance Corp., 395 U. 8. 337 (1969)

s4ERS RELA L A ODRAN ES MER e Rone A 18, 19, 25, 28, 29, 30

Southern Ry. v. Virginia, 290 U. S. 190 (1933) ...... 9, 27

Speiser v. Randall, 357 U. S. 513 to Fer 59

Spencer v. Merchant, 125 U. S. 345 (1888) .......... 26

Springer v. United States, 102 U. S. 586 (3880). ..<.: 30

Standard Airlines, Inc. v. C. A. B., 177 F. 2d 18 (D. C.

SU: SUMED S54 vs ck w Gk puSne an alae dence 4)

vii

Taylor v. Porter, 4 Hill 140, 15 N. Y. Common Law

Rpts. 773 (N. Y. Supreme OR, ROME) nis xine cvicnix ss 26

Thorpe V: Housing Auth. of Durham, 393 U. S. 268

fC) ee 48, 49, 50

Tumey v. Ohio, oe eo 4g eee as 43

Udall v. Tallman, 380 U. S. 1 (1965) ........-...++-- 34

United States and I. C. C. v. Abilene & Southern Ry.,

965 U. S. 274 (1924) ...... cece cece cece cere cence 10

[nited States v. Illinois Central R. R., 291 U. S. 457

Westberry v. Fisher, 297 F. ener 1109 (D. Me. 1969)

12, 14, 15

Wichita R. R. & Light Co. v. Public Util. Comm’n of

Kansas, 260 U. S. 48 (1922)

Williams v. Gandy, Civ. No. G. C. 6728 (N. D. Miss.,

filed June 9, 1967)

Willner v. Committee on Character and Fitness, 373

U. 8. 96 (1963)

Windsor v. McVeigh, 93 U. S. 274 (1876)

Winona & St. Peter Land Co. v. Minnesota, 159 U. S.

526 (1895)

Wieman v. Updegraff, 344 U. S. 183 (1952)

Yakus v. United States, 321 U. S. 414 (1944)

fiffrin, Inc. v. United States, 318 U. S. 73 (1943) .... 48

Statutes.

42 U.S. C. § 602(a) (4)

42 U. S. C. § 602(a) (10)

42 U.S. C. § 606(a)

42 U. 8. C. § 1302

—=y

Viii

Act of July 1, 1902, ch. 1362, 32 Stat. 641.0... 7,8

Act of June 10, 1896, ch. 398, 29 Stat. 339... 7,8

Act of June 28, 1898, ch. 517, § 11, 30 Stat. 8 1

Social Security Act, Title IV:

§ 402 (A)(4) 2.0... eee eee cee ee eeecee ccs, |

§ 405 (0) (10) 2.02... cece cc eeseemessseeseeesss 7

PODER) ce cessscncnesecescsccecevassceseames 7

Arizona Revised Statutes §46-211A ............. 52

Calif. Welf. & Inst. Code § 10951 ...............,... 61

Del. Code Ann., tit. 31, § 508 (Supp. 1965) .......... 59

Regulations.

Supreme Court Rules, Rule 42 ...................... 3

U. S. Dept. of Health, Education and Welfare, Hand-

book of Public Assistance Administration (Federal

Handbook), Pt. IV:

PONE Ons nkcavasssssensinnssnnsocccecsc tt 43

SUED 22 on cdetnsnceaneschutencouneaneuin 37

POE PN CEx daw 8 sees karensddccnecaennpecnel 35

POE bAREL ches eebes decaccckedccicL. 36, 40, 41, 42

BO #006 eicckccncckaecnudinsheccwumene 44

POPU BA6bSdc ks ckdswadednanddeckicecinme 22

ho eer rey rea 24, 59

PRINT SAK ALS doldeweanddulnebwcuwes temneuel 61

PONE cuentas yb + semeeanedcuanseeie 8

POEM . 005 64 wee wheiaeunscedctexciuccue 8

PED “KS406 04 60s getdndeh oknadidscseccuea 35, 58

IPE, bac Kew csankanedéhicaunek caneeee 38

OEE 408s.u0n0ks06ncusdunendsccauuiel 39

MN Sc uNGaacovayc onuctes cece 36, 40, 41, 42

BOUID(G) ..c2eseseeesenceercerccssccsccesecens 43

GGUO0(F) .-eeeecc creer reece eeseceeteeeeeesenes 43

GGMDO(I) ee eres eeeceeeer essence eseceeeer ees 45

$6500(0) -+--+sseecceerecetecssecececccceneces 37

U. §. Dept. of Health, Education and Welfare, Hand-

hook Transmittal No. 140 (Feb. 8, 1968) ... .35, 38, 40, 44

93 Fed. Reg. 17853-54 (Nov. 30, 1965) ........---+-- 37

34 Fed. Reg. 1144 (Jan. 24, 1969) ...... 38, 47, 50, 54, 59, 61

Conn. State Welfare Dept., Manual: Social Service

Policies—Public Assistance, § 370.3(A) .......----- 52

Ill. Dept. of Public Welfare, Manual of Categorical

Assistance, ch. 8200 ........ 0s eee eee eee eee cress 52

Miss. Dept. of Public Welfare:

Bulletin No. 1335 (April 15, 1968) ..........-- 52, 53

Policies and Procedures for Admin. of Public

Assistance, vol. 3:

pp. 6101-03 . 2.6... eee ee eee eee eee eee ees 53

pp. 7220-21 2.21... cece eee ee eee eee tenes 52

New York Official Compilation of Codes, Rules and

Regs., tit. 18, ch. II, § 351.22(c)(3) ....-.-----+++-s 52

Other Authorities.

Burrus and Fessler, Constitutional Due Process Hear-

ing Requirements in the Administration of Public

Assistance: The District of Columbia Experience,

16 Am. U. L. Rev. 199 (1967) ..........eeeeeeeees 3, 33

Byse, Opportunity to be Heard in License Issuance, 101

U. Pa. L. Rev. 57 (1952) ......cccccccccccccscceces 11

Comment, Developments in the Law: Equal Protec-

tion, 82 Harv. L. Rev. 1065 (1969) ...........-..5. 18

Comment, Withdrawal of Public Welfare: The

to a Prior Hearing, 76 Yale L. J. 1234 ( 1967) ..3, ; 57

T. Cooley, Constitutional Limitations (3d ed. , 1874). 21,3

K. Davis, Administrative Law Treatise (1958)

Harvard Classics, vol. 9

Holmes, Natural Law, 32 Harv. L. Rev. 40 (1918) .,

Van Alstyne, The Demise of the Right-Privilege Dis

tinction in Constitutional Law, 81 Harv. L. Rev. 1439

(1968)

it ital tll tate liditie dete tb hh he

—

IN THE

Supreme Court of the Anited States

Ocroser TERM, 1969.

No. 62

JACK R. GOLDBERG, ComMissIoNnER OF Socta, SERVICES

or THE City or New York,

Appellant,

vs.

JOHN KELLY, RUBY SHEAFE,

TERESA NEGRON, er At.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK.

BRIEF OF AMICUS CURIAE ON BEHALF OF

APPELLEES.

INTEREST OF AMICUS CURIAE, NATIONAL INSTITUTE

FOR EDUCATION IN LAW AND POVERTY.

The National Institute for Education in Law and Pov-

erty was established at Northwestern University School of

Law in 1967 to devise and carry out a program of educa-

tional and research support services for the some 2,000

attorneys who are providing free legal assistance for the

poor in Legal Services Programs throughout the United

States. The objective of the Institute has been to assist

—

these attorneys in better serving the interests of their

clients—the poor, those who cannot afford private

to aid them in asserting and vindicating their legal rights

The media through which the Institute has sought ty

carry out its mandate have included both the spoken and

the written word. Through the sponsorship of educations)

courses—with a total enrollment as of this writing of mor

than 3,000 lawyers—the Institute has attempted to illu.

nate those areas of the law in which innovative effort by

poverty law practitioners might serve better to protect

the legal interests of their clients. Research in the sub.

jects that comprise the ever-burgeoning body of “‘poverty

law’’ has led to the publication of seven volumes, in fonr.

teen editions, of materials on the law affecting those who

live in poverty. The Institute’s Handbook Series addresses

both the law as it exists today and as it ought to be.

Through its Clearinghouse Division and its monthly peri

odical, the Clearinghouse Review, the Institute provides for

the nation’s Legal Services attorneys a central gathering

point for the collection and dissemination of pleadings,

memoranda of law and other legal work-products of legal

assistance practice as well as a forum for the publication

of scholarly comment on the legal questions affecting at.

torneys for the poor.

The legal issues considered by the Institute through all

these media have covered the entire spectrum of subjects

relevant to the legal problems of the nation’s poor. Con-

sumer law, economic development, education, housing and

community services have all been addressed by the Insti-

tute’s educational courses and publications. Throughout,

however, a special attention has been reserved for the legal

problems of those who are, or ought to be, recipients of

public assistance benefits. The Institute’s Handbook on

Welfare Law, now in its fourth edition, and the curriculum

for educational courses on the law of welfare have dealt

yith such matters as establishing and retaining eligibility,

fair hearings, preserving client dignity and privacy, insur-

ing payment based on actual need and guaranteeing fair

and rational administrative processes.

Legal questions surrounding a welfare recipient’s right

toa hearing prior to termination or reduction of assistance

have occupied the attention of the Institute since its incep-

tion. The process of education being a two-way street,

the Institute has learned from its experience in dealing

sith the nation’s Legal Services attorneys that the plight

of public assistance recipients who are deprived of suste-

nance without prior hearing is a matter of the gravest

wneern and urgency. Thus, the Institute has engaged in

extensive research on the fair hearing process in an effort

to determine what constitutional and statutory norms must

apply to assure that the legal rights of welfare recipients

are properly vindicated. In this effort, the Institute has

heen fortunate to have among its staff the authors of two

of the pioneering products of legal research in the welfare

fair hearing area: Daniel Wm. Fessler, co-author of Con-

stitutional Due Process Hearing Requirements in the Ad-

ninistration of Public Assistance: The District of Colum-

bia Experience, 16 Am. U. L. Rev. 199 (1967); and Chris-

topher N. May, author of W ithdrawal of Public Welfare:

The Right to a Prior Hearing, 76 Yale L. J. 1234 (1967).

Both of these articles are among the authorities cited in

briefs before the Court in this case.

With the consent of both parties, pursuant to Rule 42 of

the Supreme Court Rules, the National Institute for Educa-

tion in Law and Poverty respectfully submits this brief,

Amicus Curiae, in support of appellees.

SUMMARY OF ARGUMENT.

_ The constitutional right of a recipient of Public assis.

ance to notice and hearing before his previously determines

statutory entitlement may in any way be impaired was, ip

the view of amicus, unequivocally established by this Cony;

more than sixty years ago in the case of Garfield y, Golds.

by, 211 U. S. 249, 262 (1908).

In reaffirming the principle of that case, amicus woul

ask this Court to deal the final and finishing blow to the

‘‘rights vs. privileges’? dichotomy which stil] haunts and

distorts the administration of justice in the lower courts

and administrative agencies. The protections of due proc.

ess are available wherever government would act to impair

the interests of any of its citizens, whether those interests

be characterized as privileges or rights. This Court has

long recognized that due process is a flexible standard, the

content of which must be determined in every case by a

weighing of the competing interests at stake.

Wherever the government poses a substantial threat to

the life of one of its citizens, this Court has always required

that the State satisfy the most stringent standards of due

process. The same strict standards must be applied in the

instant case, where the government would withdraw the

bare means of subsistence from recipients who by definition

have been previously found eligible on the basis of a primi-

tive and dire need. This Court should articulate the prin-

ciple which was the silent premise of two of its earlier

decisions this year—that the individual’s fundamental

interest in subsistence requires that the government satisfy —

the highest standards of proof and rationality whenever

it would seriously threaten to take the health or the life

of any of its citizens.

Just as the protections of due process may not be denied

_ !

the recipient of welfare on the ground that his interest is

a mere ‘privilege,’ neither may these safeguards be

abridged through resort to the distinction between legis-

lative and adjudicative functions. Amicus does not quarrel

with this dichotomy, which limits the opportunity to be

heard to those functions of the agency which are adjudica-

tive in nature. Rather, amicus contends only that in all

instances where the recipient is aggrieved by an agency

threat to his previously established entitlement, the re-

cipient’s contest will pose questions which are historically

and functionally addressed to adjudication.

As applied to the instant case, due process requires that

the hearing to which the welfare recipient is constitutionally

entitled must occur before the agency may in any manner

reduce, condition or withdraw benefits awarded on the

basis of previously determined statutory entitlement. A

long line of decisions of this Court supports the necessity

of such a prior hearing, and while the Court has upon

rare occasion found the use of a summary procedure to be

justified, this has only been where such a procedure is

firmly rooted in history, or where the emergency nature

of the circumstances do not permit the delay of a prior

hearing. Neither of these exceptions justify the use of the

extraordinary summary process in the administration of

public welfare, particularly as this Court has never per-

mitted its use when the sole interest of the state is, as it

is here, the saving of revenue.

In assessing the requisite elements of the prior trial-

type hearing, it is appropriate to look not only to the rele-

vant constitutional decisions of this Court, but as well to

the professional determinations of the agency charged with

administering the categorical assistance programs. This

dual analysis suggests that the prior hearing must contain,

at a minimum, the following nine elements: (1) notice;

(2) discovery ; (3) the right to counsel; (4) an oral heap.

ing; (5) confrontation and cross-examination ; (6) the

right to present evidence and make oral argument; (7) an

impartial tribunal; (8) a decision on the record; and (9)

judicial review.

The regulations proposed by H. E. W. cannot Serve as

the basis for a non-constitutional resolution of this case,

in that they do not extend to the purely locally-funded gen.

eral assistance programs in which six of the plaintiffs are

recipients. As to these plaintiffs, a constitutional decision

is required. Furthermore, the proposed regulations are

on their face unconstitutional, for they both permit and

encourage the states to continue suspending, withholding

and otherwise withdrawing assistance without affording

the aggrieved recipient an opportunity for a prior hearing,

ARGUMENT.

