Amicus Curiae Brief — Wheeler v. Montgomery

Supreme Court brief1970

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FILED

FILE Copy JUN 30 190

~-= ren CLERK

In the Supreme Court of the

United States

Ocroser Term 1968

No. 664 14

Mar WHEELER, et al.,

Appellants,

vs.

JoHNn MontTcoMeEry, et al.,

Respondents.

On Appeal from the United States District Court

for the Northern District of California

Amicus Curiae Brief on Behalf of Appellants

Tecate L. Fixe

Tuomas SCHNEIDER

Burton DANZIGER

Davi Nawi

1815 ——— Avenue

Oakland, California 94612

Attorneys for Amicus Curiae,

Legal Aid Society of

Alameda County

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

County

Summary of Argument

+ argument

SUBJECT INDEX

Page

Interest of Amicus Curiae, Legal Aid Society of Alameda

I. The notice and informal conference provided by the

challenged regulation prior to termination of benefits by

a county welfare department do not afford the protec-

tions required by due process

There is no compelling publie necessity or other

justification for the procedural inadequacies of the

regulation

A decision to terminate categorical aid benefits is

an adjudicatory act, requiring, as a minimum, ade-

quate notice, opportunity for confrontation and

cross-examination, a decision based on evidence

produced at a hearing, an impartial trier of fact,

and a decision on the merits. The challenged regu-

lation provides none of these

1. The regulation fails to provide adequate notice

2. The regulation provides no opportunity to test

the credibility and probative value of evidence

3. The regulation fails to reqire a decision based

on evidence produced at a hearing ..................

4. The regulation fails to provide an impartial

trier of fact

5. The regulation fails to require a decision on

the merits

The availability of a subsequent hearing does not

justify the elimination of an adequate prior

ITD: cxscisuistatniciasastnitinttniniiattaiiatphieninttaentanianatittiaeaaatsies

II. The notice and informal conference provided by the

challenged regulation prior to termination of categori-

cal aid benefits by a county welfare department do not

afford the protection required by the California Legis-

lature

ii Susyect INDEX

Conclusion

Appendix A—California State Department of Social Welfare

Public Social Services Manual Regulation 44-325 .... App, |

Appendix B—A Comparison of Certain Procedures of Selected

AGmimiatrative AGeMGies ...........1...........ccseccseceseccssesescecseseeeees App. 1

Appendix C—‘‘Opposition to Introduction of Additional Byi.

dence’’ filed by California Attorney General in the Court of

Appeal of the State of California in McCullough 1s.

III cccneneninenrenensanncennnanmrennnanensaencnaranenancsnseinasanananinesiaiiaa App. 11

TABLE OF AUTHORITIES CITED

CasEs Pages

Armstrong v. Manzo (1965) 380 U.S. 545 9

Cafeteria & Restaurant Workers Union v. McElroy (1961)

367 U.S. 886 4, 8, 21

Carroll v. California Horse Racing Board (1940) 16 C.2d 164,

105 P.2d 110 23

Covert v. State Board of Equalization (1946) 29 C.2d 125, 173

P.2d 545 23, 25

Dixon v. Alabama State Board of Education (5 Cir. 1961) 294

F.2d 150, Cert. Den 368 U.S. 930 8, 14, 19, 20, 21

Edwards v. California (1941) 314 U.S. 160 9

Endler v. Schutzbank (1968) 68 C.2d 162, 436 P.2d 297, 65

Cal Rptr 297 7,8

English v. City of Long Beach (1950) 35 C.2d 155, 217 P.2d

22,18 ALR 2d 547 7,13

Escobedo v. State of California (1950) 35 C.2d 870,222 P.2d1 27

Fascination Inc. v. Hoover (1952) 39 C.2d 260, 246 P.2d 656 21

Goldberg v. Regents of University of Califormia (1967) 248

ES 21

Gonzalez v. Freeman (D.C. Cir. 1964) 334 F.2d 570 ................ 21

Greene v. McElroy (1959) 360 U.S. 474 000. occccccccee 7, 12, 18, 21

Hannah v. Larche (1960) 363 U.S. 420 . 7

Hornsby v. Allen (1964) 326 F.2d 605 7, 10, 21

LC.C. v. Louisville & N.R. Co. (1912) 227 U.S. 88 ............ 14, 17, 21

In re Murehison (1955) 349 U.S. 133 7

Keenan v. S.F. Unified School District (1950) 34 C.2d 708,

i. | xa 26

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

jurisdiction noted sub nom Goldberg v. Kelly (1969) 37

LW 3399 ...... isiecseiadinteleiiiaetiiainitiacns 6, 11, 14, 15

La Prade v. Department of Water and Power (1945) 27 C.2d

47, 162 P.2d 18 ....... 23, 25, 26

iv Tascz or AuTHorities CITED

Mendoza v. Small Claims Ct. (1958) 49 C.2d 668, 321 P.2q

D --n--nneanennennenssenenrensensasencsnsesensseescenesensessessesnesseseseesneseesesseneeeeces 17, 18 9

North American Cold Storage Company v. City of Chicago

(1908) 211 U.S. 306 mas 2

Ohio Bell Telephone Co. v. P.U.C. (1936) 301 U.S. 292 ._7,.9

Parrish v. Civil Service Commission (1966) 66 C.2d 260, 495

P.2d 223, 57 Cal Rptr 623 wie 2

Ratliff v. Lampton (1948) 32 C.2d 226, 195 P.2d 792, 10 ARL

Oe EE eernnienicennsecennainminnsnnmniensonmeminsiitill 23, 24, 25, 26 27

Russell-Newman Manufacturing Co. v. N.L.R.B. (5 Cir. 1966)

370 F.2d 980 . 7,10

Shaughnessy v. United States (1953) 345 U.S. 206 0. »

Shively v. Stewart (1966) 65 C.2d 475, 421 P.2d 65, 55 Cal

OD Ee cieneenteeneneensnentinmennemennnmemnmmancnennninaenenimal 21

Slochower v. Board of Education (1956) 350 U.S. 551 0... 2

Sniadach v. Family Finance Corp. (1969) ........ > , 37

Ser IED swisesuecininebhdahuasiiieitniinitadittiancitetinsitinhiniininancnnesidiaiai ct Nl

Sokol v. Public Utilities Commniasion (1966) 65 C.2d 247, 418

P.2d 266, 68 Cal Rptr 678 .................................... 4, 8, 16, 17, 18,19

Steen v. Board of Civil Service Commissioners (1945) 26 C.2d

a ee ED ciestnenneminennineaitiinnadl 23, 25, 26, 27

Walker v. City of San Gabriel (1942) 20 C.2d 879, 129 P.2d,

EE 12,3

Wasson v. Trowbridge (2 Cir. 1967) 382 F.2d 807 .................... 7,4

Willner v. Committee on Character and Fitness (1963) 373

TUTE: UII sleiilinnticnshdabbatinibibichona seth hitiadideael dinitihniheige tepisetnctied lobia 7,2

CONSTITUTION

United States Constitution, 14th Amendment ............................ 3

STATUTES

Calif. Code Civil Procedure

OL EAE ace ENE 18, 19

EE Oe CR ceneeeenintentnnrrnsnennnnnntincninnnioninvindinaiae 19

TaBLE oF AUTHORITIES CrTED Vv

Calif. Welfare & Institutions Code —

§ 10000 22

§ 10600 .......--- 22

§ 10950-10965 - 4

§ 1OGSU et SOG. ---------neeereenneeseneeeeeecetsenennees 7, 24, 27

§ 11458 -.......------- 24

§ 12200 -....----------------sesenseeesensnees 23

§ 12700 -.....----------o-soneeereeesseeeeeneneeeenneneenees 23

I seticsmatinctntietsconions 23

REGULATIONS

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

US. Dept. of Health, Education and Welfare, Handbook of

Public Assistance Administration (Federal Handbook)

§ C200 (Kc) ...n....-------n-cscececcereroee a

Lt) ee 27

SOPOIED | sevitnsernnennannsnnesaneenisnanteninaeiseinstieanteseientnintanaittitatinstatminassn 9

GRRER RR e eae noe Ry 9

California State Department of Social Welfare

Operations Manual

RE ee eee ee ey EE oe 27

Public Social Services Manual

(apie An RR BRON eM Pench SL 16

8 TRINA ARE CII Oy Bonne Seles 16

SP TENITIUIE: <cistiisscechccnieinbiiiienauasistiniell 2, 3, 6, 10, 14, 17, 19, 24, 26

In the Supreme Court of the

United States

Ocroser TERM 1968

No. 634

Mar WHEELER, et al.,

Appellants,

vs.

Joun Montcomery, et al.,

Respondents.

