Appendix — Rosado v. Wyman

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No. 540

JULIA ROSADO, ET AL.,

Petitioners,

- against -

| GEORGE K. WYMAN, ETC., ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

| TABLE OF CONTENTS

A. Relevant Docket Entries ...............--005- 1

B. Complaint (Document No.1) .............005: 6

C. Order to Show Cause (Document No. 3)........... 25

D. Notice of Defendnats’ Motion to Convene Three

| Judge Court (Document No. 6)..............-5: 26

E. Telegram from Judge Weinstein to Hon. Robert

Finch, Secretary, Health, Education & Welfare

Gheenneh Fb GD awk vk eo nan hones wane cece 27

F. Telegram from Judge Weinstein to Hon. John

Mitchell, Attorney General (Document No. 9)....... 28

mE ANE? SAORI, DAES ALOE IES

(ii)

. Notice of Defendants’ Motion to Join Additional

ert res eee eee 29

. Letter from U.S. Attorney to Judge Weinstein

CI ee Noa WEN AS bk oe so de oes 30

. Revised Memorandum and Order of Judge Wein-

stein on Standing and Necessary Party (Original

Ss WI Us Son a bu 6 c's 8 66.0454 was 31

. Transcript of Proceedings of April 23, 1969 Before

Judge Weinstein (Testimony of Mitchell Ginsberg

and Jack Goldberg) (Document No.61) ........--- 37

. Letter from Judge Weinstein to Chief Judge

Lumbard (Document No. 20) ..............--- 71

. Memorandum and Order of Judge Weinstein

Convening a Three Judge Court and Issuing a

Temporary Restraining Order (Document No. 21) ... 72

. Temporary Restraining Order Pending Determina-

tion by Three Judge Court (Document No. 19) ..... 78

. Designation of Three Judge Court by Chief Judge

Lumbard (Document No. 22) ...........-2-4-- 79

. Defendants’ Answer (Document No. 28)........... 81

. Notice of Defendants’ Motion for Summary Judg-

ment and Statement Pursuant to Rule 9(g)

KS re eS Ce ee eee ee eee 86

. Affidavit of George W. Chesbro in Support of

Defendants’ Motion for Summary Judgment (and

Exhibits A, C, F, G, I, J, K Thereto) (Document

ke Perr ey errr re eco eT Cee 87

. Notice of Plaintiffs’ Motion for Summary Judgment

and Statement Pursuant to Rule 9(g) (Document

= BAe Tree ye or eye eee eee eee 120

. Tables III, IV, V from “Welfare in Long Island”

(Long Island Association of Commerce and

Industry) (Document No. 36) .........---+-+5- 125

. Defendants’ Supplemental Statement Pursuant to

Rule 9(g) (Document No. 38) ........----+505- 128

. Letter from Lee A. Albert to Judges Moore, Mishler

and Weinstein (Document No. 51)

BB.

cc.

DD.

EE.

FF.

See R A A

(iii)

Letter from Philip Weinberg to Judge Weinstein

(Document No. 42) ....-.--eeseee ee eerreecee 132

Memorandum and Order of Three Judge Court

Dissolving Itself (Document No. 43) .-.---------- 133

Temporary Restraining Order (Document No. 45)

and Order Granting Preliminary Injunction by '

Judge Weinstein (Document No. 58) ...---------> 137

Letter from George K. Wyman to James Callison ... - - 139

Letter from Lee A. Albert to Judges Moore

Mishler and Weinstein enclosing letter from

George K. Wyman to James Callison with

enclosure (Document No. 73) ..-----++--e++e00> 142

Revised Memorandum of Judge Weinstein Granting

Preliminary Injunction and Summary Judgment

(Original Document Nos. 57, 78) ---------+++7°° 167

Order by Judge Weinstein Granting Permanent

Injunction (Document No. 79) ..-.---+----++-07° 214

Opinion of United States Court of Appeals for the

Second Circuit Vacating Preliminary and Perma-

nent Injunctions, Reversing Summary Judgment

and Affirming Dissolution of Three Judge Court

(Document Nos. 65, 66, 67, [Court of Appeals])...-. 215

Judgment of Court of Appeals for the Second

Circuit (Document No. 68 [Court of Appeals]) ....- 259

Oral Argument of Lee A. Albert on Respond-

ents’ Motion to Convene a Three-Judge Court

on April 18, 1969 Before Judge Weinstein

(Document No. 59)...----2+eseecer etree 260

Transcript of Proceedings of April 23, 1969

Before Judge Weinstein (Testimony of Joseph

H. Louchheim) (Document No. 61) ...---++++++: 272

APPENDIX

A. RELEVANT DOCKET ENTRIES

1969, April 9th: Complaint filed. Summons issued.

1969, April 10th: By Weinstein, J. Order To Show Cause

filed with proof of service thereon why a preliminary in-

junction should not be granted enjoining defendant Wyman,

etc., from taking any steps toward implementing and from

putting into effect the system of “maximum monthly grants”

and schedules of need prescribed by N.Y. Social Services

Law Sec. 131-a, etc. (returnable April 15, 1969 at 10:00 A.M.)

1969, April 15th: Motion and memorandum of law filed,

to convene three-judge court. 4/15/69

1969, April 15th: Before Weinstein, J. — Motion for prelim-

inary injunction etc. adjd to Apr. 18, 1969 at 2:00 P.M.

1969, April 15th: By Weinstein, J. — copy of telegraphic

message sent to Hon. Robert Finch, Secty H.E. — & W.

Washington, D.C. re: preliminary hearing set for 2:00 P.M.

Friday, April 18, 1969, filed.

1969, April 15th: By Weinstein, J. — Copy of telegraphic

message sent to Hon. John Mitchell, Atty Gen., Washington,

D.C. re: preliminary hearing set for 2:00 P.M. April 18, 1969

filed.