I. A RECIPIENT OF PUBLIC ASSISTANCE BENEFITS HAS

A CONSTITUTIONAL DUE PROCESS RIGHT TO NOTICE

AND A TRIAL-TYPE ADMINISTRATIVE HEARING,

WHICH HEARING MUST BE AFFORDED HIM BEFORE

THE AGENCY CAN IMPOSE ANY ADVERSE CoNsE.

TITLEMENT.

In the view of amicus, the right to notice and hearing

before one may be deprived of benefits to which | e has been

previously found legally entitled, as in the case of recipi-

ents of public assistance, was settled by this Court as a

constitutional requirement of due process of law more than

sixty years ago. In Garfield v. Goldsby, 211 U. §. 249, 262

(1908), a unanimous opinion of this Court declared:

In the extended discussion which has been had upon

the meaning and extent of constitutional protection

against action without due process of law, it has al-

ways been recognized that one who has acquired rights

<n ee

| —

by an administrative or judicial proceeding cannot be

deprived of them without notice and an opportunity

to be heard.

The right to be heard before property is taken or

rights or privileges withdrawn, which have been pre-

viously legally awarded, is of the essence of due process

of law. It is unnecessary to recite the decisions in

which this principle has been repeatedly recognized.

It is enough to say that its binding obligation has

never been questioned in this court.

An analysis of the facts in Garfield reveals a substantial

analogy to the administration of public assistance benefits.

Involved in the Garfield case was the administration of

Acts of Congress providing for the distribution of money

payments and certain lands among individual members of

specified Indian tribes. Eligibility for benefits was to be

determined on the basis of citizenship in one of the tribes,

and an administrative procedure was established to deter-

wine such citizenship and enroll applicants found to be

digible. Act of June 10, 1896, ch. 398, 29 Stat. 339; Act

of June 28, 1898, ch. 517, § 11, 30 Stat. 497; Act of July 1,

1902, ch. 1362, 32 Stat. 641. The legislation provided that

persons applying and meeting the statutory criteria for

digibility should, upon certification, be entitled as of right

to the benefits of the Act, Act of July 1, 1902, ch. 1362, §§ 3,

11, 23, 25, 32 Stat. 641, just as in public assistance persons

meeting the statutory eligibility criteria must be awarded

the benefits provided by the Social Security Act as a matter

of statutory entitlement. See King v. Smith, 392 U. S. 309,

317 (1968); Social Security Act of 1935, as amended,

s§ 402(a) (10), 406(a), 42 U. S. C. §§ 602(a) (10), 606(a)

(Supp. IV, 1969). Also like public assistance, where a fair

hearing must be afforded applicants whose claims are

denied, Social Security Act of 1935, as amended,

§402(a) (4), 42 U. S. C. § 602(a) (4) (Supp. IV, 1969),

the legislation involved in Garfield established procedures

for the adjudication of disputes concerning eligibility. Act

——

eR t+

—

of June 10, 1896, ch. 398, 29 Stat. 339; Act of July 1, 192,

ch. 1362, §§ 24-25, 27-33, 32 Stat. 644,

Petitioner, Goldsby, made application on behalf of him.

self and his minor children for the benefits provided by

the Act, and was found eligible by the Commision respon-

sible for administering the distribution program, His ep.

rollment was approved by the Secretary of the Interior op

October 6, 1905. Thereafter, petitioner received an allot.

ment of land and commenced enjoyment of the benefits

provided by the Congress. Seventeen months passed, and

the Secretary changed his mind. On March 4, 1907, with.

out notice or opportunity for hearing, Goldsby’s name was

stricken from the rolls. On the precise point that such a

procedure involved a denial of due process, Goldsby peti.

tioned the lower federal courts for a writ of mandamus

against the Secretary of the Interior seeking to restore

the status quo. He was successful. 211 U. 8. at 256-58,

The Secretary’s appeal to this Court was unanimously re-

jected. While the case involved questions of statutory con-

struction, the Court affirmed on a rule of decision which

swept beyond the particular facts and addressed itself

generally to the broader question of the relationship be-

tween the individual citizen and the state. There is, said

the Court, ‘‘no place in our constitutional system for the

exercise of arbitrary power. ... The right to be heard

before property is taken or rights or privileges withdrawn,

which have been previously legally awarded, is of the

essence of due process of law.’’ 211 U.S. at 262 (emphasis

added). Accord, Ex parte Robinson, 86 U. S. 505, 518

(1873): ‘‘The principle that there must be citation before

hearing, and hearing or opportunity of being heard before

judgment, is essential to the security of all private rights.

Without its observance no one would be safe from oppres-

sion wherever power may be lodged,”’

The arbitrary cessation of benefits without notice or prior

hearing is surely at least as pernicious when the disad-

victims are public assistance recipients, who look

to the benefits at stake for their very survival, as it is in

the case of Indians deprived arbitrarily of the enjoyment

of their ancient tribal lands. If, as amicus believes, the

rule of Garfield v. Goldsby requires notice and prior hear-

ing as much in the former case as in the latter, there re-

mains the question as to the nature of the proceeding re-

quired to assure the due process of law. Amicus contends

that the answer to this question too is well settled by long-

established principles enunciated by this and other courts.

When, as in public assistance determinations which would

deprive recipients of previously-enjoyed benefits, ‘‘ govern-

mental agencies adjudicate or make binding determinations

which directly affect the legal rights of individuals,’’

nothing less than a full trial-type hearing will suffice to

satisfy the requirements of due proces. ‘(I]t is imperative

that those agencies use the procedures which have tradition-

ally been associated with the judicial process.’’ Hannah v.

Larche, 363 U. S. 420, 442 (1960) ; Southern Railway Co.

v, Virginia, 290 U. S. 190, 199 (1933); Philadelphia Co. v.

$.E.C., 175 F. 2d 808, 817 (D. C. Cir. 1948). In the

Philadelphia Co. case, the court provided a concise sum-

mary of the protective norms which amicus believes to be

constitutionally required here (175 F. 2d at 817):

It is elementary also in our system of law that ad-

judicatory action cannot be validly taken by any tri-

bunal, whether judicial or administrative, except upon

a hearing wherein each party shall have opportunity to

know the claims of his opponent, to hear the evidence

introduced against him, to cross-examine witnesses, to

introduce evidence in his own behalf, and to make argu-

ment. This is a requirement of the due process clause

of the Fifth Amendment of the Constitution.

—

To this list we would add a right to have the ageney dog,

sion made by an impartial hearing officer, In re Murchison

349 U. 8. 133 (1955); which decision is based solely upon

the record made at that hearing, United States and 1.0.0.

v. Abilene & Southern Railway Co., 265 U. §, 274,

(1924) ; Ohio Bell Telephone Co. v. Public U tilities Comm’,

of Ohio, 301 U.S. 292, 300-04 (1937). These contentions yj

be revisited in a subsequent section of this brief,

Amicus respectfully contends that Garfield y, Goldsby,

supra, and Hannah v. Larche, supra, are controlling; ang

to the extent that current or proposed administrative Prac.

tices either as formulated or applied deny welfare recipi.

ents adequate notice and a prior trial-type hearing, they

unconstitutionally deny ‘‘the essence of due process,”

Goldsby, supra, 211 U.S. at 262.

A. The Time Has Come for This Court to Squarely Re.

pudiate the ‘‘Right vs. Privilege’ Dichotomy and to

Reaffirm That Regardless of the Nature of the Affected

Interest, Due Process Forbids the Government from

Ever Acting Arbitrarily, Either Substantively or Pro.

cedurally, Against a Citizen.

A resolution of this appeal based on Garfield v. Goldsby,

211 U. S. 249, 262 (1908), affords this Court a singular

opportunity to finally eradicate a legal aneurysm which

too long has threatened disruption in the flow of due proe-

ess. Reference is to the ‘‘right vs. privilege’’ dichotomy,

While amicus contends for a total demise in all circum.

stances, the destruction of this determinant in the context

of this case—and the primitive human interests here

affected—is most appropriate. The unavoidable lesson of

Garfield, that ‘‘the right to be heard before property is

taken or rights or privileges withdrawn,’ is a complete

answer to the dichotomists, Ibid. ( Emphasis added), Yet,

will be shown, the words of this Court have not been

y heeded in the more than sixty intervening years.

entirel

Among the most troublesome aspects of public assistance

administration is the notion that a citizen has no recourse

to the norms of due process if the government’s action

threatens & ‘privilege’? as opposed to a ‘‘right’’. This

dichotomy, Which was crystallized in an epigram coined

by Mr. Justice Holmes during his service on the Supreme

Judicial Court of Massachusets,’ places a premium upon

labels and abstract characterizations rather than focus-

ing upon the techniques which the government seeks to

employ and their effect upon the threatened interest which

is at stake. First articulated in 1892, such a distinction

was of questionable value even in that era of rugged in-

dividualism when the role of government, save for police

protection, bore little direct impact on the life of a pri-

vate citizen. It is a wholly dangerous and unacceptable

determinant in an age marked by an ever-increasing so-

cial interdependence and an expanding popular function

of government as a source of both direction and limita-

1, “The petitioner may have a constitutional right to talk poli-

tics, but he has no constitutional right to be a policeman.’’ Me-

Aulife v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N. E.

517 (1892). It would appear to amicus that Mr. Justice Holmes

was not a victim of the ‘‘facile generalization’’ which his epigram

in the McAuliffe case has spawned. Twenty-six years after the

statement was articulated, Holmes wrote:

(Flor legal purposes a right is only the hypostatis of a

prophecy—the imagination of a substance supporting the

fact that the public force will be brought to bear upon those

who do things said to contravene it—just as we talk of the

force of gravitation accounting for the conduct of bodies in

space. One phrase adds no more than the other to what we

know without it.

Holmes, Natural Law, 32 Harv. L. Rev. 40, 42 (1918).

Upon reflection, ‘‘privilege’’ has come off no better. ‘Suffice

it to note that ‘privilege’ is simply a label which expresses a con-

clusion reached on other grounds; it tells us nothing about the

reasons, if any, for the conelusion.’’ Byse, Opportunity To Be

Heard in License Issuance, 101 U. Pa. L. Rev. 57, 69 (1952).

tion in the pursuit of ‘*private interests,” Yet,

with exceptions, this judge-made invitation to Oppression

continues to survive . . . if not in this Court . . . thes

in the minds of countless administrative

and magistrates to whom it is an ever Present summons

to complete by semantics journeys only analytically begun

The persistent refusal of even the most 5

lower courts to recognize a constitutional “right” in the

individual needy citizen’s claim to assistance benefits has

meant that this dichotomy continues to cloud access to

due process for a class of citizens particularly Susceptible

to abuse at the hands of arbitrary government Officials.

Smith v. King, 277 F. Supp. 31, 40 (M. D. Ala., 1967),

“It should be noted that there is no vested legal right for

anyone to receive public financial assistance; | | _»,

Camerena v. Department of Public Welfare, 9 Ariz.

120, 449 P. 2d 957, 960-61 (1969), ‘“We agree that the right

to receive benefits is not a constitutional right”’;

Westberry v. Fisher, 297 F. Supp. 1109, 1115 (D. Me,

1969), ‘Unquestionably, there has historically been no

vested right to public welfare.”’ In each of these cases,

the court was able to go beyond this stumbling block by

a technique analogous to the old confession and avoidance.

In Smith and Westberry, the Equal Protection Clause

became the vehicle for achieving constitutional protection.

In Camerena, the court expressly joined a **growing num.

ber of cases which depart from this rigid doctrine and apply

constitutional principles of procedural fairness even though

only a privilege is involved.”’ 449 P. 2d 961.

From time to time, this Court has found the dichotomy

productive of unconscionable results and has refused to

apply it. This has led to its erosion on a case by case

basis. Most recently—and of special significance in the

context of public assistance administration—the Court

only last term rejected the notion that the invocation of

— Re eet

_—

this ancient doctrine might somehow obviate the uncon-

“ationality of durational residence requirements for Aid

to Families with Dependent Children. ‘‘This constitutional

cannot be answered’’, said the Court, ‘‘by the

t that public assistance benefits are a ‘privilege’

and not a ‘right’.”’ Shapiro v. Thompson, 394 U.S. 618,

627 n.6 (1969).

Other contexts as well have seen the dichotomy fall by

exception. Public employment: “To draw . . . the

facile generalization that there is no constitutionally pro-

tected right to public employment is to obscure the is-

sue . . - We need not pause to consider whether an

abstract right to public employment exists. It is sufficient

to say that constitutional protection does extend to the

public servant whose exclusion pursuant to a statute is

patently arbitrary or discriminatory.’’ Wieman v. Up-

degraff, 344 U.S. 183, 191-192 (1952). ‘‘Of course no one

has a constitutional right to a government job. But every

citizen has a right to a fair trial when his government

seeks to deprive him of the privileges of first-class citi-

zenship.”’ Joint Anti-Fascist Refugee Comm. v. McGrath,

341 U.S. 123, 182-83 (1951) (Douglas, J., concurring).

Unemployment compensation: ‘‘Nor may . . . the statute

be saved from constitutional infirmity on the ground that

unemployment compensation benefits are not appellant’s

‘right’ but merely a ‘privilege’.’’ Sherbert v. Verner, 374

U.S. 398, 404 (1963). Practice of professional employment :

“We need not enter into a discussion whether the practice

of law is a ‘right’ or ‘privilege’. Regardless of how ...

characterized, it is sufficient to say that a person cannot

be prevented from practicing except for valid reasons.”’

Schware v. Board of Bar Examiners, 353 U. S. 232, 239

n. 5 (1957).

Notwithstanding these inroads, the dichotomy enjoys a

current vitality in the minds of countless more-or-less in-

—

formed state and local officials. The recent position of

the Attorney General of Maine is illustrative of the danger

that lies in eroding a doctrine which should be 8q

repudiated. In Westberry v. Fisher, supra, 297 F. Supp,

at 1115, the court noted: “. . . The Attorney Genera)’,

position is simply that, since there is nO vested righ

to public welfare, the State may distribute its largesse

in any way it wishes and among any of its citizens j,

chooses to favor.’’ Although the court rejected this

assertion, the impact of its decision was simply to

create another exception to the doctrine. And While

one commentator has recently declared on the basis of

extensive research that the ‘right vs. privilege’’ dichot.

omy is either dead or dying,? it remains for this Court

to finally inter the notion, itself abstractly disquieting,

that in some unarticulated circumstances the government,

and those acting under color of its authority, are free to

act im a manner totally unfettered by the strictures of

fundamental fair play.

