# Amicus Curiae Brief — Wheeler v. Montgomery

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0163%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1970
- **Citation:** 397 U.S. 280

## Text

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

A.

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

10
10

12

13

14

16

17

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

A

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: 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=

2

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

-
a

zs

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;

(c) To discuss the entire matter informally
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,

ee

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).

Ps

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
Ed. C, 13404, 13436, ©
Veh. C, 14110, 14111, ©

80 Stat, 393 (1966);
U.S.C. 705 (Supp. I, ©
(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,
v.
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0163%3A06. Public record. Not legal advice.