On Appeal from the United States District Court

for the Northern District of California

Amicus Curiae Brief on Behalf of Appellants

INTEREST OF AMICUS CURIAE, LEGAL AID SOCIETY

OF ALAMEDA COUNTY

The Legal Aid Society of Alameda County is a non profit

California corporation established in 1929 for the purpose

of furnishing legal services to those residents of Alameda

County who are unable to afford the services of private

attorneys. Staff attorneys of the Society have training and

experience in Welfare law. They are currently representing

plaintiffs and respondents in McCullough v. Terzian; a

1. The record on appeal in McCullough v. Terzian, consisting

of a “Clerk’s Transcript on Appeal”, has been lodged with the

Clerk of this court. References to “C.T.” in this brief are references

to said “Clerk’s Transcript”. Since this is an amicus curiae brief,

the facts of the McCullough case are not before this Court, and it

was thought unnecessary to file a formal record of the California

State Court proceedings.

case now pending in the Court of Appeal of the State

California, First Appellate District, Division Three, 1 (jy)

No. 25830. At issue in that case is the validity with Tespert

to California statutes and the California and United Stat,

Constitutions of the identical regulation passed on by the

three judge court below and at issue herein, State Depart.

ment of Social Welfare Public Social Service Mannal 4

325.43 (hereinafter referred to as PSS 44-325.43),

McCullough is a class action in which plaintiffs and p.

spondents represent all persons receiving public assistang

under the categorical aid programs in the State of (yj.

fornia. Defendants and appellants are Hrayr Terziay, Dj.

rector of the Alameda County Welfare Department, anj

JoHN Montcomery, Director of the Department of Socis]

Welfare of the State of California. Respondent Monroy.

ERY was a defendant in the three-judge court below and is

a respondent in the instant appeal.

The trial court in McCullough rendered judgment in

favor of plaintiffs, which judgment declared PSS 44.325.3

invalid “because and to the extent it does not provide

hearing with adequate procedural safeguards . . . prior to

the withdrawal or termination of public assistance benefits

under the [categorical aid] programs as required by State

law and the United States and California Constitutions”

(C.T. 103 :29-104:6)* The judgment further ordered de.

fendant Montcomery to provide categorical aid benefits to

which recipients are otherwise entitled “until a decision, if

any, of ineligibility is rendered” pursuant to the State “fair

hearing” or its equivalent.

Plaintiffs in McCullough have a direct interest in the out-

eome of this litigation. Their claim, (and the decision of

the State Trial Court) is based in part on the contention

*See footnote 1, p. 1, supra.

[

that PSS 44-325.43 violates due process requirements of

the Fourteenth Amendment of the United States Constitu-

tion, which is the very issue presented in the instant case.

This Court’s decision on the scope of Fourteenth Amend-

ment due process will provide a minimum standard below

which no state’s law, whether decisional or statutory, may

fall. Furthermore, amicus has carefully studied the Cali-

fornia law as it bears on the sufficiency of the procedures

at issue in the instant case, and has concluded that the

State law, as well as federal, compels a reversal of the

judgment of the District Court.

With the consent of both parties pursuant to Rule 42 of

the Supreme Court Rules, Legal Aid Society of Alameda

County respectfully submits its Amicus Curiae brief in

support of appellants.

SUMMARY OF ARGUMENT

The District Court has upheld a regulation (PSS 44-325.

43, reproduced in Appendix A) which prescribes the pro-

cedure followed in California before welfare benefits are

withdrawn or withheld. The regulation applies only to re-

cipients of the “categorical aids,” Aid to Families with

Dependent Children (AFDC), Aid to the Blind (AB), Aid

to the Disabled (ATD), and Old Age Assistance (OAS).

The regulation requires notice to the recipient, in writing,

immediately after a decison is made to withhold aid and in

no case later than three days before aid is actually with-

held. It further provides that the affected recipient will

be given an opportunity within the three days to meet with

a caseworker or other unspecified person to learn the nature

and extent of the information upon which the withholding

action is based, to provide an explanation, and to “discuss

the matter informally for purposes of clarification and,

where possible, resolution.”

It does not provide adequate time to marshall or pregen

contradicting evidence; it does not provide for the g),

poena and cross-examination of witnesses; it does not pro.

vide for a review of the evidence by a clearly designated

and impartial trier of fact; and it does not provide for,

decision on the merits based solely on the record. In shor

it contains none of the procedural safeguards expregjy

included in the subsequent “fair hearing” (Calif. Welfay

and Institutions Code §§ 10950-10965 hereafter, W & |

Code) proceedings and generally contemplated by the re.

quirement of a hearing.

It is uncontroverted that the constitutional adequacy of

a “hearing” depends on the nature of the government

function as well as the nature of the private interest jp.

volved. Cafeteria and Restaurant Workers Union v, Me.

Elroy (1961) 367 U.S. 886; Sokol v. Public Utilities Com.

mission (1966) 65 C.2d 247, 418 P.2d 265.

The District Court opinion is based on the assumption

that the obvious procedural inadequacies of the regulation

(and the error and hardship which necessarily flow there.

from) are justified by the availability of a subsequent hear.

ing at the state level after termination of benefits by the

County (the fair hearing) and the competing public interest

of time and expediency.

Amicus contends that notwithstanding the availability

of a subsequent hearing due process requires an adequate

hearing prior to the time official action takes effect. An ade-

quate hearing is one that preserves all the elements of an

adjudicatory proceeding unless there is a compelling public

interest that requires the omission of one or more elements

of such a hearing. Further, common sense dictates that where

one element of judicial practice is omitted from administra-

a ee ee

tive adjudication, compensating safeguards are all the more

necessary. The challenged regulation, however, far from

compensating for procedural deficiencies, compounds them,

by eliminating nearly all of them. It provides an informal

proceeding appropriate for ordinary social worker-clieat

relationships, but totally inappropriate when the client and

the welfare department have become adversaries. Welfare

aid is usually withheld or terminated because of changed

circumstances about which there is no disagreement. Rele-

vant here, however, are those cases in which the recipient

denies an alleged change of circumstances. This is usually

no mere misunderstanding that can be cleared up by in-

formal conferences among people of good will with common

interests. It is a dispute about facts, the resolution of which

has the profoundest consequence for the recipient. The tra-

ditional procedures that have developed in our courts are

still the best way, and the only constitutional way, to assure

justice to all parties in adversary positions.

The following pages argue that the state has shown no

such compelling public necessity as would justify the pro-

cedural inadequacies of the challenged regulation. In the

McCullough® case, in a motion before the California Court

of Appeal, California’s Attorney General has expressly

stated that costs are not in issue. (See Appendix C.) Other

public interests, such as administrative convenience, are

hardly “eompelling”.

The argument continues to show that three days notice

provided for by the challenged regulation is insufficient to

permit a recipient to prepare his case; that without subpoe-

na power, and without the right of confrontation and cross-

*See footnote 1, p. 1, supra, and text thereto.

——

examination, a hearing is not an adjudicatory

but only a tool of discovery; that without a record, the per.

son who decides must decide on the basis of matters ontgiq,

the record and may decide on a version of the evideng

different from that which the recipient confronted; that thy

unnamed person in the welfare department who must é&

cide is likely to be partial, not impartial; and that in per.

mitting discontinuance of aid on the ground of “probable

ineligibility” rather than “ineligibility” California anthor.

izes a drastic result on vague and inadequate grounds,

Lastly, this brief argues that the California statute ani

case law may require even greater protection for the rm.

cipient than the United States Constitution, and, a priori

can require no less. The California Welfare and Institutions

Code permits aid to be cancelled, suspended or revoked

only “for cause” or “after investigation.” Previous Cali.

fornia interpretations of analogous language show that such

language requires a hearing with all the usual procedural

safeguards the word implies.

ARGUMENT

1. The Notice and Informal Conference Provided by the Cha

lenged Regulation Prior to Termination of Benefits by a County

Welfare Department Do Not Afford the Protections Required

by Due Process.

The District Court held that the informal conference pre-

scribed by PSS 44-325.43 is a constitutionally adequate

“hearing” prior to termination of benefits, in the light of

subsequent “fair hearing” requirements. This decision not

only conflicts with the decision in Kelly v. Wyman (SD.

N.Y. 1968) 294 F. Supp. 893, probable jurisdiction noted,

sub. nom Goldberg v. Kelly, 37 LW 3399, but with basic

constitutional principles.

—

7 ao ao ao

An erroneous decision to terminate aid to a welfare

recipient is disastrous to the individuals affected. Under

California Welfare and Institutions Code (hereinafter re-

ferred to as W. & I. Code) Sections 10950 et seq. the review

of such a decision does not stay its effect, and the review

takes two months or longer. Since most recipients are under

an incapacity which prevents them from supporting them-

selves (e.g. blindness, old age, infancy or medical disability)

they will not have minimum subsistence for this period.

The existence of a hearing subsequent to termination, there-

fore, affects neither the importance of the prior decision

nor its basic adjudicatory character.

As a general rule, due process requires that such a deci-

sion be made in accordance with “procedures which have

traditionally been associated with the judicial process.”

Hannah v. Larche (1960) 363 U.S. 420, 442. These pro-

cedures have been held to include adequate notice, Russell-

Newman Manufacturing Co. v. N.L.R.B. (1966) 370 F.2d

980; see, Hornsby v. Allen (1964) 326 F.2d 605, 608; the

right to confrontation and cross-examination, Greene v.

McElroy (1959) 360 U.S. 474; Willner v. Committee on

Character and Fitness (1963) 373 U.S. 96; a decision based

on evidence produced at a hearing, Ohio Bell Telephone

Co. v. P.U.C. (1936) 301 U.S. 292; English v. City of Long

Beach (1950) 35 C.2d 155, 217 P.2d 22; an impartial trier

of fact, Wasson v. Trowbridge (1967) 382 F.2d 807; In re

Murchison (1955) 349 U.S. 133; and a decision on the merits,

Endler v. Schutzbank (1968) 68 C.2d 162, 436 P.2d 297.