1969, April 18th: Before Weinstein, J. — Hearing on motion

to convene three-judge Court — Court grants leave to defts

to move to implead U.S.A. as a party deft — if papers are

served no later than 5:00 P.M. April 21, 1969. Hearing

continued to April 23, 1969 at 2:00 P.M.

1969, April 23rd: Before Weinstein, J. — Hearing on mo-

tion for preliminary injunction etc. resumed — Motion to

dismiss as to National Welfare Organization and City-Wide

Co-ordinating Commission for lack of standing — Case now

to be captioned Rosado v. George K. Wyman — Motion

granted — Motion by State of New York to bring in the

Health Welfare and Education as a party deft — Motion

denied — Hearing continued to April 24, 1969 at 12:00

Noon.

1969, April 23rd: By Weinstein, J. - Memorandum & Or-

der filed (Standing of Organizations) Defts’ motion to dis-

miss as to the two Organizational pltffs for lack of standing

is granted. The Clerk is directed to strike the National

Welfare Rights Organization and Citywide Coordinating

Committee of Welfare Organizations from the caption of

this case. Henceforth, this case should be referred to as

Rosado, et al. v. Wyman, et al. 69-C-355. So ordered. (See

opinion & order)

1969, April 23rd: By Weinstein, J. - Memorandum & Or-

der (Necessary party) filed. Decision rendered, Defts’ mo-

tion to join H.E.W. as a necessary and indispensable party

is denied. So Ordered. (See memo and Order)

1969, April 24th: Before Weinstein, J. — Hearing on pre-

liminary injunction etc. Findings of fact were read into

record by the Court — and renders its decision — Temporary

restraining order granted — and granting motion for 3 judge

Court — Temporary restraining order in effect until 3 Judge

Court convenes — Court will file findings of fact and order

— Hearing concluded.

1969, April 24th: By Weinstein, J. -Temporary Restrain-

ing Order filed. It is ordered that, pending hearing and de- |

termination by a statutory three-judge court deft Wyman

etc. are hereby restrained etc.

1969, April 24th: Copy of letter to Judge Lumbard from

Judge Weinstein dated April 24th, 1969 re: recommend-

ing appointment of a three-judge Court. filed.

1969, April 24th: By Weinstein, J. - Memorandum & Or-

der — Three-Judge Court and Temporary restraining order.

filed. Decision rendered, the defts’ motion for the conven-

ing of a three-judge court and pltffs’ motion for temporary

restraining order are granted. Defts and pltffs are advised

to have their papers seeking summary judgment and all

other relief served and filed on April 29, 1969. The parties

]

——a ee ee enw 8 aM eee —_ Von

are granted until May 2, 1969 to submit reply papers

and briefs. All undecided motions will be referred to the

three-judge court. SO ORDERED. (P/C mailed to attys)

1969, April 25th: By Lumbard, Ch Judge U.S. Court of

Appeals, designating Hon. Jack B. Weinstein, to hear and

determine said cause: Hon. Leonard P. Moore, Hon. Jacob

Mishler. SO ORDERED. (P/C mailed to attys) (copy of

order sent of Judge Mishler, Judge Weinstein, and mailed

to Judge Moore)

1969, April 25th: Motion filed to join additional party.

1969, April 28th: Letter to Judge Weinstein, from U.S.

Dept. of Justice, dated April 23, 1969 filed.

1969, April 30th: Motion filed pursuant to Rule 56, and

defts’ memorandum of law for summary judgment in favor

of defts etc.

1969, April 30th: Answer of defts filed.

1969, April 30th: Motion and pltffs’ memorandum filed

pursuant to Rule 56, for summary judgment in favor of

pitffs and for a permanent injunction etc.

1969, May 2nd: Supplemental statement as to material facts

filed.

1969, May 2nd: Before Moore, C.J. — Mishler, J. — Wein-

stein, J. — Hearing on motion for summary judgment held.

Motion argued — Decision reserved.

1969, May 12th: By L. P. Moore, C. J. — Mishler, J. -

Weinstein, J. — Memorandum & Order filed. It is ordered

that the three-judge court heretofore convened be and is

dissolved and that the matter be and is remanded to the

single judge to whom the complaint was originally presented

for such further proceedings as are appropriate. SO

ORDERED. (See memo & order)(P/C mailed to attys)

1969, May 12th: By Weinstein, J. - Memorandum & Order

filed. The three-judge court in this action has been dissolved

etc. Since the order issued on April 24, 1969, etc. is no

longer in force, a new temporary restraining order in iden-

tical terms will be issued pursuant to Rule 65 etc. So or-

dered. (See memo and order) (P/C mailed to attys)

1969, May 12th: By Weinstein, J. — Temporary Restrain-

ing Order filed, etc.

1969, May 1Sth: Copy of letter to Hon. L. P. Moore,

Mishler, J. Weinstein, J., from Center on Social Welfare by

Lee A. Albert dated May 6, 1969.

1969, May 1Sth: By Weinstein, J. — Memorandum & Or-

der filed, for decision on summary judgment & temporary

injunction. Parties will submit proposed orders for a pre-

liminary injunction by 4:30 P.M. on Fri. May 16, 1969.

(See memo and order)

1969, May |l6th: By Weinstein, J. Order filed pursuant to

this Court’s Order & Memo of May 15, 1969 the temporary

restraining order is incorporated in and shall be a prelimi-

nary injunction adopted pursuant to Rule 65 preliminary

injunction is effective until final decision on the merits of

this case. Pitff shall file security in the sum of $1,000.00.

Defts motion for a stay of this preliminary injunction is

denied (see order attached on file of May 12, 1969) (P/C

mailed to attys)

1969, May 19th: Notice of Appeal filed

1969, June 18th: State administrative materials promulgated

pursuant to section 13l-a submitted by pltffs on June 10,

1969 filed.