This Court has never condoned the exercise of arbitrary

and capricious conduct on the part of agents of the state.

Due process has always meant at least that. ‘Arbitrary

power and the rule of the Constitution cannot both exist.

They are antagonistic and incompatible forces; and one

or the other must of necessity perish whenever they are

brought into conflict.’” Jones vy. S. E. C., 298 U.S. 1, 4

(1936). Amicus asks only that the Court now make un-

equivocally clear that this unbending rule of due process

must prevail whenever government would act to impair the

interests of its citizens, and that it can know of no ex-

ception whether those interests be characterized as mat-

ters of ‘‘privilege’’ or of ‘‘right.’’

2. Van Alstyne, The Demise of the Right-Privilege Distinction

in Constitutional Law, 81 Harv. L. Rev. 1439 (1968). See also

Comment, Withdrawal of Public Welfare: The Right to a Prior

Hearing, 76 Yale L. J. 1234, 1237-39 (1967).

—

Amicus believes its plea for such an articulation of the

minimal requirements of due process asks not for the pro-

mulgation of a new and novel doctrine, but rather for the

reassertion of what ought to be the inescapable reading

of countless decisions already rendered by this Court.

See Shapiro V. Thompson, supra; Wieman v. Updegraff,

supra, Joint Anti-Fascist Refugee Comm. v. McGrath,

supra; Sherbert v. Verner, supra; Schware v. Board of Bar

Eraminers, supra; Jones v. S. E. C., supra. Against this

authority, the ‘‘facile generalization’? (Wieman v. Upde-

graff, supra, 344 U.S. at 191), that is the ‘‘right vs. privi-

lege’ dichotomy surely has no place. Yet the persistent

question, ‘does the aggrieved citizen seek vindication of

an interest in which he has a right?’’ indicates that the

dichotomy thrives at a lower level of decision—both judi-

cial and administrative—where it works great mischief

in tribunals having neither the time, the vision, nor the

inclination to pass beyond the facile. Where the deli-

cate relationship between the individual citizen and the

impersonal state is in dispute the facile solution is too

often dangerous. Surely it is here. Responsible state and

local officials vested with a mandate to provide bare sus-

tenance to the least advantaged of our citizens still deem

themselves to be acting out of grace. F.9., Westberry v.

Fisher, supra, 297 F. Supp. at 1115. But nearly seventy

years ago this Court declared: ‘‘The right of a citizen to

due process of law must rest upon a basis more substan-

tial than favor or discretion.’’ Roller v. Holly, 176 U.S.

398, 409 (1900). That lesson must be reinforced in the

plainest terms.

Having once again declared that those who exercise the

power of government are never free to act in an arbitrary

or capricious manner—and that the characterization of the

interest at stake as ‘‘right’’ or ‘‘privilege’’ is irrelevant

for this rule of due process—amicus would urge the Court

to rearticulate its position as to the content this due

ess right must have in any given case. This Court has

said many times that ‘*by ‘due process’ is meant one wh;

following the forms of law, is appropriate to the case, an

just to the parties to be affected.’’ Hagar v. Reclamation

District, 111 U. §. 701, 708 (1884) (reviewing early ap.

thorities) (emphasis added). ‘‘‘[D]ue Process’, unlike

some legal rules, is not a technical conception with a fixed

content unrelated to time, place and circumstances, _ "

Due process is not a mechanical instrument. [It is not a

yardstick. It is a process.’’ Joint Anti-Fascist Refugee

Comm. v. McGrath, 341 U. §. 123, 162-63 (1951) (Frank.

furter, J., concurring). See also Hannah v. Larche, 363

U. S. 420, 442 ( 1960). Thus, not only is the content of due

process protection to be tailored to the requirements of

each particular case, but the remoteness or immediacy of

the citizen’s interest, its quality and quantity, are all ele.

ments which are properly accounted in striking a balance

between economy and convenience to the state, on the one

hand, and the injury, inconvenience and debasement of the

individual citizen on the other.

In this context, amicus believes this Court should declare

anew that the due process norms of fundamental fair play

must expand to adjust the weight of the government’s bur-

den of justification in direct ratio to the gravity of the

citizen’s threatened interest. Joint Antt-Fascist Refugee

Comm. y. McGrath, supra, 341 U. S. at 163 (Frankfurter,

J., concurring). In the opinion of amicus, the application

of such a test could not but result in the imposition of the

most stringent standard when, as in this case, the interest

at stake is the most primitive and fundamental right to

survive,

The Court of Appeals for the District of Columbia Cir-

cuit recently articulated a rule not unlike the one here

urged by amicus, but in the context of government con-

_—

tracts: “[T]o say that there is no ‘right’ to government

contracts does not resolve the question. . . . Of course

there is no such right; but that cannot mean that the gov-

ernment can act arbitrarily, either substantively or pro-

cedurally, against a person or that such person is not

entitled to challenge the processes and the evidence before

he is officially declared ineligible for government con-

tracts.” Gonzales v. Freeman, 334 F. 2d 570, 574 (1964).

Surely the interest of citizens deprived of public assistance

henefits to which they have been previously found entitled

deserves no less protection.

B The Interest of the Welfare Recipient in Subsistence

Is so Fundamental as to Require the Government to

Meet the Most Stringent Standard of Due Process Be-

fore It May in Any Way Impair His Entitlement.

For millions of this country’s poor, public assistance

represents ‘‘the very means to subsist. . . .’’ Shapiro v.

Thompson, 394 U. S. 618, 627 (1969). The arbitrary or

erroneous Withdrawal of these critical benefits from one

who is still in need may well cause an irreparable harm

to health, or the loss of life itself. Given this most primi-

tive and brutal need, it is imperative that before the wel-

fare recipient’s statutory entitlement may be impaired,

he be given nothing less than the full panoply of constitu-

tional due process protection.

Recognizing that certain human interests are more funda-

mental than others, this Court has held them deserving of

special judicial protection. Skinner v. Oklahoma, 316 U. S.

535 (1942) (marriage and procreation); Brown v. Board

of Educ., 347 U. S. 483 (1954) and Bolling v. Sharpe, 347

U. 8. 497 (1954) (education) ; Griffin v. Illinois, 351 U. S.

12 (1956) (criminal appeals); Reynolds v. Sims, 377 U. S.

533 (1964) (voting). Where such fundamental interests

are at stake, whether it be in the context of due process e

equal protection, this Court hias insisted upon imposing 4

strict standard of judicial rewiew.’

In two recent cases in which the government threatened

to upset the precarious balance: which the poor had Wrought

from life, this Court applied the strictest standard of

review. Shapiro v. Thompsom, supra ; Sniadach vy. Family

Finance Corp., 395 U. 8. 337 (1969). The decisions in both

of these cases reflect the Court:’s awareness of the Peculiar

and oftentimes overwhelming problems of the poor. And

while the opinions in both cases were couched in relatively

orthodox terms, there lurked beneath the surface a prin-

ciple which amicus would ask this Court to articulate

unequivocally today: that the interest of all citizens in gyp.

sisting and enduring in an affluent age of sometimes heart.

less change is a personal interest of the most fundamental

and profound proportions, and is susceptible of being

threatened only by means consonant with the strictest

standards of proof and rationality.

Amicus does not ask this Court to deliver the affirmative

right to life whereby the State would be constitutionally

obliged to assure all of its citizens an adequate existence,

Rather, amicus simply asks this Court to require, as it

has done in all other areas where the government would

threaten the life of any of its citizens, that such actions of

the State be held to the highest standard of constitutional

due process.

In Shapiro v. Thompson, the Court required the state to

show a ‘‘compelling interest’’ before it could deny welfare

assistance to otherwise eligible persons who had not satis-

fied the state’s residency requirement. In a decision based

upon the Equal Protection Clause, the Court found no

3. See Comment, Developments in the Law: Equal Protection,

82 Harv, L, Rev. 1065, 1127-32 (1969).

_ —

legitimate or compelling state concern, and held the resi-

dency laws unconstitutional. While the ostensible basis

of the decision was interference with the constitutionally

protected right to travel, the Court’s obvious underlying

that these laws denied nearly two hundred

concern was ;

thousand of the poor ‘‘the very means to subsist... .

994 U. S. at 627. As Mr. Justice Harlan noted in his

jissenting opinion, the majority came very close to identify-

ing the brutal need to survive as a fundamental interest.

994 U. S. at 660-61.

In Sniadach v. Family Finance Corp., the Court invali-

dated Wisconsin’s prejudgment garnishment statute on

the ground that it failed to comply with the ‘‘fundamental

principles of due process,’’ i.e., ‘‘notice and a prior hear-

ing... .”” 395 U.S. at 342. In applying the flexible norms

of due process, the critical factor for the Court was not

that property was involved, but rather ‘‘the nature of that

property.”’ 395 U. S. at 340 (emphasis added). The at-

tachment of wages posed a very real threat to subsistence,

for the frequent effect of the garnishment law was to ‘‘im-

pose tremendous hardship on wage earners with families

to support.” Ibid. ‘‘The result is that a prejudgment

garnishment of the Wisconsin type may as a practical mat-

ter drive a wage-earning family to the wall.’’? 395 U.S. at

341-42, As in Shapiro, the fundamental nature of the sub-

sistence interest led the Court to impose the strictest stand-

ards of fairness, standards which, in both cases, proved to

be insurmountable.

This same primitive and fundamental personal interest

is again threatened in the case before the Court today.

The Fifth and Fourteenth Amendments declare that no

person shall be deprived of life without due process of law.

While the due process provision has seen its greatest use

in the criminal area, the changing role of government de-

EE eR omer

mands that the scope of this constitutional Safeguard he

similarly adapted to meet threats newly posed to the Poor,

The era of the Elizabethan Poor Laws and the local care

of the poor has passed. Today it is the federal government,

along with the states, that has assumed the burden and the

responsibility of caring for the needy. More than nine

million persons, most of them children, now depend upon

the sometimes shaky hand of State for their mere survival,

And the number grows daily. Should that hand be arbi.

trarily or erroneously withdrawn from one still needy of

its aid, health and life may likewise pass.

Mr. Justice Brandeis, speaking years ago for this Court,

assured that the protections of due process were available

to check the State, whether it would deprive of life, “or

of all that makes life worth living.’’ N 9 Fung Hoy. White,

259 U. S. 276, 284 (1922). Public assistance benefits rep.

resent the foundation upon which life may go on. Surely

the poor are entitled to the same protection as the crimi-

nally accused. In both realms, the State must meet the

very highest standards of due process before it may suffer

an interest as precious as life to decline or perish.

C. The Recipient’s Constitutional Right to a Prior Trial.

Type Hearing Is Not Precluded by the ‘‘Legislative

vs. Adjudicative’’ Dichotomy, for in All Cases a Re.

cipient Aggrieved by the Agency’s Threat Poses Ques.

tions Historically and Functionally Addressed to Ad-

judication.

On numerous occasions this Court has declared that hear-

ings are required for judicial functions, but that when the

agency is embarked upon legislative tasks the absence of

notice and opportunity to be heard is not offensive to due

process. E.g., The Assigned Car Cases, 274 U. 8. 564, 582-83

(1927). The lesson is basically one of history. Bi-Metallic

_—

Investment Co. v. State Bd. of Equalization, 239 U. S. 441,

445 (1915). And with it amicus has no quarrel. The fact

that the Due Process Clauses have never been interpreted

to confer an enforceable right to appear before a legislative

body is acceptable when it is also recalled that from our

earliest history a citizen aggrieved by the application of a

legislative pronouncement, on the theory that as applied to

his estate it was offensive to the ‘‘law of the land’’ has

enjoyed a due process right to a judicial forum. See gen-

erally, Cooley, Constitutional Limitations, 352-53 (3d ed.

1874) (drawing upon the argument made by Daniel Web-

ster before this Court in Dartmouth College v. Woodward,

17 U.S. (4 Wheat.) 518 (1819), and collecting early federal

and state decisions).

Amicus contends that the dichotomy based upon agency

function does not cloud the right of an individual recipient

of assistance benefits to notice and a prior hearing in order

that he might challenge an ex parte agency threat to his

previously determined entitlement. In all such cases, the

recipient’s contest will pose questions historically and func-

tionally addressed to adjudication. This historical and func-

tional distinction was clearly drawn by Mr. Justice Holmes

speaking for this Court in Prentis v. Atlantic Coast Line

Co., 211 U. S. 210, 226 (1908) :

... A judicial inquiry investigates, declares and en-

forces liabilities as they stand on present or past facts

and under laws supposed already to exist. That is

its purpose and end. Legislation on the other hand

looks to the future and changes existing conditions by

making a new rule to be applied thereafter to all or

some part of those subject to its power.

Based upon this distinction Mr. Justice Frankfurter gave

guarded approval to a determinant reflecting function: ‘‘. ..

when decisions of administrative officers in execution of

legislation turn exclusively on considerations similar to

—

those on which the legislative body could itself have acted

summarily, notice and hearing may not be co

the Constitution.’ Joint Anti-Fascist Refugee Comm, y

McGrath, supra, 341 U. S. at 167 (emphasis added),

Measured by these guidelines, ‘‘adjudication”’ jg involved

in every facet of the following—a typical public assistanes

conflict :

Agency: ‘‘Mrs. Jones, it has come to our attention

that you have an adult male living in your home, Under

our rules your AFDC assistance grant must be reduced

by taking into account his earnings. Please be advised

that your November check will not be issued until this

adjustment has been made.’’

In response to this notice, Mrs. Jones requests a ‘‘ fair hear.

ing’’ at which, unrepresented by counsel, she raises the

following contentions:

Client: ‘‘The ‘man’ to which your notice has refer.

ence is my mentally retarded brother. He has no

money, and while he is around he is a drain on our

already inadequate grant. Besides, even if he were to

live with us permanently, for you to reduce the amount

of my children’s AFDC assistance is illegal.”’

Assuming that the local agency complies with current Fed.

eral Handbook directives and assists Mrs. Jones in “‘pre-

paring [her] case’’ (Part IV, § 6300(b)), the recipient’s

request for a hearing raises two types of issues, both dis-

tinctly ‘‘adjudicatory’’.