Occasionally, where there is a compelling public inter-

est involved, one or more of these elements may be con-

stitutionally omitted. Absent considerations of compelling

public necessity, however, due process requires the preser-

vation of all the elements of an adjudicatory proceeding

necessary for the protection of the interests affected. Cafe.

teria and Restaurant Workers v. McElroy (1961) 367 Us

886; Sokol v. Public Utilities Commission (1966) 65 O94

247, 418 P.2d 265; Dixon v. Alabama State Board of Educa.

tion (5 Cir. 1961) 294 F.2d 150. As is shown immediately

below, there is no compelling public interest or other justi.

fication for the procedural inadequacies of the regulation,

Thus, the hearing preceding the termination of aid to g

welfare recipient must preserve all the traditional elements

of the adjudicatory process. The regulation preserves none.

A. THERE IS NO COMPELLING PUBLIC NECESSITY OR OTHER JuSTiFiCa.

TION FOR THE PROCEDURAL INADEQUACIES OF THE REGULATION,

The District Court does not specify what public interest

it relies on to justify the obvious procedural deficiencies jp

the regulation. Mere administrative inconvenience to the

state or counties, certainly, cannot justify the sacrifice of

safeguards required by due process. Ohio Bell Telephone

Company v. Public Utilities Com. (1937) 301 U.S. 292, 304.

305; Endler v. Schutzbank (1968) 68 C.2d 162, 180, 436

P.2d 297. Since adequate hearings are already provided

after action is taken, it can hardly be claimed that the pro-

vision of such hearings prior to action would impair the

ability of the state and county departments from carrying

out the functions for which they are responsible.

Perhaps of ultimate concern to the State is the question

of cost.? By providing for an ex parte determination of

2. In the ease of McCullough v. Terzian, in the California Court

of Appeal, the Attorney General of California filed a memorandum

(Appendix C) opposing the introduction of additional evidence in

that court, stating that “cost to the State has not been put in issue.”

The additional evidence offered was admittedly incomplete but

tended to show that costs to the State resulting from the State-wide

order of the trial court was not significant.

probable ineligibility without any provision for contesting

that determination on its merits in a meaningful hearing

prior to the withdrawal of benefits, the State Department

of Social Welfare is obviously attempting to minimize the

cost of paying welfare benefits to persons who may not in

fact be eligible. In so doing they have apparently deter-

mined that it is more important to protect the public purse

than it is to protect the public reputation for justice. While

it is of course important to preserve public funds, consti-

tutional rights cannot be sacrificed in the process. Edwards

v. California (1941) 314 U.S. 160.

Furthermore, the costs thus saved will not be great. Under

the judgment of the California Superior Court in McCul-

lough,® for example, the continued payment of benefits

pending an adequate hearing is available only to a person

who controverts the allegations of ineligibility in a sworn

statement and requests a “fair hearing”. Payment of bene-

fits to these persons pending an adequate hearing causes

the State no financial injury at all if the recipient is found

eligible, since binding federal regulations require payment

of aid retroactively to the date of discontinuance. Federal

Handbook of Public Assistance Administration (Federal

Handbook), Sections 6200 (k), 6300 (g). Furthermore, aid

payments pending hearing are explicity sanctioned under

regulations enacted pursuant to the Federal Social Security

Act. (Federal Handbook, Section 6500 (b)). Under these

cireumstances, amicus submits that the regulation fails to

provide a hearing “at a meaningful time and in a meaning-

ful manner” which due process requires. Armstrong v.

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

*See footnote 1, p. 1, supra, and text thereto.

me ome

8. A DECISION TO TERMINATE CATEGORICAL AID BENEFITS is ay

JUDICATORY ACT, REQUIRING, AS A MINIMUM, ADEQUATE NOTICE

OPPORTUNITY FOR CONFRONTATION AND CROSS-EXAMINATION, A

DECISION BASED ON EVIDENCE PRODUCED AT A HEARING, an iu.

PARTIAL TRIER OF FACT, AND A DECISION ON THE MERITS. THE

CHALLENGED REGULATION PROVIDES NONE OF THESE.

A decision to withdraw benefits must be based on a de.

termination that a recipient previously found eligible for

such benefits is no longer eligible. In contested cases, such

a determination requires the resolution of disputed factna]

issues and the application of detailed statutory and regu-

latory criteria and is therefore an adjudicatory act. See

Hornsby v. Allen (5 Cir. 1964) 326 F.2d 605, 608. It there.

fore requires the elementary safeguards which the chal.

lenged regulation fails to provide. 326 F.2d at 608.

1. The regulation fails to provide adequate notice.

It is elementary that due process requires notice of

charges sufficiently in advance of hearing to permit ade.

quate preparation for a hearing. Russell-Newman Mam-

facturing Company v. N.L.R.B. (5 Cir. 1966) 370 F.2d 980;

see Hornsby v. Allen, (5 Cir. 1964) 326 F.2d 605.

PSS 44-325.43 provides that a recipient shall be notified

of a decision to withhold categorial aid benefits and the

grounds therefor at least three days before aid is actually

withheld. It further provides that the recipient shall be

informed of the evidence on which such a decision is based

at an informal conference which is the recipient’s sole

opportunity to contest the county’s action before it takes

effect.

The evidence presented to the recipient for the first time

at the conference may be overwhelming in detail and may

be in a form so general or unorganized that it would be

difficult to refute under any conditions. To do so imme-

diately after first notice is often impossible. Even if the

county’s evidence is made available to the recipient prior

aT Fry,

to the conference, three days is manifestly too short a

time to permit adequate preparation. In this briefest of

periods, the recipient who receives notice of proposed termi-

nation must gather and present evidence to rebut a report

which professional investigators had a month or longer

to prepare.® He is called upon to secure legal counsel, dis-

cover and evaluate the factual and legal grounds for the

proposed termination, contact the county department to

schedule an informal conference, interview adverse and

favorable witnesses and arrange for their presence at the

conference (without the benefit of subpoenas), and secure

relevant documentary evidence, such as medical reports

or wage records (again without the benefit of subpoena

power). If all this is not adequately accomplished in a

period as short as three days, there will be no chance of

disturbing the ex parte determination of ineligibility and

benefits will be withheld. In these circumstances the right

to counsel is illusory.

The regulation involved in Kelly v. Wyman (S.D.N.Y.

1968) 294 F. Supp. 893, probable jurisdiction noted, sub

nom Goldberg v. Kelly, (1969) 37 LW 3399, required seven

days written notice prior to the proposed effective date

of the discontinuance. The District Court in that case

deemed such notice mailed seven days before effective date

adequate. This is one of the most important distinctions

between the New York and California regulations.

While three days may provide notice of proposed action,

it clearly does not provide an adequate opportunity to con-

3. The record in McCullough (see footnote 1, supra, p. 1)

shows that the investigation by the District attorney’s office of Mary

McCullough’s eligibility lasted at least 36 days. On February 15,

1968, the man alleged to be living with Mrs. McCullough was inter-

viewed, C.T. 73, and the supplement summarizing the statements of

two witnesses is dated March 21, 1968. C.T. 75. This length of time

is not exceptional.

test the validity of that action. The California regulatio,

provides a tool of discovery rather than an ad judicatory

proceeding.

2. The regulation provides no opportunity to test the credibility and probatiy

value of evidence.

Even if the regulation permitted adequate time to pre.

pare for the conference, it would be constitutionally jp.

adequate because its failure to provide subpoena power or

the power to administer oaths deprives both the county

and the affected recipient of any opportunity to test the

credibility and probative value of the evidence on which

a decision to terminate benefits is based.

Complex factual determinations, such as whether a hus.

band and wife are disassociated or have abandoned a child,

whether a man has lived with a woman in a spouse-like

relationship, or whether a person is physically or psycho.

logically unemployable, are a necessary element in many

decisions to withhold public assistance benefits. Where, as

here, such fact findings serve as a predicate for govern-

mental action which seriously injures an individual, con-

frontation and cross-examination are an indispensable ele.

ment of a hearing. Greene v. McElroy (1959) 360 U.S. 474,

507 ; Willner v. Committee on Character and Fitness (1963)

373 U.S. 96. See, Walker v. City of San Gabriel (1942) 0

C.2d 879, 129 P.2d 349.

Under the regulation, however, a determination of in-

eligibility must be made on the basis of evidence which is

primarily hearsay, circumstantial and untested opinion.

“TN]ot only is the testimony of absent witnesses allowed

to stand without the probing questions of the person under

attack which often uncover inconsistencies, lapses of recol-

lection, and bias, but in addition, even [county personnel]

do not see the informants or know their identities, but

pormally rely on an investigator’s report of what the in-

formant said without even examining the investigator per-

nally.” Greene v. McElroy (1959) 360 U.S. 474, 497-499

footnotes omitted). Without the ability to require the

sttendance of witnesses and to take sworn testimony, a

trier of fact has no rational or adequate method of weigh-

ing conflicting testimony and therefore cannot render a

meaningful decision.

3. The regulation fails to require a decision based on evidence produced at

a hearing.