1969, June 18th: Before Weinstein, J. — Hearing on mo-

tion for summary judgment held and concluded — Court’s

oral findings of fact and conclusions of law — Motion for

summary judgment granted to plitffs — Enjoins defts from

implementation of Sec. 13la of the Social Service Law as

amended — Denied defts’ motion for a stay of permanent

injunction — Order on oral decision and findings of fact as

modified orally to take effect immediately — Court denied

the stay in all respects upon application by defts. Pitffs to

submit an order for signature at 4:30 P.M. in accordance

with Judge's decision — Court directed defts to file a notice

_ — soiiaeenenieneannaenaial

of appeal before 4:30 P.M. (June 18, 1969) in accordance

with defts objections in the judge’s findings.

1969, June 18th: By Weinstein, J. — Memorandum & Or-

der filed. Pitffs’ motion for summary judgment is granted.

SO ORDERED. (See opinion and order) (P/C mailed to

attys)

1969, June 18th: By Weinstein, J. — Order Filed, that deft

Wyman, his successors in office, etc., are hereby enjoined

from implementing or utilizing said Sec. 131-a and, pursuant

thereto, from denying, reducing or discontinuing any ben-

efits in the form of either regular recurring grants or special

grants now available to receipents of Aid to Families with

Dependent Children in New York (including the quarterly

“flat grant” in New York City and special grants through-

out the State). This order shall take effect immediately.

1969, June 18th: By Weinstein, J. — This order is stayed

until 4:00 P.M. on June 19, 1969. SO ORDERED. (Order

endorsed at foot of above order ) (P/C mailed to attys)

B. COMPLAINT (Document No. 1)

UNITED STATES DISTRICT COURT

Eastern District of New York

National Welfare Rights Organization, Citywide Coordinat-

ing Committee of Welfare Organizations, and Julia Rosado,

Lydia Hernandez, Majorie Miley, Sophia Abrom, Ruby

Gathers, Louise Lowman, Eula Mae King, Cathryn Folk,

Annie Lou Phillips, and Majorie Duffy, individually, on

behalf of their minor children, and on behalf of all other

persons similarly situated, Plaintiffs,

- against - 69 Civ 355

George K. Wyman, individually and in his capacity as Com-

missioner of Social Services for the State of New York, and

the Department of Social Services for the State of New

York, Defendants.

Plaintifis on behalf of themselves and all other persons

similarly situated seek to have this court declare invalid

reductions in the amounts of public assistance grants man-

dated by New York Social Services Law § 131, as amended

Laws Ch. 184, March 31, 1969, and § 131-a, added Laws Ch.

184, March 31, 1969 (set forth in Exhibit A herein), and

to enjoin said reductions, on the ground that such redue-

tions are inconsonant with the Social Security et, 42

U.S.C. §§ 301 et seq. and the regulations promulgated

thereunder,

In addition, plaintiffs seek a declaration that the afore-

said Sections 131 and 131-a are in violation of the Four-

teenth Amendment to the Constitution of the United States

insofar as said sections have the effect of Cenving equal

protection of the law.

Preurtmary STaTeMENT

On March 29, 1969 the Legislature of the State of New

Yerk enacted § 13l-a which reduces by significant amounts

the *‘standards of need’’ and actual erants to be paid to

public assistance recipients in New York, as hereinafter

more fully set forth. Such reductions were made pursuant

—— —— ————

Complaint (Document No. 1).

to express legislative findings in the Act of a ‘spiraling

rise of publie assistance rolls and the expenditures there-

fer,’’ the ‘‘economie concern of the people of the State of

New York,’’ and the necessity for the legislature to set

“*the costs of delivering the needs of public assistance re-

cipients in the respective social services districts of the

states.’’ Law Ch. 184, §1, Mareh 31, 1969.

The aforesaid standards and maximum grants will be

fully impemented on July 1, 1969. On the same date, ad-

justments upwards of standards and grant maximums,

based upon the rise in the cost of living, are required to

become fully operative under Section 402(a)(23) of the

Social Security Act, 42 U.S.C. §602(a)(23) [hereinafter

sometimes referred to as Section 402(a)(23)]. This fed-

eral law, which was enacted January 2, 1968, requires that

the standards and maximums then in effect be increased by

July 1, 1969 while the New York statute requires the op-

posite result. .

The New York Act is in direct conflict with the require- .

ments of federal law, denies recipients of public assistance

in New York .the protections and entitlements afforded

them by federal law, and causes serious and irreparable

harm to said recipients. Moreover, as hereinafter more

fully set forth, the New York requirements unreasonably

and irrationally limit standards and maximuns of grants

to recipients who reside in Nassau County and elsewhere

outside of New York City to levels significantly lower than

those applicable to recipients who reside in New York City

despite similarity in living costs. The latter distinctions

violate federal statutory requirements mandating uniform

standards of need and maximum grants throughout the

state, set forth hereinafter and, additionally, the Equal

Protection Clause.

Complaint (Document No. 1).

lll

JURISDICTION

The jurisdiction of the Court is based upon:

(a) 28 U.S.C. $y 1331, 1337 and 1343.

(b) 28 U.S. C. $$ 2201 and 2202.

(d) United States Constitution, Article VI and the

Fourteenth Amendment.

The amount in controversy, exclusive of interests and

costs, exceeds $10,000,

STATEMENT OF CLAIM

1, Pursuant to the Social Security Act of 1935, 42 U.S.C.

§) JUL et seq., New York cooperates with the Federal Gov-

ernment in providing public welfare assistance to needy

persons under a New York ‘‘state plan,’’ consisting of

state statutes and regulations and approved by the United

States Department of Health, Education and Welfare. In

order to participate in said program New York must com-

ply with all pertinent federal statutes and regulations.

2. Pursuant to the state plan, eligible individuals re-

ceive regular recurring semi-monthly or monthly checks

for food, rent and other items of basie subsistence.