In the first instance, Mrs. Jones is contesting the fact

that the man found in her home presents the type of situa-

tion covered by the so-called ‘‘man in the house rule.”’ The

resolution of this factual dispute is clearly the historical

function of the courts, and when performed by administra-

tive bodies is inescapably ‘‘adjudicatory”’ in nature. Of

equal importance is the second issue .. . her constitutional

and statutory argument that in threatening her with the

A ry

man in the house rule the agency is seeking to destroy or

diminish her previously determined entitlement in a manner

ghich is offensive to law. Again, an interpretation of the

mandate of constitutional and statutory rules so as to make

“binding determinations which directly affect the legal

rights of individuals’’ involves an exercise of the judicial

‘on. and hence requires an application of those ‘‘pro-

cedures which have traditionally been associated with the

judicial process.”’ Hannah v. Larche, 363 U. 8. 420, 442

(1960). To deny that this challenge poses questions of an

“djudicatory”’ nature requires the assertion that histori-

cally and functionally such challenges have been determined

in the halls of Congress and the several state legislatures.

Such an absurd proposition finds no basis in history, and

is offensive to the basic notion of the separation of powers.

See generally, Cooley, Constitutional Limitations, supra, at

959.53. C.f., Crowell v. Benson, 285 U. S. 22, 56-7 (1932) ;

and, Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S.

987, 289 (1920).

The simple fact of the matter is that in the field of public

assistance administration neither state nor local agencies

engage in pure ‘‘rule making”’ activities. Thus, their deci-

sions never ‘‘turn exclusively on considerations similar to

those on which the legislative body could itself have acted

summarily... .’? Joint Anti-Fascist Refugee Comm., supra,

at 167. Rather, in a challenge to an existing assistance grant

(on any of the aforementioned grounds) the agency inquiry

“declares and enforces liabilities as they stand on present

or past facts and under laws supposedly already to exist.’’

Prentis, supra, 211 U. S. at 226 (emphasis added). Where

this function is the agency’s end, the command is clear that

judicial process must be the means. Hannah v. Larche,

supra, 363 U.S. at 442.

The accuracy of this characterization is reflected in the

current provisions of the Federal Handbook which define

—

the scope of the ‘fair hearing’’ to expressly include: «

sideration of the agency’s interpretation of the law, and the

reasonableness and equitableness of the Policies prom}.

gated under the law, if the claimant is aggrieved by their

application to his situation.’’ Handbook, Part IV, § 6309

(c)(2). Far from being an act of “‘agency grace”? amicus

contends that this provision of the Handbook represents a

valid recognition that, within the context of an individual

recipient’s case, the threat to an established grant preqj.

cated upon a formal or informal interpretation of the law

(both constitutional and statutory) represents a topic ripe

for ‘‘judicial determination.”’ Standing having been con-

ferred by ‘‘their application to his situation,’’ to accord the

recipient a ‘‘fair hearing’’ is to observe the requirements

of due process.

Where the recipient’s position takes the form of an ex.

clusive attack upon the legal validity of the rule under which

the agency is seeking to adversely affect his previous ep.

titlement (and amicus contends that this will rarely be the

case), he has a due process right to a ‘‘fair hearing.’’ The

final question is whether such a recipient is somehow less

entitled to a ‘‘prior hearing’’ than would be the case if his

resistance also took the form of a factual dispute. Garfield

v. Goldsby, supra, 211 U. S. at 262, suggests no relaxation

in the requirement that the ‘right to be heard’? take the

form of a prior proceeding. Equally dispositive is the ul-

deniable fact that the need of the recipient, that he should

not be summarily stripped of the necessities of physical

subsistence, is identical in both cases. Shapiro v. Thomp-

son, 394 U. S. 618, 627 ( 1969). Thus while the flexible norms

of due process might well be satisfied by a hearing in which

the reasonableness or equitableness of the agency’s inter.

pretation of the law was the subject of ‘‘argumentation”’

as opposed to a ‘‘trial-type’’ proceeding, amicus would con-

tend that it does not present the ‘‘extraordinary”’ situation

i which a deviation from the norm of a ‘‘prior hearing’’

is permissible. Sniadach v. Family Finance Corp., 395 U. S.

337, 339 ( 1969). See Part I-D, infra.

p, The Hearing to Which Welfare Recipients Are Con-

stitutionally Entitled Must Occur Before Benefits Are

Terminated, Suspended, Reduced or Otherwise With-

drawn.

“The laws of God and man both give the party an op-

portunity to make his defence, if he has any. I remem-

ber to have heard it observed by a very learned man

upon such an occasion, that even God himself did not

pass sentence upon Adam, before he was called upon

to make his defence. Adam (says God) where art

thout Hast thou not eaten of the tree, whereof I

commanded thee that thou shouldst not eat? And the

same question was put to Eve also.”’ The King v. The

Chancellor, Masters and Scholars of the University of

Cambridge, 1 Str. (K. B.) 557, 567; 93 Eng. Reports

698, 704 (1723) (Fortescue, J ,

The principle that one has a right to be heard before

he may be adversely harmed by the state is ‘‘[t]he funda-

mental requisite of due process of law . . .”’ Grannis v.

Ordean, 234 U. S. 385, 394 (1914), and has been deeply

woven into the fabric of our Anglo-American civilization

since the time of the Magna Charta. One of the earliest

American formulations of this fundamental constitutional

principle interpreted the due process provision of the New

York constitution, and was referred to by this Court in

Murray’s Lessee v. Hoboken Land and Improvement Co.,

59 U. S. [18 How.] 272, 280 (1855).

“The meaning of the section then seems to be, that

no member of the State shall be disfranchised, or de-

prived of any of his rights or privileges, unless the

matter shall be adjudged against him upon trial had

according to the course of the common law. It must be

ascertained judicially that he has forfeited his priy

ileges, or that some one else has a superior re to

the property he possesses, before either of them cay

be taken from him.’’ Taylor v. Porter, 4 Hill 140, ie

15 N. Y. Common Law Rpts. 773, 775 (N. Y, Supreme

Court, 1843). [emphasis added. ]

This basic principle has been articulated and enforced

this Court upon far too many occasions for there te be any

lingering doubt as to its central place in our constitutional

system of government.

In 1876, quoting from Justice Story’s opinion in Brad.

street v. Neptune Insurance Co., 3 F. Cas. 1184, 1187

(C. C. D. Mass. 1839), this Court stated that ‘It is a rue

. founded in the first principles of natural justice, that

a party shall have an opportunity to be heard in his de.

fence before bis property is condemned. . . .’? Windsor y.

McVeigh, 93 U. S. 274, 280 (1876. [emphasis added],

In 1895, in Winona d St. Peter Land Co. v. Minnesota,

159 U. S. 526, 537, the Court again articulated this due

process principle, collecting a number of the earlier an.

thorities.

‘*That rule is that a law authorizing the imposition of

a tax or assessment upon property according to its

value does not infringe that provision of the Fourteenth

Amendment to the Constitution, which declares that no

State shall deprive any person of property without due

process of law, if the owner has an opportunity to

question the validity or the amount of it either before

that emount is determined or in subsequent proceedings

for its collection. McMillen v. Anderson, 95 U. 8. 37;

Davidson v. New Orleans, 96 U. S. 97; Hagar v. Recla-

mation District, 111 U. S. 701; Spencer v. Merchant,

125 U. S. 345; Palmer v. McMahon, 133 U. S. 660; Lent

v. Tillson, 140 U. S. 316; Pittsburg, Cincinnati € E.

Railway v. Backus, 154 U. 8. 421.”’

—,

Several years later in another suit involving taxation, the

Court held that ‘‘due process of law requires that at some

stage of the proceedings before the tax becomes irrevo-

cably fixed, the taxpayer shall have an opportunity to be

heard...” Londoner v. Denver, 210 U. S. 373, 385 (1908)

[emphasis added]. That same year, this Court declared

that, ‘“The right to be heard before property is taken or

rights or privileges withdrawn, which have been previously

legally awarded, is of the essence of due process of law.”’

Garfield v. Goldsby, 211 U. S. 249, 262 (1908) [emphasis

added].

In Southern Railway Co. v. Virginia, 290 U. 8. 190, 199

(1933), a case challenging a state order requiring the rail-

road to construct an overpass, the Court held that, ‘‘Before

its property can be taken under the edict of an administra-

tive officer the appellant is entitled to a fair hearing on the

fundamental facts.’’ [Emphasis added. ]

A year later, in United States v. Illinois Cent. R.R., 291

UU. 8. 457, 463 (1934), this Court held that while the Inter-

state Commerce Commission could initiate a rate change

without formal proceedings, due process required ‘‘a full

and fair hearing before the order became operative.’’ [Em-

phasis added.] The principle was again reiterated several

years later in Morgan v. United States, 304 U. S. 1, 18-19

(1938) :

“Those who are brought into contest with the Govern-

ment in a quasi-judicial proceeding aimed at the con-

trol of their activities are entitled to be fairly advised

of what the Government proposes and to be heard

upon its proposals before it issues its final command.’’

[Emphasis added. ]

This Court in 1941 upheld a minimum wage order, stating

that “The demands of due process do not require a hearing,

at the initial stage or at any particular point or at more

than one point in an administrative proceeding so long as

the requisite hearing is held before the final order

effective.’ Opp Cotton Mills, Inc. v. Administrator, 319

U. S. 126, 152-53 (1941) (emphasis added). And more re.

cently, in Mullane v. Central Hanover Trust Co., 339 J. §,

306, 313 (1950), this Court again formulated the constity.

tional rule. ‘‘Many controversies have raged about the

cryptic and abstract words of the Due Process Clause but

there can be no doubt that at a minimum they require that

deprivation of life, liberty or property by adjudication be

preceded by notice and opportunity for hearing appropri-

ate to the nature of the case.’’ [Emphasis added. ]

The clearest and most helpful statement of the due

process norm is perhaps that of Mr. Justice Frankfurter in

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. 8,

123, 168 (1951) (concurring opinion) : ‘‘This Court is not

alone in recognizing that the right to be heard before being

condemned to suffer grievous loss of any kind, even though

it may not involve the stigma and hardships of a criminal

conviction, is a principle basic to our society.’’ [Emphasis

added.] Four other members of this Court adopted this

statement of the rule in Cafeteria and Restaurant Workers

v. McElroy, 367 U. S. 886, 901 (1961) (Brennan, J. dissent.

ing). ok

Only a few years ago, in a case upholding a father’s right

to a hearing before his natural child could be taken from

him by adoption, this Court observed that, ‘‘A fundamental

requirement of due process is ‘the opportunity to be heard.’

Grannis v. Ordean, 234 U. S. 385, 394. It is an opportunity

which must be granted at a meaningful time and in a mean-

ingful manner.’’ Armstrong v. Manzo, 380 U. S. 545, 552

(1965).

This Court’s most recent articulation of the constitu-

tional right to be heard before the government may ad-

versely affect one’s interests, was in Sniadach v. Family

Finance Corp., 395 U. S. 337 (1969), in which Wisconsin’s

prejudgment garnishment statute was held unconstitutional.

The Court, citing Mullane v. Central Hanover Trust Co.,

939 U. S. 306, 314 (1950), stated that ‘‘TIn the latter case

we said that the right to be heard ‘has little reality or worth

unless one is snformed that the matter is pending and can

choose for himself whether to . . . acquiesce or contest’.’’

995 U.S. at 339-40. Though the Court noted that ‘‘wages—

a specialized type of property’’ were involved in the case,

the analysis focussed much more centrally and meaning-

fully on the substantiality of the interest at stake. After

noting that ‘‘a prejudgment garnishment of the Wisconsin

type may as a practical matter drive a wage earning family

to the wall,” the Court had no difficulty in holding that

“absent notice and a prior hearing . . . this prejudgment

garnishment procedure violates the fundamental principles

of due process.’” 395 U.S. at 341-42.

The case before this Court today requires a similar con-

clusion. Whereas the effect of a prejudgment garnishment

of wages may be to «drive a wage earning family to the

wall,’’ the welfare recipient, even with the assistance he re-

ceives, finds himself already at the wall. And as the Court

has noted, ‘‘[t]his constitutional challenge cannot be an-

swered by the argument that public assistance benefits are

a ‘privilege’ and not a ‘right.’ *» Shapiro v. Thompson, 394

1. S. 618, 627 n.6 (1969). Rather, the critical factor must be

the nature of the interest involved. Amicus strongly con-

tends that the interest of the public welfare recipient, about

to be deprived of the bare means of subsistence, is as great,

if not greater than the similar plight of a family whose

wages are attached.

Nor is the case before this Court today one of the ‘‘rare

and isolated instances’? in which summary administrative

procedure is permissible. Joint Anti-Fascist Refugee Comm.

v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., con-

curring). In Sniadach, this Court noted that ‘s

procedure,”’ in which there is no opportunity for a hear;

before the harm occurs, will meet the requirements of due

process only in ‘‘extraordinary situations.’’ 395 J. S. at

339. The use of the summary process has been character.

ized by this Court as a ‘‘drastic procedure.” Fahey y,

Mallonee, 332 U. S. 245, 253 (1947). This Court has never

upheld the use of such a process where the sole interest of

the state was to protect its purse.

In fact, the instances in which this Court has found use

of the summary process to be constitutionally permissi-

ble are exceedingly rare. ‘‘Only the narrowest exceptions,

justified by history become part of the habits of opr

people or by obvious necessity, are tolerated.’’ Joint Anti.

Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 164-65

(1951) (Frankfurter, J., concurring). In a small nun.

ber of cases, deeply-rooted historical precedent has legiti-

mized use of a summary procedure. Thus, in Murray’s

Lessee v. Hoboken Land and Improvement Co., 59 U.S.

(18 How.) 272, 277 (1855), Springer v. United States, 102

U. S. 586 (1880), and Phillips v. Commissioner, 283 VU. §.

589 (1931), this Court approved the summary seizure of

property belonging to a debtor of the United States, on

the ground that ‘‘since the establishment of the English

monarchy,’’ there has always been ‘‘a summary method

for the recovery of debts due to the crown. .. .’’ 59 U.S.