A decisional process which permits a determination to

be made on the basis of evidence heard ex parte is mani-

festly inadequate to protect the affected party against arbi-

trary action. Ohio Bell Telephone Co. v. P.U.C. (1937) 301

US. 292. “[T]he requirement of a hearing necessarily

contemplates a decision in light of evidence there intro-

duced.” English v. City of Long Beach (1950) 35 C.2d 155,

159, 217 P.2d 22, 24.

The regulation provides an opportunity for the recipi-

ent “to learn the nature and extent of the information on

which the withholding action is based” and “to provide an

explanation or infcrmation.” However, it does not provide

the recipient with the right to present any such explana-

tion or information to the person or persons responsible

for rendering the ultimate decision, nor does it require

that a record of the evidence be made and transmitted to

the decision maker. Presumably the substance of the coun-

ty’s evidence and the recipient’s “explanation or informa-

tion” must be communicated to the person who decides.

This material may be transmitted in such a manner as to

destroy its worth altogether. Elements may be omitted,

distorted or colored in the retelling. The version that ulti-

mately reaches the trier of fact may be incomplete or in-

accurate, and may be quite different from the version tha

confronted the recipient at the informal conference,

Under these circumstances the opportunity offered by

the regulation to “provide an explanation” offers po

meaningful opportunity to present evidence and cannot be

deemed to satisfy due process. See, I.C.C. v. Louisville ¢

N. R. Co. (1912) 227 U.S. 88, 91; Dixon v. Alabama State

Board of Education (5 Cir. 1961) 294 F.2d 150.

4. The regulation fails to provide an impartial trier of fact.

Even if a recipient were afforded adequate notice and

the right of confrontation and cross-examination, the fail.

ure of PSS 44-325.43 to require a decision by a person

having no prior direct involvement in the case renders it

inadequate to provide the protection required by due

process.

It is too clear to require argument or extended citations

that a fair hearing presupposes an impartial trier of fact

and that prior official involvement renders impartiality most

difficult to maintain. Wasson v. Trowbridge (1967) 382

F.2d 807, 813. Under the regulation, an affected recipient

is entitled only to a conference with his caseworker or other

unspecified county personnel who not only may have been

involved in prior aspects of his case, but who may have

actually made the initial recommendation to withhold bene-

fits. The court in Kelly v. Wyman, supra, 294 F. Supp. 893,

906 construed a regulation which provided:

“Only the social services official or an employee of his

social services department who occupies a position

superior to that of the supervisor who approved the

proposed discontinuance or suspension shall be desig-

nated to make such a review.”

The court said that, if in practice the reviewing official were

a ease supervisor who had been consulted in advance for

approval of proposed terminations or who might even have

initiated the recommendation to terminate, it would be a

cear violation of the spirit of the New York regulation.

994 F. Supp. at 907. The California regulation does not even

attempt to require the decision maker to be a superior of

the one who made the initial decision. It leaves the position

of the decision maker completely unspecified. In fact, in

relatively small county welfare departments there may be

only one superior in the department, so that he will un-

doubtedly be the one who made the preliminary decision.

Thus, the California regulation cannot be construed so as

to be constitutional, unlike the New York regulation.

To illustrate the application of the California regulation,

in the case of Mrs. McCullough (one of the plaintiffs in

the California State Court action*), after receiving the

investigation reports of the Family Support Division of

the District Attorney’s office, the social worker for Mrs.

McCullough, along with her supervisor, determined that

her continued eligibility for welfare benefits was condi-

tioned on her admission that she was and had been living

with a man whose income would have to be considered in

determining her grant. C.T. 51-52. The social worker then

visited Mrs. McCullough, discussed the investigator’s re-

port with her, and advised her that if she admitted that

the man in question was living with her, her grant would

be adjusted in accordance with his income, but that if she

denied it, aid would be discontinued. Mrs. McCullough de-

nied the allegation and two days later she was notified that

her case was being discontinued, “because of failure to pro-

vide essential information”, C.T, 52. Although she had the

right, before termination became effective, to again discuss

*See footnote 1, p. 1, supra, and text thereto.

the matter with her social worker, there was no right to

independent review by any person not previously conneeteg

with the case. Instead of initiating an impartial review of

the facts, her denial terminated her right to further bene.

fits. The “hearing” provided by the regulation is no more

than the opportunity to dissuade a person who has already

decided (and who may have a vested interest in supporting

that decision). Impartiality and fairness under these gir.

cumstances may not only be difficult, but impossible to

maintain.

5. The regulation fails to require a decision on the merits.

Finally, and perhaps most significantly, the regulation

does not require a decision on the merits but permits the

county to withhold benefits upon the receipt of evidence

“which is both substantial in nature and reliable in source

. indicating . . . probable ineligibility”, PSS 44-325.421

(Emphasis added; set forth in Appendix A.)

Not only is it incumbent upon the county to withdraw

benefits upon a determination of probable ineligibility but

it is required to do so as soon as possible. PSS 44-3251

(Set forth in Appendix A). Under these circumstances a

county may withhold benefits without regard to the con-

tradictory evidence offered by a recipient, thereby leaving

the ultimate decision on the merits to the subsequent hear-

ing conducted by the State Department of Social Welfare.

The only place in our system of justice where such a pro-

ceeding is deemed permissible is in the area of law enforee-

ment or where the public health or safety is endangered.

Sokol v. Public Utilities Commission (1966) 65 C.2d 247,

418 P.2d 265; North American Cold Storage Company ».

City of Chicago (1908) 211 U.S. 306. Even in those circum-

stances there are a variety of devices available to prevent

i es

or mitigate the injury which may flow from the necessity

of taking governmental action before there has been a full

pearing on the merits, such as bail, release on own recogni-

sance, preliminary hearings, etc. There are no devices for

mitigating the damage herein or for staying the govern-

mental action and there is no threat to the public safety

involved.

In light of the vital interest of public assistance recipients

in an adequate hearing prior to withdrawal of benefits and

of the absence of any significant interest of the County or

State to the contrary, amicus submits that the termination

procedures of PSS 44-325.43 are “inconsistent with rational

justice, and [come] under the Constitution’s condemnation

of all arbitrary exercise of power.” I.C.C. v. Louisville &

N. R. Co. (1912) 227 U.S. 88, 91.

C. THE AVAILABILITY OF A SUBSEQUENT HEARING DOES NOT JUSTIFY

THE ELIMINATION OF AN ADEQUATE PRIOR HEARING.

The District Court opinion implies that the procedural

safeguards obviously omitted from the regulation are not

constitutionally required prior to the termination of bene-

fits because a fair hearing is available afterwards. The law

is clearly to the contrary. Absent come compelling public

interest, due process requires procedural safeguards ade-

quate to protect the interest affected prior to action.

This Court most recently reaffirmed this proposition in

Sniadach v. Family Finance Corp. (1969) .......... a ,

37 LW 4520.

Two California cases are likewise instructive on the ne-

cessity of a hearing prior to the time action takes effect,

despite subsequent procedures. Mendoza v. Small Claims

Court (1958) 49 C.2d 668, 321 P.2d 9; Sokol v. Public Utili-

ties Commission (1966) 65 C.2d 247, 418 P.2d 265.

At issue in Mendoza was whether a month-to-month tep.

ant could be deprived of possession pursuant to a smal]

elaims court judgment where there had been no right tp

counsel. The California Supreme Court unanimously held

that he could not; and that therefore a statute vesting juris.

diction of unlawful detainer actions in small claims courts

violated due process because it contained no provision for

an automatic stay on appeal and the tenant could be dis.

possessed before the appeal was determined. The small

claims hearing, which is an informal trial before a judge

on adequate notice, California Code Civ. Proc., Sec. 117 ¢

seq., was deemed inadequate to permit dispossession of the

tenant despite the appeal right to a subsequent trial de novo

with counsel.

In Sokol the interest of a telephone subscriber in avoiding

a temporary interruption of service was at stake. The opin-

ion held unconstitutional a regulation which permitted dis-

connection of telephone service on the basis of a police alle-

gation that it was being used illegally and which provided

a hearing only after service was terminated. The court

stated that at a minimum, due process requires that an

ex parte determination of probable cause be made by an

impartial tribunal prior to disconnection, and that the sub-

sequent hearing be promptly provided. 65 C.2d 247, 250,

418 P.2d 265, 271.

Tn the instant case, there can be no impairment of a vital

government function, such as law enforcement, which was

involved in Sokol. On the other hand, the interest of a eate-

gorical aid recipient in continued receipt of aid pending an

adequate hearing is far greater than the interest in con-

tinuous telephone service and is at least as great as the

interest of the tenant in possession. The inability of the

wrongfully terminated categorical aid recipient to pay his

rent subjects him to an unlawful detainer suit to which he

will have no defense, and to subsequent eviction. Calif. Code

Civ. Proc., Sec. 1159 et seq. His inability to pay utility bills

will result in disconnection of telephone, gas and electricity.