3. Prior to September 1968, all recipients in New York

State were also eligible for ‘‘special needs’? grants to pro-

vide for lacking. deteriorated or outgrown items of furni-

ture, clothing, kitchen supplies, and other items. The

= ee ee

es seston

Complaint (Document No. 1).

provision for such grants recognized that the ‘‘regular and

_ recurring’’ grant did not provide sufficient monies to recipi-

ents to permit them to purchase or replace the needed

items which were the subject of the ‘‘special needs’’

grants.

4. Among other things, the ‘special needs’’ grants pro-

vided monies for the purpose of:

(a) Supplying families with an amount for home fur-

nishing and clothing consistent with a minimal standard

of health and decency at the time a family began receiving

public assistance and from time to time thereafter.

-(b) Replacing essential items of home furnishings and

clothing as they became worn out, unsafe, or a hazard to

health.

strating medical or other necessity, special dict require-

ments pursuant to doctor’s orders, restaurant meals for

those unable to cook at home, travel for welfare and medi-

eal business, layette for newborn infants, job-hunting

expenses, school fees, burial:expenses, and so forth.

5. On August 27, 1968, as the result of a substantial in-

crease in special needs grants in New York City because of

proper payments for legitimate needs, the City effectuated

under the guise of a ‘‘demonstration project,’’ a substantial

reduction in its expenditures and in the amounts paid to

many needy families by eliminating all special needs grants

for clothing and household furnishings and providing in-

stead a ‘‘special flat quarterly grant’’ totaling $100 per

year per recipient allegedly to cover the cost of such items.

Said ‘‘special flat quarterly grant’’ is an addition to the

“regular and recurring’’ grant. Recipients continued to

remain eligible for grants for the.items of special need

enumerated in paragraph (4)(c) above.

Complaint (Document No. 1).

6. The so-called ‘*special flat quarterly grant’? at no

time applied to persons residing in counties of New York

State other than those constituting the City of New York.

Recipients outside of New York City continued to be

eligible for all special needs grants. Thus plaintiffs herein

Duffy and Phillips continued to receive grants for special

needs under existing § 131 of the Social Services Law.

7. On or about March 29, 1969, the New York State

Legislature, which had previously authorized the State

Department of Social Serviees to establish grant levels,

adopted Social Services Law § 131-a and set its own stand-

ards of need and maximum grants, exclusive of rent and

fuel, for persons living in New York City as follows:

Number of persons in Household

For each

additional

One Two Three Four Five Six Seven person

70 $116 $162 $208 $254 $297 $340 $43

and the following standards of need and maximum grants

for recipients outside of New York City:

Number of persons in Household

For each

additional

One Two Three Four Five Six Seven _ person

$60 $101 $142 $183 $224 $257 $290 $33

As the result of this enactment, the amount for which

plaintiffs qualified under law are substantially reduced, as

is demonstrated in the tabulation set forth subsequently

herein. These reduced ‘‘maximum monthly grants’ will

become effective July 1, 1969, and the New York State

)

ees same eten

Complaint (Document No. 1).

Department of Social Services.is now taking the appro-

priate administrative steps to allow for effective and com-

plete implementation throughout the State by July 1, 1969

8. By adopting Section 131-a, the Legislature lowered

the standards and significantly reduced the grants avail-

able to recipients in the following way, among others:

(a) Cost of living increments which had been added to

the ‘‘regular and reeurring’”’ grants subsequent to the en-

actment of Section 402(a) (23) in January, 1968 are wiped

out for nunerous families, and the families reduced below

standards existing in July 1967.

(b) The ‘‘special flat quarterly grant” for New York

City residents is abolished.

where in New York State are eliminated.

(d) Recipients living in certain places outside the City

of New York, such as Plaintiffs Duffy and Phillips who

reside in Nassau County and who presently receive ‘‘regu-

lar and recurring’? grants equal to those living in New

York City because of equally high or higher living costs,

are even further reduced in the standards and grants.

9(a) On January 2, 1968, the Social Security Act was

amended by the addition of Section 402(a)(23), which in

its entirety requires that the States:

‘provide that by July 1, 1969, the amounts used by the

State to deten ine the needs of individuals will have

been adjusted \ reflect fully changes in living costs

since such amounts were established, and any maxi-

mums that the State imposes on the amount of aid paid

to families will have been proportionately adjusted.”’

12 |

Complaint (Document No. 1).

(b) The United States Department of Health, Educa- \

tion and Welfare has adopted the following regulation

pursuant to Section 402(a) (23):

‘“‘In the AFDC plan, provide that by July 1, 1969,

the State’s standard of assistance for the AFDC pro-

gram will have been adjusted to reflect fully changes ‘

in living costs since such standards were established,

and any maximums that the State imposes on the

amount of aid paid to families will have been propor-

tionately adjusted. In such adjustment a consolida-

tion of the standard (i.e., combining of items) may

not result in a reduction in the content of the stand-

ard. In the event the State is not able to meet need

in full under the adjusted standard, the State may

make ratable reductions in accordance with subpara-

grap (5) (viti) of this paragraph. Nevertheless, if

a State maintains a system of dollar maximums, these

maximums must be proportionately adjusted in rela-

tion to the updated standards.’’ 45 C.F.R. -§ 233.20(a)

(2) (ii), 34 Fed. Reg. 1394 (1969).

(ec) Section 402(a) (23) imposes two discrete obligations

on the states and contemplates a necessary two-step opera-

tion by the States to bring about the mandated results

on July 1, 1969. (1) The States shall take the necessary

steps so that standards of need ‘‘will have been’? adjusted

to reflect fully changes in living costs. (2) ‘maximums

that the state imposes on the amount of aid paid .

will have been proportionately adjusted.’? Recognizing.

that an adjustment in standards of need in light of changes

in cost of living necessarily requires study and analysis

of changes in living costs and that the adjusted standard

resulting from such study and analysis requires state legis-

lative change and substantial administrative adjustment.

Congress provided the period from January 1968 to July

Complaint (Document No. 1).