(18 How.) at 277. In Lawton vy. Steele, 152 U. S. 133 (1894),

the Court approved the summary seizure of fish nets ille-

gally employed, under a statute permitting such abate.

ment of a public nuisance. In Ownbey v. Morgan, 256

U. S. 94 (1921), this Court sanctioned Delaware’s ex parte

foreign attachment law which had its origin in the Cus-

tom of London. In Cooke v. United States, 267 U. 8S. 517

(1925), the Court noted that contempts committed in open

court may be punished, as was the custom at common law,

a es

_—

summarily and without opportunity for a hearing. In

Cofin Bros. V- Bennett, 277 U. S. 29 (1928), the Court

rmitted the property of shareholders of an insolvent

bank to be summarily attached by the bank’s creditors.

Aside from these few instances in which historical cus-

tom has prevailed, this Court has permitted the sum-

mary procedure only in cases in which the delay occasioned

by a prior hearing would pose a serious and direct threat

to the health, safety or well-being of other individuals.

«Jf the contagion is spreading, or the harmful medicinal

preparation is being sold to the public, summary adminis-

trative action in advance of hearing is appropriate. . . -

Drastic administrative action is sometimes essential to take

care of problems that cannot be allowed to wait for the

completion of formal proceedings.”’ 1 K. Davis, Admin-

istrative Law Treatise, § 7.08, at 438 (1958). Thus, in

North American Cold Storage Co. v. City of Chicago, 211

U.S. 306 (1908), this Court upheld the summary seizure

and destruction of allegedly decayed poultry. In Yakus v.

United States, 321 U. S. 414 (1944) and Bowles v. Willing-

ham, 321 U. 8S. 503 (1944), the Court upheld summary

rice and rent regulations under the Emergency Price Con-

tral Act of 1942, on the ground that they were necessary

to prevent inflation under the ‘‘exigencies of wartime con-

ditions.’ 321 U. S. at 520. In Fahey v. Mallonee, 332

U.S. 245, 253 (1947), the Court upheld a conservator’s

summary take-over of an insolvent bank, the procedure

being justified by ‘the delicate nature of the institution

and the impossibility of preserving credit during an in-

vestigation. .. .’’ And, in Ewing v. Mytinger € Casselberry,

Inc., 339 U. S. 594 (1950), this Court allowed the Food

and Drug Administration to summarily seize allegedly mis-

labeled goods.

It clearly emerges from this analysis of the cases that

the government»! interests which have in the past been

found by this Court to justify summary action without

prior hearing are of an altogether different order than

the interest of the state in withdrawing, without hear;

‘‘the very means to subsist—food, shelter and Other neges.

sities of life.’’ Shapiro v. Thompson, 394 U. S. 618, 697

(1969). There is no debt owing to the Crown here. Nor

is there an emergency threat of harm to other individuals,

The state’s sole concern is the saving of revenye. Such

a justification for denying the fundamental due Processes

of law has never been recognized by this Court. It should

not be recognized for the first time today, in a case where

the private interests at stake have never been more vul.

nerable and deserving of this Court’s protection.

E. The Constitutional Due Process Hearing to Which the

Welfare Recipient Is Entitled Must Contain, at 2 Mini.

mum, Nine Basic Elements Recognized by This Court.

‘‘A fundamental requirement of due process is ‘the

opportunity to be heard.’ ... It is an opportunity

which must be granted at a meaningful time and in a

meaningful manner.”’

Armstrong v. Manzo, 380 U. S. 545, 552 (1965).

In thus speaking for this Court, Mr. Justice Stewart cap-

sulized centuries of Anglo-American theory and experi-

ence. As amicus has suggested in all but the most ex.

traordinary situations only a prior proceeding has been

deemed by this Court to satisfy the requirement of a

‘‘meaningful time.’? It now remains to consider the

‘‘meaningful manner.”’

It has already been established (Part I-C, supra) that

individual assistance cases involve agency ‘‘adjudication”

as opposed to ‘‘rule making.’’ Hence in the case at bar

it is imperative that [an agency administering a

program of public assistance] use the procedures which

have traditionally been associated with the judicial

sé

—

p ss.’ Hannah v. Larche, 363 U. S. 420, 442 (1960).

Yet to establish that the procedures must be those of a

“judicial” process is only to narrow the inquiry. An

answer must evolve from a balance between the compet-

ing interests presented by the government goal and the

individual citizen whose life, liberty, or property the state

would seek to affect. In striking this balance, this Court

has recognized that when faced with a timely objection

from the proposed citizen-target, a meaningful respect

for that individual’s dignity requires that the government

carry the burden of justification as to both the fairness of

its methods and the validity of its proposed result. In

thus testing the ‘‘hurt complained of’’ against ‘‘the good

accomplished, ”’ this Court has varied the weight of the

government’s burden in direct ratio to the gravity of the

citizen’s threatened interest. Joint Anti-Fascist Refugee

Comm. v. McGrath, supra, 341 U. S. at 163. In light of

the primitive human stake which a welfare recipient risks

in any confrontation with the administering agency, amicus

now contends that the ‘fair hearing’? must reflect strict

adherence to those elements of ‘‘fundamental fair play’’

which this Court has identified as essential to the due

process of law.

Were this an area of administrative law lacking in doc-

umented experience, amicus would concur in the desira-

bility of an opinion in which this Court limited its obser-

vations to the broad outlines of the elements of funda-

mental fairness here required. Happily, this is not the

case.

The decisions of this Court have identified nine ele-

ments of basic ‘‘fair play’’ the absence of which, indi-

vidually or in combination, give rise to a viable claim that

due process of law has not been observed.* Their appli-

4. These elements are identified and analyzed in Burrus & Fess-

ler, Constitutional Due Process Hearing Requirements in the Ad-

ministration of Public Assistance: The District of Columbia Ex-

perience, 16 Am. U. L. Rev. 199, 217-31 (1967).

—

cation in the field of public assistance administration jg

not an abstract exercise. In passing upon challenges to

statutory programs, this Court has frequently displayeq

‘“‘great deference to the interpretation given the statute

by the officers or agency charged with its administration,”

Udall v. Tallman, 380 U. S. 1, 16 (1965) (collecting authori.

ties). To this end, amicus has reviewed the Provisions

of the Handbook of Public Assistance Administration

which is promulgated by the Secretary of Health, Educa.

tion and Welfare pursuant to authority conferred by 42

U.S. C. A. § 1302 (1964). From that record of accumu.

lated experience in dealing with the economically and edy.

cationally disadvantaged, amicus finds clear Departmenta]

recognition of the procedural norms which, in other cop.

texts, have been articulated by this Court. All should cop.

cede that the norms of due process are flexible (Hannah

v. Larche, supra, 363 U.S. at 442), and that they “cannot

... be tested by mere generalities or sentiments abstractly

appealing.’’ Joint Anti-Fascist Refugee Comm. vy. McGrath,

supra, 341 U. S. at 163. Thus it is through a dual ap.

alysis of judicial decisions and distilled administrative

experience that amicus will contend that strict observance

of normative fair play on this primitive plateau of human

need is not a matter of administrative grace. Rather, such

procedures are a measured response to the demands of due

process binding upon appellant in his administration of

both categorical and non-categorical assistance programs.

For as was stated by this Court many years ago: ‘The

right of a citizen to due process of law must rest upon a

basis more substantial than favor or discretion.’ Roller y.

Holly, 176 U. S. 398, 409 (1900).

Though these administratively defined elements of the

hearing for the most part coincide with those elements

5. Provisions of the Federal Handbook were considered by this

Court in King v. Smith, 392 U. S. 309, 317 (1968).

hitherto found by this Court to be constitutionally re-

quired, the constitutional inquiry is still essential. The

HE. W. Handbook nowhere suggests that the hearing

must occur before entitlement is impaired. The elements

set out in the Handbook for the fair hearing are therefore

not binding upon the state at the prior hearing, should

the state adopt, as did New York, a dual hearing system.

Nor would the new H. E.W. regulations, discussed in

Part Il, infra, appear to prohibit the state from adopt-

ing such an abbreviated prior hearing. Thus it is im-

perative that this Court identify the constitutionally re-

quired elements which must characterize the hearing the

recipient is entitled to receive before his subsistence bene-

fits may be impaired.

1. Nortce: Within the context of public assistance ad-

ministration, the current Handbook provisions require that

notice of the ex parte agency challenge be given in writing

to the recipient. This notice must affirm earlier oral in-

formation that the recipient has a right to receive a ‘‘fair

hearing,”’ and that if requested, such a hearing shall be

conducted at a time, date, and place convenient to the claim-

ant. Handbook, Part IV, §§6200(g¢) and 6300(j) (as

amended by Handbook Transmittal No. 140 (Feb. 8, 1968)).

Finally, ‘‘{nJotice is given in writing with adequate pre-

liminary information about the hearing procedure neces-

sary for his preparation for the hearing and effective

presentation of this case.’’ Id., § 6300(1).

Assuming that this final provision refers to a require-

ment that the agency’s written notice contain sufficient

description of the charges being leveled so that the recip-

ient is fairly apprised of the nature of the case he must

contest, these provisions of the Handbook would seem to

satisfy the due process requirements inherent in the con-

cept of notice and apprisal as articulated by this Court.

See, Willner v. Committee on Character & Fitness, 373

—

U. S. 96, 107-08 (1963) (Goldberg, J., concurring) ; Hanna

v. Larche, 363 U. S. 420, 441 (1960); Greene y. McElroy

360 U. S. 474, 496-97 (1959) ; Morgan v. United States, 3

U.S. 1, 17-19 (1938) ; and, Roller v. Holly, 176 U. g. 395

409 (1900).

Concerning the element of time, the H. E. W. regulatio

sets no arbitrary limit. Amicus believes this policy to }

best suited for an administration that recognizes depen

ing upon the nature of the charges, the situation of th

recipient, his location flexibility is required. It js suff

cient for this Court to rearticulate that ‘‘the requiremer

of notice would be of no value whatever, unless such notic

were reasonable and adequate for the purpose.” Rolle

v. Holly, supra, at 409.

2. Discovery: Obviously related to the principle ¢

notice is the requirement of some degree of pre-hearin

discovery. The current Handbook regulations provid

that: ‘‘The claimant or his representative will have th

opportunity (1) to examine all documents and records use

at the hearing. . . .’’ Part IV, § 6200(i)(1). This ters

provision is the subject of elaboration in the section 0

‘Criteria for the Administration of the [conformin

State] Plans. There we find it made clear that the clain

ant or his representative must have ‘‘adequate opportunit

to examine material that will be introduced as evidenc

prior to the hearing as well as during the hearing. . . .

Part IV, § 6300(n). And, finally that any material whic

is not part of the agency record, or is held as ‘‘ confidential:

and thus not something which the claimant has an “oy

portunity to hear or see’’ may not be ‘‘made a part ¢

the hearing record or used in a decision on the appeal. Th

hearing officer does not review the case record, or othe

material prior to the hearing unless such material is mad

available to the claimant or his representative.’’ Id

$ 6300(0).

Assuming that this right of prior inspection is accorded

the recipient or his representative at a point in time suff-

cient to permit a responsive case, the Handbook provisions

appear to be a satisfactory response to the due process

requirement that the recipient be accorded an opportunity

“to know the claims of the opposing party. . . .’’ Morgan

y United States, 304 U. S. 1, 18 (1938).

3. RicHt of COUNSEL: By definition, the administra-

tion of public assistance benefits takes place among a class

of society’s least educated and most disadvantaged citizens.

When it is recalled that the recipient’s stake in a contro-

versy with the agency assumes the gravity of his very

means of physical subsistence, Shapiro v. Thompson, supra,

394 U. S. at 627, the presence of the guiding hand of coun-

se] as a rudiment of fundamental fair play would seem

self-evident.

In this area, an analysis of the Handbook regulations

must carefully distinguish between those presently enforced

and those officially proposed for eventual enforcement.

Part IV, §6200(f) currently provides that the notice to

the recipient, which must be given at the time of any agency

action affecting his claim, inform him ‘‘that he may be

represented by others including legai counsel; and of any

provision for payment of legal fees by the agency.’’ Part

IV, : 6500(c)(3) makes it clear that should the state plan

include provision for legal services, federal financial par-

ticipation is available in sharing such cost. Yet, as of this

writing, no provision of the Handbook requires the states

to make such services available. On November 30, 1968,

the Department announced in the Federal Register a pro-

posed new regulation which would, inter alia, require that

in all categorical assistance programs, ‘‘The services of

lawyers will be made available to welfare clients who desire

them in fair hearings.’? Proposed H. E. W. Reg., 33 Fed.

Reg. 17853-54 (Nov. 30, 1968). The original target imple-

mentation date for the new regulation, July 1, 1969, was

put back to October 1, 1969, by the new Administration,

Otherwise, the new regulation was confirmed. See 34 Fed

Reg. 1144 (Jan. 24, 1969). Amicus now understands that

the most recent Departmental policy is to push the pro.

posed implementation date back once again, this time unt]

July 1, 1970.*

We begin the constitutional analysis of these regulations

with In re Groban, 352 U. 8. 330, 332 (1957), in which this

Court acknowledged that a party under scrutiny in an

adjudicatory administrative proceeding has a due Process

right to be ‘“‘heard through his own counsel.”’ Yet analysis

cannot end on this left-handed note unless this class of

indigents is to be the victim of an un-ending joke. To gay

that an indigent recipient of public assistance has a “due

process right’’ to speak through her own attorney at the

‘‘fair hearing’’ is as comforting as a solemn declaration

that she has a constitutional right to appear at that hearing

swathed in mink. Amicus contends that the time has come

for this Court to carry the lesson of Gideon v. Waimorighi,

372 U. S. 335 (1963), yet another limited step by declaring

that in the field of public assistance administration the

substantial identity of the citizen’s stake in the proceedings

requires a like regard for his need of legal counsel. In

Gideon this Court articulated a basic charter of protection

for citizens faced with loss of life, liberty, or property in

criminal proceedings. In the case at bar, these same in-

6. Further provisions of the currently enforced Handbook reg-,

ulations make it clear that, should the recipient so desire, he may

be represented. at the ‘‘fair hearing’’ by a relative or friend. In

an express recognition of the value of the ‘‘skill and knowledge of

the legal profession in these [hearing] matters’’, the states are

urged to make such provision. They are not required to do so,

notwithstanding the availability of federal funds to partially de-

fray the costs of such representation. Part IV, § 6400(a) (as

amended by Handbook Transmittal No. 140 (Feb. 8, 1968)). And

see, Id., § 6300(k).