Yet PSS 44-325.43 contains no provision under any circum-

stances for a stay of decision pending an adequate hearing,

such as the California Legislature added to the statute after

Mendoza to render it constitutional. Calif. Code Civ. Proc.,

Sec. 117 j (Calif. Stats. 1959, ch. 1982, p. 4588) Therefore,

even when a recipient appeals in good faith, as evidenced

by the filing of the sworn statement required by the judg-

ment in McCullough,® the regulation permits termination

of his aid after a so-called “hearing” which provides far less

protection than a small clainis trial before a judge, at issue

in Mendoza, and which does not even afford the most ele-

mentary safeguard of an impartial tribunal which was re-

quired to protect a far less vital interest in Sokol.

So far as amicus can determine, no administrative agency

has ever been permitted to terminate an interest comparable

to that involved here under procedures so utterly lacking

in elementary safeguards.t Even if there are considerations

which permit the relaxation of one or more of the elements

discussed above, (pp. 10-17), no case has been discovered

which approves proceedings lacking all of these basic safe-

guards.

“For the guidance of the parties”, the court in Dizon v.

Alabama State Board of Education (5 Cir. 1961) 294 F.2d

150, 158, cert. den. 368 U.S. 930, set forth its views “on the

——_——_

*See footnote 1, p. 1, supra, and text thereto.

tAppendix B describes the rules of procedure governing proceed-

ings which are used by a representative group of administrative

agencies in acting to revoke or suspend a license or privilege granted

to an individual.

nature of the notice and hearing required by due proces

prior to expulsion from a state college or university.” (Rp.

phasis added). The views expressed were dictum and were

expressly limited to the facts of the particular case.

are instructive however. The court specifically rejected the

idea that “an informal interview with an administrative

authority” was a sufficient hearing prior to expulsion. While

it did not require a full trial-type hearing including the

right to cross-examine witnesses, this was because “[s]uch

a hearing, with the attending publicity and disturbance of

college activities, might be detrimental to the college’s edy.

cational atmosphere and impractical to carry out.” 294 F.94

at 159.

It hardly needs to be stated that categorical aid recipients

are not subject to the same disciplinary requirements as

college students, (see Parrish v. Civil Service Commission

(1966) 66 C.2d 260, 425 P.2d 223) and that an adequate

hearing provided before termination of benefits will entail

no disruption of the Welfare Department’s functions. The

receipt of categorical aid benefits pending a hearing cannot

be dismissed as a lesser interest than attendance at a tax

supported college.

On the other hand, considered essential by the Dizon

court were: notice containing a statement of the specific

charges and grounds, a report to the student including the

names of all witnesses and the facts to which they testify,

an opportunity to hear both sides in considerable detail

including an opportunity to present a defense with oral

testimony and written affidavits, and a report on the findings

of the hearing. In short, the court suggests that the rudi-

ments of an adversary system should be preserved as much

as possible without encroaching upon the legitimate interest

of the governmental agency involved.

It simply makes sense that where one element of judicial

practice has been omitted from administrative adjudica-

tions, the provision of compensating safeguards is all the

more necessary. I.C.C. v. Lowisville € N. R. Co. (1912) 227

US. 88, 93; Shively v. Stewart (1966) 65 C.2d 475, 480, 421

P.2d 65.

It is sometimes suggested that welfare recipients are not

entitled to the same due process as other more fortunate

citizens because there is no constitutional right to receive

such assistance.

Whether or not there exists a vested right to public

assistance benefits, the requirements of procedural due

process must be met before such benefits may be with-

drewn. Courts have explicitly rejected the view that ade-

quate procedural safeguards are required only when vested

or constitutional rights are at stake and have required

hearings to protect the interest of a student in remaining

in a tax-supported university, Dixon v. Alabama State

Board of Education (5 Cir. 1961) 294 F.2d 150, 156; Gold-

berg v. Regents of the University of California (1967) 248

C.A.2d 867, 57 Cal. Rptr. 463; the interest of an applicant

for or holder of a business license; Hornsby v. Allen (5

Cir. 1964) 326 P.2d 605, 609; Fascination Inc. v. Hoover

(1952) 39 C.2d 260, 269, 246 P.2d 656, 661; one’s interest

in employment, Slochower v. Board of Education (1956)

350 U.S. 551; Greene v. McElroy (1959) 360 U.S. 474; and

one’s interest in doing business with a government agency

Gonzalez v. Freeman (D.C. Cir. 1964) 334 F.2d 570, 574. As

the court stated in Cafeteria and Restaurant Workers v.

McElroy (1961) 367 U.S. 886, 894, “One may not have a con-

stitutional right to go to Baghdad, but the Government may

not prohibit one from going there unless by means con-

sonant with due process of law.”

Under California law, categorical aid benefits must be

administered promptly and humanely. W & I Code Se

10000. Due process reouires no more. Although the fair

hearing provided by the state to review county action may

satisfy the requirement of statewide supervision, W &l

Code Sec. 10600, it comes too late to satisfy the require

ment of due process. The state is fully able to provide pro.

tection more meaningful than that provided under present

practice. It can either require an adequate hearing on the

county level or provide for a stay of the county’s decision

pending the state “fair hearing.” It does neither, but in.

stead permits benefits to be withdrawn after nothing more

than a summary ex parte determination and an illusory

opportunity to dissuade afterwards. It seeks to minimize

costs rather than injustice. By so doing it can only further

the alienation of society’s most disadvantaged persons

from their Government and the alienation of their Gov-

ernment from its founding principles. As stated by Jack-

son, J.:

“Let it not be overlooked that due process of law is not

for the sole benefit of an accused. It is the best insur.

ance for the Government itself against those blunders

which leave lasting stains on a system of Justice but

which are bound to occur on ex parte consideration.”

Dissenting opinion, Shaughnessy v. United States

(1953) 345 U.S. 206, 224-225.

ll. The Notice and Informal Conference Provided by the Cha-

lenged Regulation Prior to Termination of Categorical Aid

Benefits by a County Welware Department Do Not Afford the

Protection Required by the California Legislature.

California conceded in McCullough® that the requirement

of the W & I Code that benefits under the categorical aid

*See footnote 1, p. 1, supra, and text thereto.

may be withdrawn “for cause”+ carries with it

the right to a hearing pricr to actual withdrawal. (Appel-

jant’s Opening Brief, page 16) Ratliff v. Lampton (1948)

99 (1.2 226, 195 P.2d 792.

In Ratliff, the California Supreme Court held that a

statute authorizing the Department of Motor Vehicles to

revoke a driver’s license for good cause carried with it the

right to a hearing before the Department prior to revoca-

tion despite provision in the statute for a subsequent hear-

ing before the Director of the Department. The decision

rests on the rule, established in a series of prior cases, that

where an agency is required by statute to act for cause, an

affected party must be afforded a hearing prior to action

unless there is a clear showing of a contrary legislative

intent. Carroll v. California Horse Racing Board (1940)

16 C.2d 164, 105 P.2d 110 (suspension of horse trainer’s

license); La Prade v. Department of Water and Power

(1945) 27 C.2d 47, 162 P.2d 13 (civil service discharge) ;

Covert v. State Board of Equalization (1946) 29 C.2d 125,

173 P.2d 545 (liquor license revocation). The court in Ratliff

stated :

“The fact that the Vehicle Code provided for an

administrative review subsequent to revocation does

not alter this rule. We should not imply legislative in-

tent to deprive a person of his license without a prior

opportunity to be heard unless compelled to do so by

the plain language of the statute, regardless of whether

+The county must have cause to cancel, suspend or revoke aid

in the Aid to Families with Dependent Children, Old Age Security,

and Aid to Blind programs. W & I Code Sec. 11458, 12200, and

12700 respectively. The provision of W. & I. Code Sec. 13750 per-

mitting the county to cancel, suspend or revoke Aid to Disabled

Benefits ‘‘after investigation’’ imposes the same hearing require-

ment as the ‘‘for cause’’ provisions of the other sections. See Steen

v. Board of Civil Service Commissioners (1945) 26 C.2d 716, 160

P.2d 816, ‘‘The words ‘hearing’ and ‘investigation’ may mean the

el Ratlif v. Lampton (1948) 32 C.2d 226, 231, 195 P.2d

there is a right to administrative review after the reyo.

cation.” 32 C.2d at 230, 195 P.2d at 795.

An identical statutory scheme manifests the Legisl,.

ture’s intent to require a hearing prior to action in the

instant case. The county is required to act for cause or

after investigation in terminating aid, and a hearing syb.

sequent to action is provided before the Director of the

State Department of Social Welfare. W. & I. Code See

10950 et seq.

The District Court held that PSS 44-325.43 meets the

requirement of a hearing prior to the withdrawal of bene.

fits. The regulation provides that an initial decision to

withhold or terminate benefits is made by administrative

personnel in the County Department on the basis of eyi-

dence which is presented and reviewed ex parte and which

may be totally hearsay, circumstantial or untested opinion.

It permits the county to give the affected recipient as little

as three days’ notice of the decision to withdraw benefits

and requires that the caseworker, an eligibility worker or

other unspecified person in the county department be avail-

able for an informal conference with the recipient. At the

conference, the recipient is confronted for the first time

with the evidence on which the withholding action is based

and may provide any explanation or information he may

wish in support of his eligibility. The decision to withhold

benefits takes effect automatically unless as a result of the

informal conference or on some other ground, the county

department reverses itself. It is clear from Ratliff and the

eases on which it relies that the statutory requirement that

welfare benefits be terminated for cause carries with it the

right to a procedurally adequate hearing prior to with-

drawal of benefits regardless of the existence of subsequent

review.