1969. Congress therefore mandated immediate prepara-

tion of adjustments in the standards used to determine

need so that by July 1, 1969, the amounts -paid to families

with dependent children would reflect fully changes in

living costs since the state standard had last been adjusted

prior to January 2, 1968, when Section 402(a) (23) became

law.

(d) The cost of living in the New York City Metro-

politan area (including Nassau County) has risen 7.7%

from July 1967, the last date prior to January 2, 1968,

when welfare benefits were increased by New York, until

February 1969. Section 131-a effectuates a substantial re-

duction, however, rather than the federally mandated in-

crease.

(e) New York has taken final legislative action in enact-

ment of its annual budget for -the fiscal year 1969-1970

which offends the two federal requirements in Section

402(a) (25). -Ignoring the applicable 7.7% increase in

living costs, New York has redetermined the needs of in-

dividuals downwards during the very period of federal

obligation in which the State must adjust need standards

to reflect fully changes in costs of living. Based upon

this unlawful_redeterminat’on of needs of individuals, New

York has further mandated dollar maximums on _ the

amounts of aid to be paid as of July 1, 1969, when the

federal statute requires that any such maximums will have

been proportionately adjusted to reflect the rise in living

costs. In so doing New York has mandated a result to

obtain on July 1, 1969, flatly contrary to the result speci-

fied in Section 402(a) (23) for that very date.

(f) New York has until now determined on some al-

legedly factual basis the needs of various families and then

paid that family the amount needed, taking into account

other resources of the family such as earned income and

Complaint (Document No. 1).

OASDI benefits. On information and belief, no factual

study or attention to actual necd whatever underlay the

setting of the ‘*maximum monthly grants’? by the legis-

lature, although the statute says that ‘‘such schedules shall

be deemed to make adequate provision for all items of

need.’’ Rather the sole concern of the legislature was the

‘costs of delivering the needs of public assistance ro-

cipients,’’ in light of the “spiraling rise of public assist-

ance rolls and the expenditures therefore... .’? Laws

Ch. 184, §1, March 31, 1969,

10(a) United States Department of Health, Edueation

and Welfare regulation requires that state plans must:

‘*Provide that the standard [of assistance] will be

uniformly applied throughout the State.’? 45 CLF.R.

§ 233.20(a) (2) (iii), 311 Fed. Reg. 1394 (Jan. 29, 1969)

and

‘*Provide that payment will be based on the determi-

nation of the amount of assistance needed and that.

if full individual payments are precluded by maximums

or insufficient funds, adjustments will be made by

methods applied uniformly State-wide.’? 45 C.F.R.

§ 233.20(a)(2) (viii), 311 Fed. Reg. 1894 (Jan. 29,

1969).

(b) The standards of assistance and maximum grants

adopted by the Legislature in Section 131-a do not apply

uniformly, nor are the discriminations in amounts granted

based on any rational consideration of living costs. For

example, the living costs of plaintiffs and their class who

are residents of Nassau County are as high or higher

than those experienced by residents of New York City

and publie assistance grants to them were equal.

11. The current standard of assistance falls far short

of that necessary to maintain health and decency, as all

__ —— PAREN

Complaint (Document No. 1).

studies of this field confirm. The individuals and families

on public assistance who now live from hand to mouth

are now being buffeted by spiraling inflation and an in-

crease in the regressive sales tax. The reductions de-

scribed herein threaten profound irreparable injury in

that the reduced grants do not provide plaintiffs and their

class with the amount needed to subsist. This induces re-

cipients to cut back on current expenditures to save

against the decline in assistance grants as costs rise.

12. The reduction in the standard of need will render

ineligible for aid needy persons whose income and other

resources were just below welfare standards and will now

equal or exceed the reduced standard.

13. Unless this Court declares the reduction invalid and

enjoins the implementation thereof, the aforementioned

unlawful result. will obtain on July 1, 1969, and the Legis-

lature will be unable to act in timely fashion to comply

with the requirements of Section _——

PLAINTIFFS

1.(a) Plaintiffs are all citizens of the United States and

reside in the State of New York. Plaintiffs bring this ac-

tion, pursuant to Rule 23 of the Federal Rules of Civil

Procedure, on their own behalf and on behalf of all New

York individuals and families similarly aggrieved by the

unlawful reduction of public assistance grants pursuant to

Section 13l-a of the New York Soical Services Law in

violation of the Social Security Act and federal regula-

tions.

(b) Plaintiffs Duffy and Phillips are members of an

additional class of recipients of public assistance residing

Complaint (Document No. 1).

in Nassau County, and other urban and suburban counties

Other than those within the City of New York, whose

grants have been reduced below those of persons with

identical need in the City of New York in violation of the

Social Security Act and regulations promulgated there-

under, and the Fourteenth Amendment to the Constitution

of the United States.

the questions of fact and law are common to the plaintiffs

and the class they represent, the members of the class are

so numerous as to make joinder of parties impracticable,

the claims of the plaintiffs are typical of the claims of all

members of the class, the plaintiffs fairly and adequately

represent the claims of all the members of the class, the

defendant is acting on grounds generally applicable to

the entire class, the questions of law and fact common to

the class predominate over any questions affecting in-

dividual members, and class action will best provide for a

fair and efficient adjudication of this controversy.

2. The New York City Plaintiffs are presently receiving

regular monthly amounts for AFDC as set forth below and

are prohibited from receiving more than the following

amounts under the challenged statute. All amounts are

exclusive of rent.

Plaintiff Current Monthly Grant Maximum Grant

Under § 131-a

Rosapo $280 $254

HERNANDEZ $218 $162

MILEY $535 $469

ABROM $406 $340

GATHERS $382 $340

LowMAN $396 $383

Kine $482 $426

Fouk $337 $208

Complaint (Document No. 1).

3. The Nassau County Plaintiffs are presently receiving

the following amounts exclusive of rent. Needy individuals

in Nassau County presently receive assistance at the same

levels as individuals in New York City. Under the chal-

lenged law these plaintiffs will receive assistance at the

lower rates provided for all recipients residing outside

New York City.

