# Amicus Curiae Brief — Goldberg v. Kelly

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0162%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1970
- **Citation:** 397 U.S. 254

## Text

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

a

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

ii

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

2
3.
4. Oral Hearing
5
6

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

i

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

iv

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.

v

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

a

vi
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)

2

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

ix
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

x

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.

2

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

3

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;

6

(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

| —

7

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,

8

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,”’

9

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.

10

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,

11

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).

12

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

_—

13

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.

14

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.

15

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

16

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.

17

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

18

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).

_ —

19

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

9?

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

20

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.

21

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.’’

22

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

23

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

24

25

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

26

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. ]

27

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

28

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.

29

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-

30

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

_—

31

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

32

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-

33

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

34

5. Provisions of the Federal Handbook were considered by this
Court in King v. Smith, 392 U. S. 309, 317 (1968).

35

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.

36

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).

37

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-

ee

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.*

38

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-

39

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.”’

40

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

ae

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

41

42

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

43

—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.

44

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

45

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

'
}
'
|

46

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.

—

47

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

48

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

,

49
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

—

50

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

51

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.

52

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

53

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

54

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

ay

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55

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,

56

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 inter

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0162%3A06. Public record. Not legal advice.