Steen v. Board of Civil Service Commissioners, (1945)

96 C.2d 716, 160 P.2d 816, and the other cases relied on in

Ratliff, established beyond doubt that when an agency may

act for cause only, it must provide a hearing subject to the

procedural and evidentiary rules normally associated with

the term and not left to the unfettered discretion of the

agency.

In Steen, the court specifically disapproved a statement

ina prior case that the conduct of a hearing and the class

of evidence to be heard were matters of administrative dis-

eretion and that nothing more was required than that the

affected party “be permitted to produce his evidence”. The

court stated that this was too permissive and that “a hear-

ing is required with all that the term implies”, where a

board is required to “investigate” a civil service discharge.

96 §.2d at 725, 160 P.2d at 821.

As to the evidence required to support an administrative

determination of cause, three of the cases principally relied

on in Ratliff cite the rule established in Walker v. City of

San Gabriel (1942) 20 C.2d 879, 129 P.2d 349, that hearsay

alone cannot support an administrative decision. Steen v.

Board of Civil Service Commissioners (1945) 26 C.2d 716,

727; 160 P.2d 816, 822; La Prade v. Department of Water

and Power (1945) 27 C.2d 47, 51; 162 P.2d 13, 15; Covert v.

State Board of Equalization (1946) 29 C.2d 125, 173 P.2d

545. The court in Steen ruled that the petitioner was denied

a hearing where the only evidence introduced in support

of the administrative decision was an unsworn and unveri-

fied investigation report. 26 C.2d at 727, 160 P.2d at 822.

In La Prade, supra, the court stated that even if an

investigation report is competent evidence, no hearing is

had unless the report “is introduced into evidence and the

accused is given an opportunity to cross-examine the maker

thereof and refute it.” 27 C.2d at 52, 162 P.2d at 16.

Although the court in Ratliff, supra, indicated that the

hearing prior to action might be less formal than the gu.

sequent hearing, it did not sanction a conference subject

to no procedural or decisional rules whatever. Procedures

virtually identical to those provided by PSS 44-325.43

as a practical matter, undoubtedly available in Ratliff algo,

since the statute required ten days notice prior to the

revocation of a license. During this period, administrative

Officials were presumably available and willing to inform

the licensee of the basis of their proposed action and to

listen to any explanation or information he wished to pro.

vide. Yet it was not even contended that the opportunity

for informal review afforded by the ten-day notice period

constituted the hearing required by statute.

The use of an informal conference to meet a statutory

requirement that administrative action be “for cause only”

was specifically rejected in Keenan v. S.F. Unified School

District (1950) 34 C.2d 708, 214 P.2d 382. The court stated

that “informal interviews with administrative officers . , .

did not constitute a hearing contemplated by the statute.”

34 C.2d at 715, 214 P.2d at 386.

PSS 44-325.43 provides no more than the informal inter-

view with administrative personnel which was specifically

found not to be a hearing in Keenan and which was pre-

sumably available with an even greater notice period in

Ratliff. It permits a decision of ineligibility to be rendered

solely on the basis of an investigator’s hearsay report,

which California courts have consistently held to be a denial

of a hearing. Walker v. City of San Gabriel (1942) 20 C.2d

879, 129 P.2d 349; Steen v. Board of Civil Service Commis-

stoners (1945) 26 C.2d 716, 160 P.2d 816; La Prade ».

Department of Water and Power (1945) 27 C.2d 47, 162

P.2d 13. In failing to specify the nature of the conference,

the regulation vests in the county the same unlimited dis-

eretion which Steen specifically disapproved. Far from

meeting the requirements of a hearing under California

law, the regulation exhibits the same defects which have

rendered other procedures inadequate to meet statutory

requirements identical to those presented here.

Further indicative of the legislative intent to require

greater safeguards than the regulation provides prior to

termination is the length of time permitted by statute for

the rendition of the state “fair hearing decision”. Although

newly adopted regulations of the State Department of

Social Welfare require such a decision within sixty days

after the hearing, (Operations Manual, 22-043 through 22-

065, (see also, Federal Handbook § 6200(j)), the Legisla-

ture has explicitly permitted 180 days to elapse before such

a decision is rendered. W.&I. Code Sec. 10950 et seq. The

length of this statutory time limit provides a clear indice

tion that in requiring cause for the withdrawal of benefits.

the Legislature must have intended to provide a hearing

fully adequate to protect the aid recipient during the six

months permitted for subsequent review.

The hearing required by statute may afford greater safe-

guards than due process requires. In Ratliff v. Lampton,

(1948) 32 C.2d 226, 232, 195 P.2d 792, 796, the court specifi-

cally stated that while the summary revocation of a driver’s

license might be constitutionally permissible, this “cannot

be used to imply a legislative intent to deny [the right to a

hearing] before the revocation.” Later the Constitution was

held not to require a hearing, Escobedo v. State of Calli-

fornia (1950) 35 C.2d 870, 222 P.2d 1, leaving Ratliff to

stand for the proposition that “for canse” in a statute means

more than “due process” in the U.S. Constitution.

CONCLUSION

For the foregoing reasons this Court should

judgment of dismissal rendered by the District Court!

the class. It should make clear that informal proce

have a place in the system, but that such procedures!

due process when a proceeding has become adversag

nature. It should make clear that aid to welfare recipi

may not be terminated or withheld without an adeg

hearing, and that such a hearing must include all the;

guards that are customarily available in ee y

ceedings, including adequate notice, right to coun .

frontation and cross examiaation, a record of the #

a decision based on the evidence by an impartial

and a decision on the merits.

Dated,

Oakland, California, June 20, 1969

Respectfully submitted,

Tuomas L. Fixe

Tomas SCHNEIDER

Burton DanzicEer

Davin Nawt

Attorneys for Amicus

Legal Aid Society of

Alameda County

(Appendices follow)

Appendix A

905 CHANGES IN AMOUNT OF PAYMENT 44-325

When Change is Effective

"change in grant, or a discontinuance of aid the appro-

| priate change or discontinuance is to be made effective

~as soon as possible. (See Sections 44-333.12, Adjustment

| Period, and 44-331.1, Adjustment of Underpayment by

3 | Authorization of Retroactive Aid.)

au If the change in the aid payment (as determined

in accord with PSS Section 44-315.5), amounts to

less than $2 per month, such change is not to be

made.

| 12 Decrease: Where the required change is a decrease

> of $2 or less, it shall be effective not later than the

second month following that in which the changed

circumstances were reported, and no adjustment is

to be made for overpayment of $2 or less in the

month of reporting or in the following month.

» 13 Increase: When the change in circumstances will

continue for only one or two months, and the amount

of the increase would be $2 or less, no change is

3 made in the continuing authorization.

2 Change i in Income or Need

_ 21 Change and Amount Known in Advance

‘ If a change in income or need, including the amount,

is known in advance, any necessary change in the

amount of payment is made effective with the month

in which the changed circumstances will occur.

aroc §«=—- -22,-—« Change Known in Advance But Amount Not Kny

SRS=

3 Discontinuance

4A Withheld Payment

Appendiz

.221 Concurrent Payment and Budget Periods

When it is known that income will start i 4,

next month but the exact amount is not knoy,

or when income is variable in amount, ;

estimate of the expected income shall be ma;

on the basis of available information, fo, 4,

purpose of determining the next current mony

aid payment. If the estimate indicates ineligi

bility for any grant, aid may be withheld pen

ing verification of actual income (see Sectig,

421 below). If the estimated income proves i;

be incorrect when actual income is reporte,

corrective action is taken to adjust the pay.

ment within the limitations of PSS Seetioy

44-331 and 44-335.

.222 Budget Planning Period with Subsequent Pay.

ment Period

Actual income received in the Planning Perioj

is reported and reflected in the subsequey

payment.

If a recipient’s circumstances change to the extent that

he no longer meets the eligibility requirements, aid

shall be discontinued effective the last day of the month

for which the last payment was made. (See PSS Se.

tion 44-315 re appropriate action when the recipient is

no longer eligible to a cash grant but remains eligible

to medical assistance as a medically needy person.)

41 Withheld Payment—Defined

A withheld payment is one which is held beyond the

usual delivery date while information concerning

Appendix 3

needs, income or basic eligibility is investigated,

subject to Section 44-325.43.

42 Limitations on and Requirements for Withholding

u of Aid Payment

t, Subject to the following limitations, aid payments

nal shall be withheld when further investigation is

ir tha necessary to determine continuing eligibility.

421 Recipients should have the assurance of regu-

lig lar and continued aid payment without inter-

pend ruption or delay. Accordingly, an aid payment

may be withheld beyond the usual delivery

date only when evidence which is both sub-

stantial in nature and reliable in source is

Pa received by the county, indicating:

ng a. Probable ineligibility of the recipient, or

Pr b. A probable overpayment has occurred or is

J occurring which can be adjusted only if aid

ie payment is withheld.

venti y 422 Aid payment shall not be withheld pending

in ascertainment of increases in federal benefits

4 such as social security or increases in benefits

payable by a public agency. (W&IC Section

that 11014.)

aid

onth 423 Aid payment shall not be withheld because of

See. actual or probable changes in need or income

at is when it appears that any resulting overpay-

“ible ment can be adjusted in the grant(s) for a

subsequent month or months. (See PSS Sec-

tion 44-335.) (If a recipient will be disadvan-

taged by delaying the adjustment another

month, the county should discuss with the

recipient the desirability of an immediate cur-

Appendtz

rent cash adjustment for the overpayment

lieu of the delayed grant adjustment.)