; §131-a § 131-a

Current NY State NY City

Plaintiff Monthly Grant © Maximum Minimum

PHILLIPS $314.40 $224 $254

Durry $563.40 $389 $469

4. Plaintiff National Welfare Rights Organization was

formed in 1967 by recipients of public assistance to enable

them to learn of their rights and entitlements and to or-

ganize and to teach individuals in need of financial assist-

ance how they might go about getting the needed relief.

The membership of NWRO includes more than 30,000

households, and 200 affiliated groups in 70 communities in -

37 states.

5. Plaintiff City Wide Coordinating Committee of Wel-

fare Organizations was formed in 1966 by welfare recipient

for the purpose of assisting all needy individuals to receive

the grants to which they are legally entitled. City-wide is

the coordinating agency for neighborhood welfare organi-

zations in New York City and it has over 4,000 members.

DEFENDANTS

1. ‘The Defendant State Department of Social Services,

under New York Social Services Law § 20, has primary

—7

responsibility for promulgating regulations and instituting

procedures for the administration and distribution of pub-

lie assistance in New York State, in accordance with the

requirements of the federal Social Security Act, the Social

Services Law of New York, and the Constitutions of New

York and the United States.

Complaint. (Document No. 1).

2. Defendant George K. Wyman, as Commissioner of

the Department of Social Services of the State of New

York, has primary responsibility for the administration of

that Department in compliance with the law. New York

Social Services Law, § 34.

Vil

As a first cause of action, plaintiffs allege:

1. Section 402(a)(23) of the Social Security Act re-

quires that:

**. . . by July 1, 1969, the amounts used by the State

to determine the needs of individuals will have been

adjusted to reflect fully changes in living costs since

such amounts were established . . .”’

2. By enacting Section 13l-a, New York State has set

standards which are ‘‘deemed to make adequate provisions

for all items of need. In fact this legislation constitutes a

downward revision in standards in direct violation of See-

tion 402(a)(23) and therefore should be declared invalid

and defendants should be enjoined from implementing such

reduction for plaintiffs and members of their class, pur-

suant thereto.

Vill

As a second cause of action, plaintiffs allege:

Complaint (Document No. f).

1. Section 402(a)(23) of the Social Security Act pro-

vides that:

. by July 1, 1969, . . . any maximums that the

aie imposes on the amount of aid paid to families

will have been proportionately adjusted [to the cost-

of-living inerease].’’

2. Section 131-a, in adjusting maximums on the amounts

paid to plaintiff families, in accordance with redetermina-

tions of need which reflect anything but ‘‘changes in living

costs,’’ thereby reducing actual benefits paid, is in direct

violation of Section 402(a)(23) and therefore should be

declared invalid and defendants should be enjoined from

implementing such reduction of bencfits pursuant thereto.

‘ Ix

As a third cause of action, plaintiffs allege:

1. The regulations of the Department of Health, Edu-

-eation and Welfare, 45 C.F.R. § 233(a)(2) (ii), 34 Fed.

Reg. 1394 (1969) provide that in making the cost-of-living

adjustment

«| . a consolidation of the standard (i.c., die

of items) may not result in a reduction in the content

of the standard... .”’

2. Section 13l-a constitutes such a forbidden ‘‘reduc-

tion in the content of the standard,’’ in that it eliminates

provision for major items of clothing and furniture which

is now made through special needs grants outside New

York City and the $100 per year ‘‘special flat quarterly

grant’? in New York City. Amounts contained in the reg-

ular recurring grant to provide for the greater expenses

of feeding and clothing older children are also eliminated.

Complaint (Document No. 1).

Grants available throughout the State for telephones, spe-

cial diets, expenses incident to employment, age, disability,

pregnancy, education and training, replacement of lost or

stolen checks, moving expenses, rent sceurity, extermina-

tion, ete., are now impermissible.

3. Section 13l-a is indirect violation of the federal reg-

ulation and therefore should be declared invalid and

defendant should be enjoined from implementing a redue-

tion of benefits pursuant thereto.

As a fourth cause of action, plaintiffs allege:

1. Section 131-a violates the Social Seeurity Act of 1955

and the regulations made pursuant thereto because it is not

a plan of uniform statewide application in that public

assistance recipients in Nassau County and other non-New

York City areas are singled out for special, unfavorable

and discriminatory treatment.

2. Section 402(a)(1) of the Social Seeurity Act, 42

U.S.C. § 602(a)(1), requires that a state plan ‘‘shall be in

effect in all political sub-divisions of the state, and, if ad-

ministered by them, be mandatory upon them.’’ As in-

terpreted by the Department of Health, Edueation and

Welfare in its ‘‘Handbook of Publie Assistance Admin-

istration’’ (the binding federal regulations of the United

States Department of Health, Education and Welfare),

the statute requires that the plan ‘‘shall . . . provide for

administration in accordance with standards that are

mandatory and equitable throughout the State.’’ Pt. II

§ 4200(1) (1964).

—_ rea OCE ARCMIN SAA ANH

Complaint (Document No. 1).

3. On January 29, 1969 the Department of Health, Edu-

eation and Welfare promulgated 45 C.F.R. § 233.20, 34

Fed. Reg. 1394, which provides in pertinent part:

§ 233.20 Need and Amount of Assistance

a) Requirement for State Plans. A State Plan for

OAA, AFDC, AB, APTD OR AABD must, as

specified below:

1. General. Provide that the determination of

need and amount of assistance for all applicants

and recipients will be made on an objective and

equitable basis. .

2. Standards of Assistance. (i) Specify a State-

wide standard, expressed in money amounts, to

be used in determining (a) the need of ap-

plicants and recipients and (b) the amount of

the assistance payment.

(iii) Provide that the standard will be wey

applied throughout the State.