—

terests are before this Court. Indeed, the intensity of the

loss may be even more pronounced. In the criminal area

a frequent danger is the imposition of confinement. In the

public assistance field it is often expulsion from the most

primitive shelter. The Eighth Amendment would be at

once offended if in the confinement situation there was a

denial of adequate food or medical attention. In the waste

basket for crumpled lives that claims too many of our

homeless citizens we have thus far failed to exhibit a simi-

lar concern.

A recognition that our civil and criminal jurisprudence

do not exist in separate air tight containers has had dis-

tinguished spokesmen in the history of this Court. ‘‘[T]he

right to be heard before being condemned to suffer griev-

ous loss of any kind, even though it may not involve the

stigma and hardships of a criminal conviction, is a prin-

ciple basie to our society.”’ Jowmt Anti-Fascist Refugee

Comm. v. McGrath, 341 U. S. at 168 (Frankfurter, J., con-

curring) (emphasis added). In Ng Fung Ho v. White, 259

U. S. 276, 284 (1922), Mr. Justice Brandeis, speaking for

a unanimous Court, recognized that in an alien deporta-

tion case the individual was threatened with a possible

“Joss of both property and life; or of all that makes life

worth living.’? Such a toll could not be exacted save by

compliance with the norms of fair play inherent in the

concept of judicial due process.

Unlike the field of criminal justice, the timing of a right

to counsel in the context of public assistance administra-

tion should not prove troublesome. Amicus contends that

when the agency serves notice of its ex parte challenge, the

proceeding has reached an ‘‘accusatory state,’’ and the

recipient’s right to legal assistance ripens so that he may

have professional assistance in assessing the agency’s no-

tice and in utilizing his right of discovery in the prepara-

—ay

tion of a responsive case. Cf., Escobedo vy. Illinois, 37

U. S. 478, 492 (1964).

4. Ora Hearne: While a central issue in the trial of

this case below, tie right of a welfare claimant to present

his contentions orally is a basic assumption of the Hand.

book regulations. Part IV, § 6400(a) (as amended by

Handbook Transmittal No. 140 (Feb. 8, 1968)), details

the rights of the welfare claimant to present “his case in

any way he desires. Some will wish to tell their story in

their own way, some will desire to have a relative or friend

present the evidence for them, and still others wil] want

to be represented by legal counsel. . . . The hearing js

conducted in an informal rather than a formal court-type

procedure in order to serve the best interests of the claim.

ant; however, the hearing is to be subject to the require.

ments of due process.’’ See also Part IV, gg 6200(i) (5)

and 6300(n).

The legal correctness of the Handbook position, and the

decision of the court below, may be demonstrated by ref-

erence to the decision of this Court in Londoner y. Denver,

210 U. S. 373, 386 (1908). In tnat parent case this Court

declared: ‘‘{A] hearing in its very essence demands that

he who is entitled to it shall have the right to support his

allegations by argument however brief, and, if need be, by

proof, however informal.’’ The point was emphatically

stated in Stardard Airlines v. C. A. B., 177 F. 2d 18, 21

(D. C. Cir. 1949) : ‘*[I]n our jurisprudence an opportunity

to present contentions orally, with whatever advantages

that method of presentation has, is one of the rudiments of

the fair play required when property is being taken or

destroyed.”’

do. CONFRONTATION anD Cross-ExaminatTion: The ele.

ments of confrontation and cross-examination go to the

very heart of adjudicative procedures. The provisions of

the Handbook expressly declare that in addition to a right

to examine all documents and records used at the hearing,

the welfare claimant or his representative (be he lay or

professional ) shall be afforded an opportunity to ‘‘ques-

tion or refute any testimony or evidence.’’ Part IV,

s 6200(i) (6). Section 6300(n) reinforces this requirement

by declaring that: ‘‘The claimant or his representative

{must be afforded] adequate opportunity to examine ma-

terial that will be introduced as evidence prior to the hear-

ing as well as during the hearing, to give all the evidence

on points at issue he believes necessary without undue in-

terference, to ask for substantiation of any statements

made by others, and to present evidence in rebuttal.’’ The

integrity of these attempts to insure the welfare claimant

an opportunity to know, to confron:, and to test the adverse

evidence and witnesses which the agency proposes to use

against him is insured by a final provision that evidence

which the claimant has ‘‘not [had’ an opportunity to hear

or see is not [to be] made a part of the hearing record or

used in the decision on the appedl.”’ Id., § 6300(0) (em-

phasis added).

Such stringent protection is in eccord with historical ex-

perience and the decisions of this Vourt. That the concept

of the faceless informer is contrary to our basic notions of

“fair play’? is easily documented. As early as 100 A. D.,

the Roman Emperor Trajan admonished Pliny the Younger

that; ‘‘Anonymous information ought not to be received

in any sort of prosecution. It is introducing a very dan-

gerous precedent, and is quite foreign to the spirit of our

age.’ 9 Harvard Classics, 428 (quoted in Carlson v.

Landon, 342 U. S. 524, 552 (1952) (Black, J., dissenting).

This Court has been no more hospitable. In Greene v.

McElroy, 360 U.S. 474, 496 (1959):

Certain principles have remained relatively immu-

table in our jurisprudence. One of these is that where

government action seriously injures an individual, and

the reasonableness of the action depends on faet find.

ings, the evidence used to prove the Governments case

must be disclosed to the individual so that he has

opportunity to show that it is untrue. While this i

important in the case of documentary evidence, it jg

even more important where the evidence consists of

the testimony of individuals whose memory might he

faulty or who, in fact, might be perjurers or persons

motivated by malice, vindictiveness, intolerance, preju-

dice, or jealousy. We have formalized these protections

in the requirements of confrortation and cross-exani.

nation. They have ancient roots... .

In addition to the authorities collected in Greene y. McEl.

roy, supra at 497, see Peters v. Hobby, 349 U. S. 331, 35)

(1955) (Douglas, J., concurring) ; Gonzales v. Freeman, 334

F. 2d 570, 578 (D.C. Cir. 1964); and, Rios v. Hackney, 294

F. Supp. 885 (N.D. Tex. 1967) (a welfare case turning on

this precise point).

6. Ricutr to Present Evipence anp Make Arcumenr:

The provisions in the Handbook which guarantee to the

welfare client or his representative the opportunity to

‘*give all the evidence on points at issue he believes neces.

sary without undue interference,’’ and ‘‘to advance any

arguments without undue interference’’ have already been

reviewed. Part IV, §§ 6300(n), and 6200(i)(5). In their

combined effect, they guarantee to the welfare client the

essence of an adjudicatory hearing.

Again, the decision of this Court in Londoner v. Denver,

210 U. S. 373, 386 (1908), stands for the proposition that in

according the welfare claimant the rights to present evi-

dence and make oral argument, the Department is not act-

ing out of discretion or grace, but is complying with the

requirements of procedural due process. Esteban v. Central

Missouri State College, 277 F. Supp. 649, 651 (W.D. Mo.

1967).

—

7, ImpapTiaL TRIBUNAL: The Handbook provisions con-

tain no fewer than five distinct provisions designed to in-

sure to the welfare claimant that his cause was heard before

an impartial official ; and, when requested, the appeal

processed by an impartial appeals authority. Part IV,

§ 6200(d) requires that all state plans qualifying for an in-

fusion of federal funds shall insure that ‘‘hearings will be

conducted by an impartial official (or officials) of the State

agency.”” As amplified in the sections on criteria for ad-

ministration of state plans, the ‘impartial official’’ is de-

nominated as an official of the state agency who is respon-

sible for conducting the hearing, and who ‘‘has not been

involved in any way with the action in question.’’ Id.,

§6300(h). The point is again made in the section officially

interpreting the requirements of section 6200. ‘‘The per-

son conducting the hearing shall not have been connected

in any way with previous actions or decisions on which the

appeal is made.’’ Id., § 6400(c). Where an appeal is taken

from the result of a ‘‘fair hearing’’ to the State hearing

review authority, the Handbook regulations are insistent

that that authority, too, should be ‘‘impartial.’’ Again,

“The hearing authority shall not have been directly con-

nected with the agency action about which the claimant is

appealing... .”? Id., §6400(f). And see Id., § 6300(g).

The requirements laid down by this Court would seem

satisfied by the aforementioned regulations. Having begun

with the proposition that the Due Process Clauses forbid

atrial before a judge who has a direct, personal, pecuniary

interest in the outcome (Tumey v. Ohio, 273 U. S. 510

(1927)), this Court refused to hold partial a hearing officer

merely on the ground that he was affiliated with the adminis-

trative body in question. F.T.C. v. Cement Institute, 333

U.S. 683 (1948). The regulation, excluding as impartial an

oficial who had a prior contact with the decision under

review, is mandated by the decision of this Court In re

—uy

Murchinson, 349 U. S. 133 (1955), which forbids the Practice

of any official sitting in judgment as to the Propriety of his

own actions or decisions.

8. Decision on THE Recorp: All of the above-mentioned

procedural protections are easily circumvented unless the

hearing officer is restricted in his decision to the record

developed in a truly ‘‘fair hearing.’’ Part IV, § 6300(0) has

already been reviewed. Suffice it to recall at this Point that

this provision of the Handbook excludes from the hearing

record all evidence and witnesses which the claimant has not

had ‘‘an opportunity to hear or see... .” Section 6200(1)

declares: ‘‘The hearing officer’s recommendations shall be

based exclusively on evidence and other material introduced

at the hearing. The verbatim transcript of testimony and

exhibits, or an official report containing the substance of

what transpired at the hearing . . . will constitute the ex.

clusive record for decision by the hearing authority and

will be available to the claimant at a place accessible to

him or his representative at any reasonable time.” (As

amended by Handbook Transmittal No. 140 (Feb. 8, 1968).)

[Emphasis added. ]

Such a safeguard is consonant with the leading pro-

nouncement by this Court requiring decisions to be based

exclusively upon the record developed at the ‘fair hear.

ing’’. In Ohio Bell Telephone Co. v. Public Utilities

Comm’n. of Ohio, 301 U. S. 292, 300-04 (1937), this Court

held that reliance on tax values and other materials which

had not been introduced into evidence ‘‘constituted a denial

of due process.’? The Court observed: ‘‘The fundamentals

of a trial were denied to the appellant when rates previ-

ously collected were ordered to be refunded upon the

strength of evidential facts not spread upon the record.

.-. This is not the fair hearing essential to due process. It

is condemnation without trial.’’ 301 U. S. at 300. This point

was placed in perspective along with the other elements

of “fair play” by this Court in 1.C.C. v. Louisville & Nash-

ville R. Co., 227 U.S. 88, 93-94 (1913) :

_, All parties must be fully apprised of the evidence

submitted or to be considered, and must be given oppor-

tunity to cross-examine witnesses, to inspect documents

and to offer evidence in explanation or rebuttal. In no

other way can a party maintain its rights or make its

defense. In no other way can it test the sufficiency of

the facts to support the finding; for otherwise, even

though it appeared that the order was without evi-

dence, the manifest deficiency could always be ex-

plained on the theory that the Commission had before

it extraneous, unknown but presumptively sufficient

information to support the finding. (Emphasis added).

Finally, the requirement that decisions be upon the record,

including the necessity of a statement of findings of fact

and conclusions of law, reflects the decision of this Court

in Wichita R. & Light Co. v. Public Util. Comm’n. of Ke

sas, 260 U. S. 48, 57-59 (1922).

9, Jupiciat Review: This final element is included as

an ‘insurance policy’’ that all the others will be observed,

or failing their observance, that a judicial remedy will be

provided to save the citizen from the imposition of arbi-

trary or capricious behavior. And yet it is at this juncture

that the Handbook regulations cease to be of effective as-

sistance. Part IV, § 6400(i) suggests no more than that the

availability of judicial review will depend upon the laws

of the individual states. Amicus does not find the law to

be thus settled by this Court.

With respect to questions of ‘‘eonstitutional fact,’’ the

judicial power of the courts can never be ousted. Ohto

Valley Water Co. v. Ben Avon Borough, 253 U. 8. 287, 291

(1920). If the inherent power of review arising from the

constitutional separation of powers extends to a de novo

consideration of the questions of law, it may also have

considerable sweep as to questions of fact. This has been

}

recognized as being true where a citizen’s “‘fundaments|

rights’’ hang in the balance. In Crowell y, Benson, 95

U. S. 22, 56-57 (1932), this Court framed the question as

follows:

... [W]hether the Congress may substitute for consti.

tutional courts, in which the judicial power of the

United States is vested, an administrative agency .

for the final determination of the existence of the facts

upon which the enforcement of the constitutional Tights

of the citizen depend. The recognition of the utility and

convenience of administrative agencies for the investi

gation and finding of facts within their proper prov.

ince, and the support of their authorized action, does

not require the conclusion that there is no limitation

of their use, and that the Congress could completely

oust the courts of all determinations of fact by vesting

the authority to make them with finality in its ow

instrumentalities or in the Executive Department. That

would be to sap the judicial power as it exists under

the Federal Constitution, and to establish a govern.

ment of a bureaucratic character alien to our system,

whenever fundamental rights depend, as not infre.

quently they do depend, upon the facts, and finality as

to facts becomes in effect finality in law.

And see, Stark v. Wickard, 321 U. S. 288, 309-316 (1944),

Where, as in the case at bar, the citizen’s interest trap.

scends the ‘‘fundamental’’ and assumes the most primitive

posture, this Court should be loath to see any erosion upon

the ‘‘inherent review power’’ of the judiciary.

—

1. THE NEW H.E.W. REGULATIONS CANNOT SERVE

AS THE BASIS FOR A NON-CONSTITUTIONAL RESO-

LUTION OF THIS CASE, AND ARE UNCONSTITUTIONAL

ON THEIR FACE.

A. The H.E. W. Regulations Cannot Serve as the Basis

for the Court’s Resolving This Case in a Non-Consti-

tutional Manner.