.424 An initial payment shall not be withheld

yond the month for which it was authoring

.425 The first installment of a month’s AFDC 4ij

payment may be withheld if the county's ey.

uation of circumstances indicates probabh

ineligibility. If the question cannot be resolyaj

by the end of the first semi-monthly perioj

following that in which it arose, the secon

payment is always withheld.

Unless the first installment of a month's aij

payment has been withheld, the second install.

ment is never withheld except when:

a. Probable or actual ineligibility for the firs

installment was discovered too late to holi

that payment, or

b. Probable overpayment is occurring whic

can be adjusted only if the second install

ment is withheld or if the recipient woul

be seriously disadvantaged by the delay

adjustment.

For counties on the Subsequent Payment Pla

the second installment is never withheld bv.

cause of changes occurring within the current

payment period.

43 Notification to Recipient When Aid Payment

Withheld

The recipient, the parent or other person respon

sible for the child in AFDC, shall be notified, i

writing, immediately upon the initial decision being

made to withhold a warrant beyond its usual deliv

Be2g2ee

first

Appendix 5

ery date for any reason other than death, and in

no case less than three (3) mail delivery days prior

to the usual delivery date of the warrant to the

recipient. The county shall give such notice as it

has reason to believe will be effective including, if

necessary, a home call by appropriate personnel.

Form ABCD 239, Notice of Action, or a substitute

form, may be used for this purpose. Every notifi-

eation shall include:

431

432

433

434

A statement setting forth the proposed action

and the grounds therefor, together with what

information, if any, is needed or action re-

quired to re-establish eligibility or to deter-

mine a correct grant.

Assurance that prompt investigation is being

made; that the withheld warrant will be de-

livered as soon as there is eligibility to re-

ceive it; and that the evidence or other infor-

mation which brought about the withholding

action will be freely discussed with the re-

cipient, parent, or other person, if he so de-

sires (see Section .434 below).

A statement of whether, if aid is withheld,

the recipient will or will not continue to be

certified for medical assistance during the

month aid is withheld.

A statement that the recipient, parent, or

other person may have the opportunity to

meet with his caseworker, an eligibility work-

er, or another responsible person in the county

department, at a specified time, or during a

given time period which shall not exceed three

44 Investigation and Time Limitations

441

442

Appendiz

(3) working days, and the last day of whig

shall be at least one (1) day prior to the

usual delivery date of the warrant, and at

a place specifically designated in order to

enable the recipient, parent, or other persop:

(a) To learn the nature and extent of the jp.

formation on which the withholding actin,

is based ;

(b) To provide any explanation or informa.

tion, including, but not limited to that ge.

scribed in the notification pursuant t

Section .431 above;

for purposes of clarification and, where

possible, resolution.

Evidence raising doubt concerning eligibility

or the correctness of grant is to be evaluated,

and any needed investigation initiated and

completed promptly, regardless of whether

there is basis for withholding an aid payment

Such investigation must be completed ani

appropriate action with respect to the grant

taken, within not more than 30 calendar days

after the date on which the information whieh

raised doubt concerning eligibility or the grant

was received by the county. (See Section 40

155.2 regarding Methods of Investigation.)

Aid payment for a second month may be with-

held when the investigation is completed and

the facts regarding continuing eligibility or

Appendix 7

correctness of grant are established too late

in the 30-day period:

a. To permit any necessary discontinuance of

aid prior to the second month unless the

aid payment is withheld, or

b. To permit necessary adjustment in the aid

payment where eligibility continues but to

a lesser amount, and delay in the adjust-

ment for another month would result in

overpayment which could not be adjusted.

When aid is withheld for a second month the

withheld warrants shall be reissued in the

correct amount and delivered to the recipient

within a maximum of ten calendar davs fol-

lowing the normal due date for the second

withheld warrant, or delivered to the recipi-

ient and a current cash adjustment obtained

from him. (See Section 44-333.12.)

45 Action on Withheld Aid Payment Following Inves-

tigation

451

452

Investigation Establishes Recipient Eligible

to Receive Aid and That Withheld Payment

Was in Correct Amount.

The withheld payment shall be delivered im-

mediately and aid payment continued. (If

the recipient was eligible on the first day of

the month aid shall be paid for the entire

month. )

Investigation Establishes Eligibility but That

Aid should Be Paid in An Amount Less Than

the Withheld Payment,

Appendiz

The withheld payment shall be delivered, pro.

vided any resulting overpayment can be ad.

justed within the adjustment period. In such

ease at the time the withheld warrant jg 4.

livered, the recipient shall be informed regan.

ing the future grant adjustment(s) which mag

be made. If the resulting overpayment canno

be adjusted in the adjustment period, th

withheld payment shall be canceled and p.

issued and any indicated change made in th

continuing grant.

Investigation Establishes Recipient Was Ip.

eligible to Withheld Payment but Continn

Eligible to Aid.

The withheld payment is canceled and sud

cancellation is not considered an interruption

in the authorization for payment.

Investigation Establishes Ineligibility

Withheld Payment and to Continuing Aid.

a. Aid was withheld because of probable in

eligibility.

Both the cash grant payment and certi

cation for medical assistance are discon

tinued retroactively effective the last da

of the last month for which a cash gran

payment was made. The withheld

grant payment is canceled.

b. Aid was withheld solely for the purpos

of determining the amount of aid to whic

the recipient was eligible but he subs

quently was found to be ineligible.

Appendix 9

There are two discontinuance dates both

which must be entered on the document

discontinuing aid.

The cash grant payment is discontinued

retroactively effective the last day of the

last month for which a cash grant payment

was made and the withheld payment is can-

celed.

Medical assistance is discontinued effective

the last day of the last month for which

aid was withheld. (This later discontinu-

ance date is necessary because such recipi-

hh. ent continued to be certified for medical

aes assistance as a public assistance recipient

during the period aid was withheld.)

SFzFSBRBAPERB

455 Investigation Not Completed at End of 30

Days.

a. Preponderance of Evidence Indicates Re-

cipient Is Ineligible.

1 Aid is discontinued in the manner specified

e in in Section .454 above.

b. Basic Eligibility Not in Question but There

rtif is Still an Unresolved Question Regarding

eon the Amount of Aid to Which Recipient is

day Eligible.

rant The withheld warrant and, if indicated,

—_ the continuing grant are adjusted on the

basis of the best available information and

the payments issued to the recipient, the

investigation continues and when com-

pleted appropriate adjustment is made.

Appendix B

A COMPARISON OF CERTAIN PROCEDURES

OF SELECTED ADMINISTRATIVE AGENCIES

this appendix describes the Rules of Procedure govern-

‘proceedings which are used by a representative group

‘administrative agencies in acting to revoke or suspend

license or privilege granted to an individual. The ap-

ndix does not purport to set out all the procedural rules

fall federal and state agencies. Rather it seeks to demon-

c » that many decision-making administrative bodies

erally have more procedural safeguards integrated into

sir hearings on the revocation of privileges than those

hich are provided by the California State Department of

wial Welfare in hearings on the termination of welfare

nefits.

The agencies referred to and the functions they per-

rm subject to the procedures outlined, and the abbrevia-

ons used hereinafter are the following:

Welfare:

The County Welfare Department under the regulations

the California State Department of Social Welfare, Pub-

§ Social Services Manual, Section 44-325.43, when termi-

ating welfare assistance.

‘Cal. A.P.A.:

% he more than 44 agencies subject to the California Ad-

inistrative Procedure Act (Govt. Code Sections 11500

f seq.) when exercising the power to revoke licenses or

mminate privileges.

Cal. Civil Service:

"The California State Personnel Board when dismissing

‘civil service employee for cause, (Govt. Code Sections

570 and 19500.)

School Boards:

= A) MATE DO

12 Appendiz

Governing Boards of the school districts in California

when dismissing permanent teachers. (Ed. Code Seetion

13404.) (When temporary teachers are dismissed for calise

and request a hearing, the California Administrative Pro.

cedures Act (Govt. Code Sections 11500 et seq.) applies.)

D.M.V.:

California Department of Motor Vehicles, when sys.

pending or revoking the privilege of any person to operate

a motor vehicle. (Vehicle Code Section 13800.)

U.S.A.P.A.:

Agencies subject to the Federal Administrative Pro.

cedure Act, 5 U.S.C. Section 551; i.e., all agency action of

the Atomic Energy Commission (42 U.S.C. Section 2231);

procedure of the Detention Review Board (50 U.S.C. See.

tion 818); rules governing employment in executive, ad-

ministrative, professional or outside salesman capacities

under the Fair Labor Standards Act (29 U.S.C. Section

213[a]); administrative proceedings conducted under the

Farm Labor Contractor Registration Act; hearings under

the Federal Communications Act (47 U.S.C. Section 409);

agency action taken under the Helium Act (50 U.S.C. See-

tion 167[h]); rules and orders of federal departments and

agencies issued to prohibit exclusion of persons from par-

ticipation in federally assisted programs because of race,

eolor or national origin (42 U.S.C. Section 2000[d-2]) ; rev-

ocation of seaman’s documents by the Secretary of Trans-

portation (46 U.S.C. Section 239) ; conduct of proceedings

by the Subversive Activities Control Board (50 U.S.C, See-

tion 795) ; proceedings under the Uniform Time Act of 1966

(15 U.S.C. Section 266); Walsh-Healy Act (41 U.S.C. See-

tion 43(a).