4. Although the legislative findings ona purpose of the

March 29, 1969 Act state that the reductions ‘‘will pro-

mote greater unifurmity and equality of treatment,”’

plaintiffs Phillip and Duffy, both residents of Nassau

County, will receive substantially less public assistance -

_-under Section 13l-a than persons. identically situated but

living within New York City.

5. The cost of living in Nassau County is as high as in

New York City. The United States Department of Labor

in its statistical analysis of the cost of living makes no

distinction between costs in New York City and neighbor-

ing counties. The same supermarket chains and depart-—

ment stores service both areas and charge substantially

Complaint (Docwment No. 1).

the same prices for all items including basic necessities in

both New York City and Nassau County.

6. Defendant Wyman recognized this absence of cost of

living differential in promulgating Section 352.4 of Title

18 of the New York Code, Rules and Regulations which

established identical standards of need for public as-

sistance recipients living in New York City and Nassau

County.

7. On information and belief, there was neither experi-

ence, information or evidence brought before either house

of the New York State legislature or any committee thereof

justifying or warranting a legislative finding that there

was an actual cost of living differential between New York

City and Nassau County.

8. Section 131-a is in direct violation of the federal re-

quirement that standards will be uniformly applied

throughout the State, in that it sets different and lower

standards for residents of Nassau County and elsewhere

without regard to their equal need, and therefore should

be declared invalid and defendants should be enjoined

from implementing a reduction of benefits pursuant

thereto.

As a fifth cause of action, plaintiffs repeat and reallege

the allegations contained in couats one through four hereof

with the same force and effect as if herein fully set

forth, and allege:

1. Section 13l-a has set schedules of grants and

‘‘deem[s]’’ them ‘‘to make adequate provision for all

items of need.’? This was done for the sole purpose of

saving money without regard to the actual cost of living in

—

—-

| ee ee

Complaint (Document No. 1).

the State and without consideration of objective studies

which are required by the various federal meat pre-

viously set forth.

2. Section 13l-a is in direct violation of the require-

ments of the Social Security Act and the regulations

adopted thereunder, and therefore should be declared in-

valid and defendants should be enjoined from implement-

ing a reduction of benefits pursuant thereto.

XII

As a further claim for declaratory relief, plaintiffs

Phillips and Duffy, on behalf of all members of their sub-

class residing in Nassau County repeat and reallege the

allegations contained in count four herein with the same

force and effect as if herein fully set forth, and allege:

1. There is no legitimate or rational purpose served by

discriminating against public assistance recipients living

outside of New York City, and more particularly in Nassau

County. |

2. Section 131-a denies plaintiffs Phillips and Duffy and

all members of their sub-class the equa] protection of the

laws in violation of the Fourteenth Amendment and there-

fore should be declared invalid.

XIII

Plaintiffs have no adequate remedy at law. Defendant

will continue to cause, and threaten to cause, irreparable

injury unless enjoined forthwith.

Wuererore, plaintiffs respectfully pray on behalf of

themselves and all others similarly situated, that this

Court:

1. Enter preliminary and permanent injunctions enjoin-

ing the defendant, his successors in office, agents and em-

Complaint (Document No. 1).

ployees, and all other persons in active concert an

participation with them, from enforcing or taking any

steps in any way toward implementing, and from putting

into effect, the system of ‘tmaximum monthly grants’

and schedules of need prescribed by New York Social Serv-

iees Law § 13l-a, added by Laws Ch, 184, March 31, 1969,

on the ground that said grants and schedules are in viola-

tion of and inconsistent with the requirements of the

federal Social Security Act and regulations promulgated

thereunder.

2. Enter a declaratory judgment holding that the said

New York Social Services Law § 131-a violates the federal

Social Security Act and regulations promulgated there-

under and is therefore invalid in that it redetermines need

standards downward rather than upward in aecordance

with changes in living costs as required, creates maximums

which decrease rather than increase the amounts paid to

families, and contracts the content of the standard of need,

and sets standards without objective study.

3. Enter a declaratory judgment holding that New York

Social Services Law § 13l-a denies plaintifis residing in

the Greater New York areca but outside the City of New

York rights, privileges and immunities secured by the

fourteenth Amendment to the Constitution of the United

States, the federal Social Security Act and regulations

promulgated thereunder, insofar as the said Section 131-a

reduces benciits for persons in the greater New York City

area but outside the City of New York even further than

for City residents despite the similarity in needs and cost.

of living for the two groups of recipients.

+. Allow plaintiffs their costs herein and grant them

and all other persons similarly situated such additional or

alternative relief as the Court may deem to be just and

appropriate.

* * * * * *

a ttn

C. ORDER TO SHOW CAUSE (Document No. 3)

[Title Omitted in Printing]

Let Defendants show cause in Courtroom No. 10 of the

United States Courthouse, 225 Cadman Plaza East, Brooklyn

New York, on the 15th day of April 1969, at 10:00 a.m.

or as soon thereafter as counsel may be heard, why a pre-

liminary injunction should not be granted enjoining defend-

ant Wyman, his successors in office, agents and employees,

and all persons in active concert and participation with

them, from taking any steps toward implementing and from

putting into effect the system of “maximum monthly

grants” and schedules of need prescribed by New York

Social Services Law § 131-a, added by Laws Ch. 184, March

31, 1969, on the ground that implementation of such system

and schedules will result in reduction of benefits in violation

, of Section 402 (a) (23) of the federal Social Security Act,

42 U.S.C. 602 (a) (23), and related sections, and regulations

promulgated thereunder.