The Department of Health, Education and Welfare has

recently promulgated regulations which will supersede,

in the categorical assistance programs, the New York fair

hearing regulations found unconstitutional by the three-

judge district court below. These new regulations pro-

vide, in pertinent part, as follows:

“Effective October 1, 1969, a State plan for OAA,

AFDC, APTD, AABD, or MA under the Social Secu-

rity Act must provide that:

(1) When a fair hearing is requested because

of termination or reduction of assistance, involv-

ing an issue of fact, or of judgment relating to the

individual case, between the agency and the ap-

pellant, assistance will be continued during the

period of the appeal and through the end of the

month in which the final decision on the fair hear-

ing is reached. (If assistance has been terminated

prior to timely request for fair hearing, assist-

ance will be reinstated.) Where delays are occa-

sioned during the period of the appeal, assistance

will be continued if the delay is at the instance of

the agency or because of illness of the claimant

or for other essential reasons. To the extent

that there are other delays at the request of the

claimant the agency may but is not required to

continue assistance.’’ 34 Fed. Reg. 1144 (Janu-

ary 24, 1969).

As of this writing, these regulations are binding upon

the states October 1, 1969. However, amicus has reason

to believe that H.E.W. will delay their im

until July 1, 1970. Whichever the case,

plementation

these proposeg

regulations may not serve as the basis for a non-constitn.

tional resolution of this case.

If the proposed regulations do not go into effect until

July 1, 1970, the present federal regulations, which say

nothing about the prior hearing (Handbook, Pt. IV, ch

6000), and the current New York regulations are con.

trolling. Both sets of regulations are unconstitutional,

If, on the other hand, implementation of the H. EW.

regulations is not delayed, or if the Court should find

them to be nevertheless operative, it would be necessary

to rule on them as law. ‘‘A change in the law between a

nisi prius and an appellate decision requires the appellate

court to apply the changed law.’’ Ziffrin, Inc. v. United

States, 318 U.S. 73, 78 (1943). The Court has recently

held that this principle ‘‘applies with equal force where the

change is made by an administrative agency acting pur.

suant to legislative authorization.’”’ Thorpe y. Housing

Authority of Durham, 393 U.S. 268, 282 (1969). Thus,

as to the categorical assistance programs, it would be the

new H.E.W. regulations, rather than the to-be-obsolete

New York standards, which the Court would have to meas.

ure against the strictures of constitutional due process,

In such a case, it would still be improper for this Court

to resolve the case on the basis of the new regulations,

This is so for several reasons.

Six of the original and intervening plaintiffs in this case

are recipients of local general assistance, for which no

federal funds are provided. Kelly v. Wyman, 294 F. Supp.

893, 902 (S. D. N. Y., 1968). The Social Security Act, and

the regulations promulgated by the Department of Health,

Education and Welfare pursuant to it, do not reach such

purely local programs. Thus, the H.E. W. regulations

involved in this case have no binding effect upon the plain-

tiffs who are recipients of general assistance. As to them,

itis necessary for this Court to reach constitutional grounds

of decision.

Furthermore, though this case may bear some super-

ficial resemblance to that presented the Court in Thorpe

y, Housing Authority of Durham, supra, the issues pre-

sented here cannot be disposed of in a manner analogous

to Thorpe. The question presented to the Court in that

case was Whether a tenant in a federally assisted housing

project could be evicted without first being given notice

of the reasons for his eviction, and some opportunity to

reply to the evicting authority. While the case was pend-

ing before this Court, H.U.D. issued a circular which

imposed a mandatory requirement upon all housing au-

thorities to inform the tenant ‘‘‘in a private conference

or other appropriate manner’ of the reasons for eviction,

and give him ‘an opportunity to make such reply or ex-

planation as he may wish’.’’ 393 U. S. at 272-73. Given this

H.U.D. circular, the Court found it unnecessary to reach

the constitutional merits of the case, declining to consider

whether the H.U. D. regulations would provide the peti-

tioner with a hearing consonant with the requirements of

due process. The reasons for the Court’s refusal to reach

the constitutional merits in Thorpe sharply distinguish it

from the case now before the Court.

There was nothing in the H. U. D. circular which would

have prevented the local authority from giving a tenant

a full due process hearing prior to eviction. In contrast,

the H. E. W. regulations involved in this case are, on their

face, inconsistent with the requirements of due process.

But even more critical is the fact that the Court in Thorpe

recognized that in the case of a person about to be evicted

from public housing, there need be no due process hear-

ing before the housing authority, so long as the tenant

—

has been given notice of the reasons for the proposed e

tion. ‘‘Moreover, even if the Authority does not |

vide such a hearing, we have no reason to believe |

once petitioner is told the reasons for her eviction

cannot effectively challenge their legal sufficiency in w)

ever eviction proceedings may be brought in the Ni

Carolina courts.’’ 393 U.S. at 284. The fact that th

is opportunity for such de novo judicial review before

administrative action takes effect removes the const

tional necessity for a prior hearing before the ager

Nickey v. Mississippi, 292 U. S. 393, 396 (1934), and cles

differenciates the plight of the public housing tenant f;

that of the welfare recipient. There is no alternative

portunity for de novo judicial review before welfare

withdrawn, and so the constitutional requirement of ,

process calls for a trial-type administrative hearing

fore the welfare department may reduce or withd

assistance.

For the reasons which will be articulated below, ami

submits that the regulations promulgated by H.E.

compound rather than obviate the necessity of the Cow

reaching the constitutional merits of this case. Oth

wise, amicus fears that the regulations will serve as

basis for the unconstitutional deprivation of the rig

of welfare recipients in all of the fifty states.

a a Oe yg

p, The H.E. W. Regulations Are Inconsistent With the

ental Principles of Due Process and Are There-

by Unconstitutional.

1, The Regulations Promulgated by H.E. W. Permit and En-

courage the States to ‘‘Suspend’’ Assistance Without Af-

fording an Opportunity for a Prior Hearing.

The H. E. W. regulations state, in part, that:

“When a fair hearing is requested because of termi-

nation or reduction of assistance, involving an issue

of fact, or of judgment relating to the individual case,

between the agency and the appellant, assistance will

be continued during the period of the appeal... .”’

94 Fed. Reg. 1144 (Jan. 24, 1969) (emphasis added).

By confining the requirement that assistance be contin-

ned during the hearing process to merely terminations and

reductions of assistance, the H. E. W. regulations permit

and encourage the states to continue the practice of with-

drawing public assistance without first affording an oppor-

tunity to be heard.

In administering the categorical assistance programs,

both H. E. W. and the states have long distinguished be-

tween ‘‘termination’’ of benefits, and their ‘‘suspension.”’

Termination or discontinuance of benefits refers to the

permanent withdrawal of assistance, based upon an agency

determination that the recipient is no longer eligible. In

contrast, the ‘‘suspension’’ of benefits refers to the tem-

porary withdrawal of assistance, usually when the agency

‘s uncertain as to the recipient’s continuing eligibility;

benefits remain suspended until the question of eligibility

is resolved, and the recipient is then either reinstated or

terminated. Thus, New York regulations have provided

that “suspension shall mean that all public assistance in

the present program is stopped for a temporary period,”’

and explain that ‘‘Public Assistance payments may be sus-

—y

pended under the following circumstances: » +» (d) con.

tinuing eligibility is questionable and under investigation,»

N. Y. Official Compilation of Codes, Rules and ;

tit. 18, ch. II, § 351.22(e) (3). This distinction between

termination or discontinuance, on the one hand, and gus.

pension on the other, has been employed by many s

including not only New York, but also Arizona,’ Connegt.

cut,* Delaware,® Ilinois,” and Mississippi." The distine.

tion is also recognized by H. E. W., for in its own regula.

tions, specifying those agency actions with respect to which

an aggrieved recipient may request a fair hearing, H. EB. W.

distinctly lists two such actions as “‘suspension or discon.

tinuance of assistance in whole or in part... .’’ Hand

Pt. IV, § 6300(c)(1) (emphasis added). Thus, in the ad-

ministration of welfare, clear distinctions are drawn be.

tween the suspension of assistance, and its more permanent

withdrawal. Against the background of this administrative

practice, the omission of suspensions from the H.E. W.

regulation becomes critical.

If the States are not required to continue assistance in

both cases of proposed terminations and suspensions, any

such regulation seeking to guarantee the constitutional

rights of recipients will be thoroughly emasculated, as has

occurred recently in the state of Mississippi. Williams y.

Gandy, Civ. No. GC 6728 (N. D. Miss., filed June 9, 1967),

was one of the earliest challenges to the practice of with-

drawing assistance without affording opportunity for a

prior trial-type hearing. The suit was settled when Mis-

7. ARS § 46-2114.

8. Conn. State Welfare Dept., Manual: Social Service Policies

—Public Assistance § 370.3(A).

9. Del. Code Ann., tit. 31, § 508 (Supp. 1965).

10. Ill. Dept. of Public Welfare, Manual of Categorical Assist-

ance, ch. 8200.

11. 3 Miss. Dept. of Public Welfare, Policies & Procedures for

Administration of Public Assistance 7220-21.

sissippi agreed to promulgate what is one of the most lib-

oral fait hearing regulations in the country. These regula-

tions give the recipient 20 days in which to request a fair

hearing from a proposed termination of assistance. If

within this period the recipient makes a request for a

fair hearing, his grant will be continued until the hearing

has been held and a decision is reached. 3 Miss. Dept.

of Public Welfare, Policies and Procedures for Adminis-

tration of Public Assistance, 6101-03; State Dept. of Public

Welfare, Bulletin No. 1335 (April 15, 1968). However,

these same regulations refer separately to ‘‘termination’’

of the grant, as distinct from ‘‘changes in the amount of

the grant,”” ‘«syspension,’’ and ‘‘withholding of payment.”’

And in implementing the regulations, the Mississippi De-

partment does not continue assistance for the 20 day period

where “‘suspension’’ and ‘‘withholding’’ of the grant are

‘nvolved. In this way, the state is able to continue its

practice of withdrawing assistance without opportunity for

a prior hearing, despite the existence of these handsome

regulations.

The regulations proposed by Mississippi in response to

the Gandy suit no more resolved the issues in that case

than would the H. E. W. regulations solve the present con-

troversy. Both are as tents pitched upon shifting sands.

Neither afford any more than illusory protection in an

area where the Constitution requires safeguards that are

meaningful in actual fact.

2. The H. E. W. Regulations, Requiring the Continuation of As-

sistance Only in Cases Where the Request for a Hearing Is

Based Upon Issues of Fact or of Judgment, Permit and En-

courage the Arbitrary Denial of Due Process Rights.

Under the terms of the H.E.W regulation, it is not

enough for the recipient whose assistance is about to be re-

duced or withdrawn to merely request that he be given

a fair hearing in order to effect the continuation of his bene.

fits during the period of the appeal. For the Welfare do.

partment is given the duty of then determining, on the basis

of type of issue involved in the appeal, whether the re.

cipient’s assistance is to be immediately reduced or with.

drawn, or whether the case qualifies for the continuation af

benefits during the fair hearing process. While the stanj.

ards given the welfare department for making this Critical

judgment are probably not in themselves invalid, they are

such that not even the most talented and well-meaning

welfare officials could either understand or meaningfully

follow them. The consequence of vesting such effectively

unfettered discretion is to encourage what is certain to be

an arbitrary and costly abridgement of the due process

rights of recipients.

The H. E. W. regulations provide, in part, that:

‘*When a fair hearing is requested because of termina.

tion or reduction of assistance, involving an issue of

fact, or of judgment relating to the individual case,

between the agency and the appellant, assistance vill

be continued during the period of the appeal . . .”

34 Fed. Reg. 1144 (Jan. 24, 1969) (emphasis added),

There are several constructions which might be given to

the emphasized language. The most obvious meaning is

also the most objectionable—namely, that the local welfare

department may discontinue the assistance of a recipient,

despite his request for a fair hearing, where the depart-

ment is unable to find any issues of fact or of judgment

involved in the appeal. Such an interpretation would in

effect allow the department to conclude that its own case

against the recipient was so clear and one-sided that no

‘*issues’’ were presented, despite the fact that the recip

ient’s timely request for a fair hearing entitles him to

administrative review. Such an interpretation of the reg-

ulation, which would permit the very authorities who are

—

meant to be restrained by the requirements of due process

to make their own determination of what due process pro-

tections are warranted, would be a grotesque perversion

of a fundamental constitutional principle, and would render

it a practical nullity.

A more reasonable meaning to be given the language of

the regulation is that it is meant to represent a loose trans-

lation of the distinction often drawn in administrative

law between legislative and adjudicative facts. See part

1.C, supra. The inclusion of this language in the regula-

tion would then appear to merely repeat the doctrine that

a recipient has a right to a prior trial-type hearing only

in cases involving issues of adjudicative fact. While this

is a satisfactory doctrine as a doctrine, its practical appli-

cation in the welfare area by local welfare authorities only

serves to invite its distortion and the corsequent denial of

a prior hearing in cases where individual recipients are

constitutionally entitled to one.

As amicus has suggested in Part I-C, supra, in every

ease in which a recipient of public assistance contests a

threatened reduction, suspension or termination of his

previously determined statutory entitlement, the proceed-

ing is inherently and fundamentally adjudicative, even

when the sole issue raised is the legality of the agency reg-

ulation or policy. Thus, the distinction is at best irrele-

vant in the context of welfare, for if properly drawn, the

result would be that benefits would be continued in virtually

every case in which a recipient seeks to contest a threat

to his entitlement.

The difficulty is that the distinction is not going to be

properly drawn by those charged with making it, with the

result that many who are constitutionally entitled to a

prior hearing will not receive one. Welfare officials have

never had occasion to draw any distinction between the

types of fact involved in an appeal. Davis has noted that,

as regards the ‘‘distinction between legislative and adjudi.

cative facts . . . the line is sometimes difficult or impor.

sible to draw,’’ and that ‘‘in the borderland the distinction

often has little or no utility.” 1 K. Davis, Administrs.

tive Law Treatise, § 7.02 at 414 (1958). If it is true, as Davis

suggests, that even ‘‘the courts have seldom been articulate

about the cardinal distinction between adjudicative ang

legislative facts . . .’’ (Id. at § 7.06, p. 429) it would be

unreasonably optimistic to expect welfare officials who have

never before been vested with the duty of drawing such

distinctions to do so with any precision or consistency,

Perfectly administered, the result would be the continua.

tion of assistance during the appellate process in no less

than 100% of the cases where benefits are threatened,

Imperfectly administered, as cannot help but be the case,

the result is the certain withdrawal of benefits from the

needy by means which violate their fundamental consti.

tutional rights.