C.A.B.:

Appendiz 13

Civil Aeronautics Board (Federal Aviation Administra-

tor) when suspending or revoking any navigation certifi-

cate. (49 U.S.C. Section 1429.)

Defense Security:

U.S. Department of Defense, Industrial Personnel Secu-

rity Clearance Program, when revoking the security clear-

ance of a person employed in private industry. (32 C.F.R.

Sections 155.7-155.9 (1968) )

Immigration :

United States Immigration Authority when determining

whether an alien should be deported. (8 U.S.C. Section 1252

(1964).)

1, HOW MUCH MINIMUM NOTICE OF THE ACTION IS THE INDIVIDUAL

AGAINST WHOM SUCH ACTION IS TO BE TAKEN ENTITLED TO?

Agency Answer Citation

Welfare: 3 days

Cal, A.P.A.: 25 days Gov. Code 11505(b) and

11509

Cal, Civil Service : 15 days after action effective See Gov. Code 19574

School Boards: 30 days plus Ed. C. 13404 and 13412

DM.V.: 20 days; except where physi- Veh. C, 14107, 14100 and

cal & mental health of the 13953.

licensee requires immediate

action.

US. A.P.A.: Timely notice 80 Stat. 384 (1966); 5

U.S.C. 554(b) (Supp. II,

1967).

CAB.: 15 days plus adequate notice 72 Stat. 779 (1958); 49

U.S.C. 1429 (1964); 14

C.F.R. Sec. 13.55 (1968) ;

14 C.F.R. Sec. 13.19(c)

(4) (1968).

Defense Security : 20 days plus reasonable time 32 C.F.R. 155.7(a) (7)

to prepare 32 C.F.R. 155.7(a) (8)

Immigration: Reasonable under all the cir- 66 Stat. 209 (1952); 8

cumstances U.8.C. 1252(b) (1)

(1964)

14 Appendiz

2. IS THE INDIVIDUAL AGAINST WHOM ACTION IS BEING TAKEN EN.

TITLED TO BE REPRESENTED BY COUNSEL AT THE HEARING?

Agency Answer Citation

Welfare: Not specified; presumably

yes

Cal, A.P.A.: Yes Gov. C. 11509

Cal. Civil Service: Yes See Gov. C. 195741

School Boards: Yes Ed. C. 13425

D.M.V.: Yes Veh, C. 14112

U.S. A.P.A.: Yes 80 Stat. 385 (1966); 5

U.8.C. 555(b) (Supp, Il,

1967).

C.A.B.: Yes 14 C.F.R. 13.33 (1968),

Defense Security: Yes 32 O.F.R. 155.7(a) (8)

(1968).

Immigration: Yes 66 Stat. 209 (1952); 8

U.8.0. 1252(b) (2)

(1964).

3. IS THE INDIVIDUAL AGAINST WHOM ACTION IS BEING TAKEN EN.

TITLED TO HAVE WITNESSES SUBPOENAED TO TESTIFY IN HIS BEHALF?

Agency Answer Citation

Welfare: No

Cal, A.P.A.: Yes Gov. C. 11510(a)

Cal, Civil Service: Yes Gov. C. 19581

School Boards: Yes Ed, C. 13417, 13425

D.M.V.: Yes Veh, C, 14112

U.S. A.P.A.: Yes 80 Stat. 385 (1966); 5

U.8.C, 555(d) (Supp. I,

1967).

C.A.B.: Yes 14 C.F.R. 13.57 (1968),

Defense Security: Yes 32 C.F.R, 155.7(b) (3)

(1968).

Immigration: Yes 66 Stat. 198 (1952); 8

U.8.C. 1225(a) (1964),

Appendix 15

4 1s THE INDIVIDUAL AGAINST WHOM ACTION IS BEING TAKEN EN-

TITLED TO CROSS-EXAMINE WITNESSES TESTIFYING AGAINST HIM?

Agency Answer Citation

‘ No

tte Yes Gov. C. 11513(b).

Cal, Civil Service: Yes Gov. C. 19580.

gchool Boards: Yes Ed, C. 13417, 13425.

DMV.: Yes Veh. C. 14112.

US. A.P.A.: Yes 80 Stat. 386 (1966); 5

U.8.C. 556(d) (Supp. I,

1967).

CAB.: Yes 14 C.F.R. 13.59 (1968).

Defense Security: Yes, except if revealing in- 32 C.F.R. 155.7(a) (8),

former’s identity would 155.7(d-5) (1968).

harm national interest.

Immigration: Yes 66 Stat. 209 (1952); 8

U.8.C. 1252(b) (3)

(1964).

5, DOES THE GOVERNING REGULATION SPECIFY THAT THE PERSON ACT-

ING AS REFEREE OR JUDGE AT THE HEARING MUST NOT HAVE HAD

ANY PRIOR CONNECTION WITH THE CASE?

Agency Answer Citation

Welfare: No

Cal, A.P.A.: Yes, ordinarily Gov. C, 11512(c)

Cal, Civil Service: Not specified

School Boards: Yes. Hearing is in state su- Ed. C, 13412, 13418.

perior court,

D.M.V.: Yes Veh, C, 14107.

US. A.P.A.: Yes 80 Stat. 384 (1966); 5

U.S.C, 554(d) (Supp. II,

1967).

CAB: Probably 14 C.F.R. 13.39 (1968).

Defense Security: Yes 32 C.F.R. 155.6(f)

(1968).

Immigration: Yes 66 Stat. 209 (1952); 8

U.S.C. 1252(b) (1964).

D.M.V.:

US. A.P.A.:

C.A.B.:

Defense Security:

Immigration :

7. 1S THE ADVERSE ACTION STAYED BY AN APPEAL TO A HIGHER

OF THE AGENCY OR TO A JUDICIAL TRIBUNAL?

Agency

Welfare:

Cal. A.P.A.:

Cal. Civil Service:

School Boards:

D.M.V.:

U.B. A.P.A.:

C.ALB.:

Defense Security:

Immigration :

Appendiz

THE DECISION TO REVOKE THE PRIVILEGE TAKE

THE INDIVIDUAL SUBJECT TO THE ADVERSE ACTION

Yes, where charges filed by

an individual.

Yes, except for immoral con-

duct, conviction of felony,

etc.; but permanent teacher

is paid for 30 days.

Yes, except where the physi-

cal or mental health of the

licensee requires immediate

action.

Yes

Yes, except in cases of air

safety emergencies.

Yes, except where delay

would pose an immetiate

threat to the national inter-

est.

Yes

Answer

No, except for the trial

court’s judgment and man-

date in McCullough v. Ter-

Not applicable; Director

makes decision.

Yes, on motion.

Yes, except in cases of air

safety emergencies,

Yes, upon examiner’s deter-

mination.

Yes

72 Stat. 779 (1988);

U.S.C. 1429 (sen F

32 C.F.R. 155.7(a)

155.8 (1968).

66 Stat. 208 (

U.8.C. 1252(c) (

Citation

Gov. C. 11519, 11521.

Gov. C, 19574. 4

80 Stat, 393 (1966);

(1967).

72 Stat. 779 (1958);

U.S.C. 1429 (1964).

32 C.F.R. (1968);

(e) (1).

8 C.F.R. 6.6 (1968),

Appendix C

Court of Appeal of the State of California

First Appellate District—Division Three

1 Civil No. 25830

Mary McCullough, et al.,

Plaintiffs and Respondents,

Hrayr Terzian, et al.,

Defendants and Appellants.

OPPOSITION TO INTRODUCTION OF

ADDITIONAL EVIDENCE

Respondent by letter dated June 10, 1969 to the Honor-

Lawrence R. Elkington, Clerk of the Court of Appeal,

rst Appellate District enclosed “additional documentary

nce to be presented to the Court for addition to the

cord as a supplement to Respondents’ Motion for Leave

Offer Additional Documentary Evidence, set for hearing

ane 18, 1969 at 10 o’clock a.m.”

18 Appendiz

Appellant opposes this latest offer on the following

grounds:

1. Such offer does not comply with Rule 41 of Californi,

Appellate Rules of Court which requires that not only th

notice but the “accompanying papers shall be served and

filed at least 15 days before the date designated for hearing

of the motion.”

2. The purported evidence consisting of a chart and

expianatory correspondence, is irrelevant and immaterial

—cost to the state has not been put in issue; in addition

the material does not purport to be complete.

Submission of this material and the initial offer of the

fair hearing decisions are solely for the purpose of obfus.

cating the real issue before the court, i.e., does the pre.

termination of aid procedures meet minimum due process

requirements.

Dated: June 12, 1969

Tuomas C. Lyncu

Attorney General

EvizaBETH PALMER

Deputy Attorney G eral

Attorneys for Defendants

and Appellants

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