A regulation which incorporates standards that cannot

be either interpreted or meaningfully applied by officials

who are constitutionally bound by them is pernicious and

invalid, for the actions which those officials purport to take

under the guidance of such standards cannot be other than

arbitrary and capricious. ‘‘Arbitrary power and the rule

of the Constitution cannot both exist. They are antago-

nistic and incompatible forces; and one or the other must

of necessity perish whenever they are brought into con-

flict.”’ Jones v. S. E. C., 298 U.S. 1, 24 (1936).

—

3, The H.E. W. Regulations Shift to the Recipient the Crit-

ical Burden of Justifying a Prior Hearing, and Thereby

Erect an Impermissible Barrier to the Exercise of His Due

Process Rights.

As noted above, the burden of distinguishing ‘‘legisla-

tive’ from ‘‘adjudicative’’ facts has frequently proved

«difficult or impossible to draw’’ even when that task was

assumed by appellate judges. The new H. E. W. regulation

would turn the task over to low echelon bureaucrats in the

fifty-one welfare establishments. As an abstraction, this

might not offend. But when a constitutional right as enun-

ciated by this Court (Garfield v. Goldsby, 211 U. S. 249, 262

(1908) )—protective of a disadvantaged citizen’s most prim-

itive interest, ‘‘the very means to subsist’’ (Shapiro v.

Thompson, 394 U. S. 618, 627 (1969) )—is made the unwill-

ing captive in such a free-wheeling delegation, the encroach-

ment upon the ‘‘essence of due process’’ is hardly petty.”

Garfield v. Goldsby, supra at 262. Within this administra-

tive nightmare, the welfare recipient is left to shift for

himself in the hope that he can frame his request for a

hearing in such an artful manner so as to convince the local

welfare office that his is a case involving only ‘‘an issue

of fact, or of judgment’’. The mocking travesty of placing

this burden upon a class of educationally and economically

12. As amicus has demonstrated to this Court at some length

above, the fundamental rule of constitutional due process is that

a person aggrieved by an administrative action is entitled to a

trial-type hearing before that action becomes effective. Garfield v.

Goldsby, 211 U. S. 249 (1908). The only exceptions to this rule

of a prior opportunity to be heard are those in which the state can

demonstrate a peculiarly urgent and emergency need for immedi-

ate summary action. Summary action being the rare exception to

the usual rule, the burden lies with the government of justifying

its need for such an extraordinary procedure. Comment, With-

drawal of Public Welfare: The Right to a Prior Hearing, 76 Yale

L. J. 1234, 1240 n. 26 (authorities collected) (1967). The H. E. W.

regulation, by shifting the effective burden to the recipient, vio-

lates this fundamental principle of due process.

——ay

disadvantaged citizens should be sufficient to constitution.

ally condemn this regulation even if the test were anal

to that applied in Rochin v. California, 342 U. g. 165, 179

(1952). The inability of a grade-school dropout to frame

even a simple ‘‘request for a hearing’’ has been fully recog.

nized by the Department which now seeks to hold such per.

sons to the standards of code pleading. A contrast between

the silence of the new ‘‘prior hearing’’ regulation, and the

Handbook provisions governing a request for a hearing is

disturbing, to rest the objection of amicus in the most ro.

strained language.

‘“*A request for a hearing is considered as any clear ey.

pression (oral or written) by the claimant (or persop acting

for him, such as his legal representative, relative, or

friend) to the effect that he wants an opportunity to pre-

sent his case to higher authority.’? Handbook, Part IV,

§ 6300(b). The administering state agency is admonished

that it is not to limit or in any manner interfere with the

freedom of the claimant in making such requests. On the

contrary, it is to create an atmosphere designed to facili-

tate the submission and processing of such requests, and

even offer assistance in preparing the claimant’s case.

Tbid.* All of these safeguards, aptly reflecting the Depart-

ment’s appreciation of the welfare client’s limited capacity

to intone the magic word at the magic moment, existed

when the scope of the fair hearing admitted of no artificial

limitations."* And yet this is the same Department which

13. In addition, the Handbook criteria require that the claim-

ant be given written notification, and to the extent that it is pos-

sible in a given case, oral explanation of the right to and procedure

for requesting a fair hearing at the time of his initial application.

Such written and oral notice must be repeated at the time of any

agency action adversely affecting an established grant. Handbook,

Part IV, § 6300(j).

14. As noted above the opportunity for a fair hearing expressly

included: ‘‘Consideration of the agency’s interpretation of the

law, and the reasonableness and equitableness of the policies pro-

aoe

would now condition fulfillment of this Court’s due process

command on the ability of the blind, the aged, the infirm,

the untutored minor, and the hungry to complete an unes-

corted journey through the eye of an administrative needle.

“Jn all kinds of litigation it is plain that where the

burden of proof lies may be decisive of the outcome.”’

Speiser V. Randall, 357 U. 8. 513, 529 (1958). It is deci-

sive in this case. The recipient may have a very short

time in which to request a fair hearing before he suffers

the loss of his benefits. Those states which have been

ordered by a court to continue assistance until there has

heen an opportunity for a fair hearing, have held open

the opportunity to request a fair hearing for only a very

brief number of days. Thus, the period in Michigan is ten

days, Moore v. Houston (Civ. No. 104435, Mich. Cir. Ct.,

Wayne County, consent judgment entered Nov. 1, 1968),

and in New York, seven days (Kelly v. Wyman, 294 F.

Supp. 893 (S. D. N. Y., 1968)). Such short time periods

are likely to appear in other states as well, as more states

are judicially compelled to abide by the norms of due

process. It is in this perhaps short period of time that the

recipient must put together his critical request for a prior

hearing.

Even in states where the time period may be more gen-

erous, the burden is overwhelming. There is no right to

appointed counsel at this stage of the process, the proposed

regulations only granting this right for the fair hearing

itself. 34 Fed. Reg. 1144 (Jan. 24, 1969). But even the

assistance of counsel might be of little value, for though

mulgated under the law, if the claimant is aggrieved by their ap-

plication to his situation . . .”’ Handbook, Part IV, § 6300(c) (2).

Under the former Handbook scheme, unfettered cooperation be-

tween the aggrieved recipient and the agency was viable for at

the ‘‘request’’ stage their eventual difference was not a critical

factor. Under the new regulations, the ‘‘request’’ stage is critical

for it is now adversary in nature.

—

the recipient has been given notice of the reasons for the

proposed reduction or withdrawal of assistance, there is not

until the fair hearing an adequate opportunity to discover

the specific basis for the Department’s intended action,

Without such a basis, it is cruelly unjust to expect the

recipient to demonstrate in his request for a fair hearing

that there are in fact very specific issues of fact and/or

judgment involved, so as to preserve his benefits during

the extended hearing process. Such a regulation requ

the recipient, under penalty of sacrificing his constitp.

tional rights, to know long before the fair hearing what

it is the very function of the hearing to inform him of.

And even were it so possible for the recipient to obtain al

of this information at the time he must request the heari ’

it is extremely unlikely that he is versed or subtle enough

to assemble his case so as to satisfy the burden rested upon

him by this regulation.

In short, it is altogether clear that the H. E. W. regu.

tion, by upending the accepted principle of due process,

places upon the welfare recipient a burden which he cannot

possibly sustain, with the result that he is deprived of his

constitutional right to be heard before the bare means of

subsistence are taken from him. Such a regulation is a piti-

ful alternative to the breastwork of protection required by

the Constitution.

4. The H.E.W. Regulations Permit the States to Reduce or

Withdraw Assistance Until Such Time as the Recipient Re.

quests a Fair Hearing, Thereby Depriving Him of His Right

To Be Heard Before His Statutory Entitlement Is Impaired.

The H. E. W. regulation explicitly states that it is per.

missible for the state to reduce or withdraw asistance im-

mediately, and for as long a period as it takes the recipi-

ent to make a timely request for a fair hearing. The

regulation states, in part, that:

When a fair hearing is requested ... assistance will be

continued during the period of the appeal and through

the end of the month in which the final decision on the

fair hearing is reached. (If assistance has been termi-

nated prior to timely request for fair hearing, assist-

ance will be reinstated.) 34 Fed. Reg. 1144 (Jan. 24,

1969) (emphasis added).

Because the regulation so sanctions the withdrawal of

assistance prior to and without the opportunity to be heard,

it fails to satisfy the basic due process requirement that

there be an opportunity to be heard before the administra-

tive action becomes effective. The fact that assistance

may be reinstated once a request for a hearing has been

made does not alter the very real fact that the recipient

may have been deprived of the very means of survival for

a period of perhaps several months. Such a procedure is

no less offensive to the basic norms of due process than

were the recipient only reinstated after the fair hearing.

The difference is at best one of a few months; neither con-

itutional principles nor human needs are so calibrated.

The Federal Handbook does not specify the amount of

time the states must allow the recipient to request a fair

hearing. The Handbook merely requires that a ‘‘reason-

able time” be allotted. Handbook, Pt. IV, § 6300(d). The

states have all interpreted this requirement so as to give

aggrieved recipients a lengthy time in which to make such

a request. California is perhaps the most generous, re-

quiring only that the request be filed ‘‘within one year

after the order or action complained of.’’ Cal. Wel. & Inst.

Code, § 10951. Most of the states typically allow a period

of two to three months. A few states, as has already been

noted, have considerably shorter periods, but these are

states which have been judically compelled to continue

assistance until there has been an opportunity for a hear-

ing. None of these states was permitted to adopt the

——ay

procedure, sanctioned by this H. E. W. regulation, of with.

drawing assistance at once, and only continuing it from

the time a fair hearing request was entered. Had they bee,

allowed to do so, it is unlikely that they would have g

reduced the period for making a timely request. Cong.

quently, in considering the effect of the H. E. W., regula.

tion, it is not unreasonable to assume that states would

continue to retain the two to three month request period.

and that assistance might be withheld for up to 9 day

in cases where recipients operated within the state-estg},

lished time periods.

To contend that such an extended withdrawal of aggist

ance, before there has been an opportunity to be heard

could be cured by the tardy recipient himself is to ignor

the hard reality that welfare recipients are not only poo

and unsophisticated, but that they are easily confused an

intimidated by the complexities of the modern day, re

taped world. They do not read all of the notices spun of

for their benefit; it may be a week or more before the

realize that the welfare check is not just late this mont

but somehow missing; if they know where to go to tal

about the sudden turn in their lives, it may be even mor

days before the bus or subway fare to make the trip |

scraped together. This is not mere fiction. For wh:

other reason would the vast majority of the states, j

interpreting the federal requirement that a ‘‘reascnable

time be allowed, have given recipients at a minimum ty

months in which to appeal from a loss in benefits?

The length of time for which a recipient’s benefits mig

be withheld under the H. E. W. regulations is further cor

pounded by the fact that a state which pays welfare gran

on a monthly basis may ‘‘reinstate’’ the recipient to t

rolls immediately upon receiving his timely request f

a hearing, though not actually resuming the critical flo

of assistance until the next pay period arrives, perhaps:

additional full month away. Nothing in the regulation

would prevent such added delays, nor is there any sugges-

tion that the state must make retroactive payment at the

time it reinstates the recipient for the period during which

benefits were withheld.

This H. E. W. regulation directly conflicts with the due

process requirement that assistance be continued until there

has been an opportunity for a hearing. To hold otherwise

is to permit the emasculation of basic constitutional safe-

guards which were designed to protect all citizens, includ-

ing the poor, against the arbitrary action of government.

This Court recognized more than thirty years ago that

‘Gf the various administrative bureaus and commis-

sions, necessarily called and being called into exist-

ence by the increasing complexities of our modern

business and political affairs, are permitted gradually

to extend their powers by encroachments—even petty

encroachments—upon the fundamental rights, pri-

vileges and immunities of the people, we shall in the

end, while avoiding the fatal consequences of a su-

preme autocracy, become submerged by a multitude of

minor invasions of personal rights, less destructive

but no less violative of constitutional guaranties.’’

Jones v. S. E. C., 298 U. S. 1, 24-25 (1936).

CONCLUSION.

For the foregoing reasons, it is the prayer of amicus

that the judgment entered by the court below be modified,

and as so modified, affirmed. In so doing, this Court should

declare that the ‘‘right vs. privilege’’ dichotomy is con-

trary to the rule that all governmental action must be sub-

jected to the test of due process. This Court should fur-

ther declare that every citizen has a fundamental personal

interest in survival at a subsistence level, and that govern-

ment may never jeopardize or impair this primitive in-

terest without first satisfying the most stringent standards

of fairness. The Court should hold that welfare benefit,

may never be terminated, suspended, reduced, conditioned

or otherwise withdrawn until the aggrieved recipient has

had an opportunity for an adequate hearing, which mngt

include, at a minimum, these constitutionally required ¢le.

ments: notice; discovery; the right to counsel; an oral

hearing; confrontation and cross-examination ; the right to

present evidence and make oral argument; an impartial

tribunal; decision on the record; and judicial review, Ip

conclusion, this Court should advise that because the Con.

stitution requires a full, trial-type hearing before a welfare

recipient’s statutory entitlement may be adversely affected,

a dual hearing system of the type approved by the court

below cannot satisfy the requisites of due process unless

the prior hearing is itself the full and fair hearing.

Dated, Chicago, Illinois, August 30, 1969.

Respectfully submitted,

Victor G. RosEensBLuM,

3203 S. E. Woodstock Boulevard,

Portland, Oregon 97202,

Craic W. CHRISTENSEN,

Danie, Wo. FEssLer,

25 West Chicago Avenue,

Suite 500,

Chicago, Illinois 60610,

Attorneys for Amicus Curiae, Nationol

Institute for Education m Law an

Poverty.

Of Counsel:

CuristoPHER N. May,

Director of Research for Amicus Curiae,

National Institute for Education in Law

and Poverty.

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.