Plaintiffs have alleged that they are suffering, and are

threatened with, irreparable injury as the result of the pend-

ing implementation of the said New York Social Services

Law § 13l1-a, in the annexed complaint and affidavits of

Louise Lowman, dated April 6, 1969; Sophia Abrom, dated

April 6, 1969; Anne Lou Phillips, dated April 7, 1969;

Marjorie Duffy, dated April 7, 1969; Eula Mae King, dated

April 8, 1969; Cathryn Folk, dated April 6, 1969; Marjorie

Miley, dated April 6, 1969: Julia Rosado, dated April 7,

1969; and Lydia Hernandez. dated Ageil 7. 1969. It is also

alleged in the anecucd affadewit of Lee A. Albert, an

attorney for plaintiffs. dead Aguil 9 1969. that imme-

before Aged 75. 908 am thom thr mucus mm themefits man-

dated by the sdioneauidl) Sect —,. <2" (ad) (A) aap be eple-

mented try huis | 98": «@ coined

IT 0S CONE) «gat wereece of thy nater om defend

ants a@¢ thes New Yor Oi% onuww at D7 Brondieas. New

—————e

York New York, or upon the Attorney General of the '

State of New York, at his office at 80 Centre Street, New

York, 0.1 or before 12:00 Noon on the 10th day of April,

1969, be deemed sufficient. |

IT 13 FURTHER ORDERED that service of this Order )

be made ty any of the attorneys for plaintiffs in this action. ,

J. B. Weinstein

United States District Judge

Dated: Brooklyn N.Y. April 9, 1969

D. NOTICE OF DEFENDANTS’ MOTION TO CONVENE |

THREE JUDGE COURT (Document No. 6)

[Title Omitted in Printing]

SIRS:

PLEASE TAKE NOTICE that the defendants will bring on

for hearing before the United States District Court in Room

10, United States Courthouse, 225 Cadman Plaza East,

Brooklyn, New York on April 15, 1969 at 10:00 A.M. or

as soon thereafter as counsel may be heard a motion for

convening a statutory court of three Judges for the purpose

of hearing and determining the issues raised by the com-

plaint in this action:

Dated: New York, New York

April 11, 1969.

Yours, etc.,

Louis J. Lefkowitz

Attorney General of the |

State of New York

Attorney for Defendants |

pa oe inl dS ee

E. Telegram from Judge Weinstein to Hon. Robert

Finch, Secretary, Health, Education & Welfare

(Document No. 8)

April 15, 1969

1:05 P.M

Honorable Robert Finch

Secretary, Health, Education & Welfare

Washington, D.C.

Preliminary hearing set for 2:00 P.M. Friday, April 18, 1969,

at Courtroom 10, United States District Courthouse, 225

Cadman Plaza East, Brooklyn, New York, in case of National

Welfare Rights Organization, et al., plaintiffs against George

K. Wyman, et al., defendants, 69-CIV-355 challenging

validity of New York State welfare laws under the Federal

Constitutional Statutes and Regulations. This case may in-

involve interpretation of federal statutes and regulations. You

are requested to appear as a friend of the court if you wish

to do so. Copies of this telegram sent to Attorney General

of United States, Attorney General of the State of New

York, United States Attorney for the Eastern District of

New York and Lee Albert Esq., Attorney for plaintiffs.

Jack B. Weinstein

Judge, U.S. District Court

Eastern District of New York .

F. Telegram from Judge Weinstein to Hon. John

Mitchell, Attorney General (Document No. 9)

April 15, 1969

Honorable John Mitchell

Attorney General of the United States

Washington, D.C.

THE FOLLOWING TELEGRAM WAS SENT TO THE SECRETARY

OF HEALTH, EDUCATION AND WELFARE OF THE UNITED

STATES:

Preliminary hearing set for 2:00 P.M. Friday, April 18,

1969, at Courtroom 10, United States District Courthouse,

225 Cadman Plaza East, Brooklyn, New York, in case of

National Welfare Rights Organization, et al, plaintiffs against

George K. Wyman, et al., defendants, 69-CIV-355 challenging

validity of New York State welfare laws under the federal

constitutional statutes and regulations. This case may in-

volve interpretation of federal statutes and regulations. You

are requested to appear as a friend of the court if you wish

to do so. Copies were sent to the Attorney General of the

State of New York, United States Attorney for the Eastern

District of New York and Lee Albert, Esq., Attorney for

plaintiffs.

Jack B. Weinstein

Judge, U.S. District Court

Eastern District of New York

_ — ‘ie

G. Notice of Defendants’ Motion To Join Additional

Party (Document No. 23)

[Title Omitted in Printing]

SIR:

Please take notice that the defendants, George K.

Wyman and the Department of Social Services of the State

of New York, move this Court for an order that the Secre-

tary of Health, Education and Welfare of the United States

| of America be summoned to appear in this action as a

| party defendant because in his absence complete relief can-

not be accorded among those already parties, as will more

fully appear from the affidavit attached to this motion.

| The Secretary of Health, Education and Welfare can

be made a party defendant without depriving this court of

| jurisdiction of the parties already before it. He is subject

| to the jurisdiction of this Court.

| Dated: New York, New York

April 21, 1969

| Yours, etc.,

| /s/ Philip Weinberg

Louis J. Lefkowitz

Attorney General of the

State of New York

Attorney for Defendants

H. Letter from U.S. Attorney to Judge Weinstein

(Document No. 24)

UNITED STATES DEPARTMENT OF JUSTICE

UNITED STATES ATTORNEY

Eastern District of New York

Federal Building

Brooklyn N. Y. 11201

April 23, 1969

Honorable Jack B. Weinstein

United States District Judge

Eastern District of New York

225 Cadman Plaza East

Brooklyn, New York 11201

Re: National Welfare Rights Organization

v. George K. Wyman, et al.

Civil Action No. 69 C 355

Honorable Sir:

As indicated in our appearance before the Court this af-

ternoon, the Government will be pleased to provide the

Court with amicus memoranda upon any points of law

which may arise in this proceeding and with respect to which

the Court believes that the Government’s views are re-

quired.

Very truly yours,

VINCENT T. McCARTHY

United States Attorney

By: /s/ Howard L. Stevens

Assistant U. S. Attorney

I. Revised Memorandum and Order of Judge

Weinstein on Standing and Necessary Party

(Original Document Nos. 17-18)

| UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

| [Title Omitted in Printing]

April 23, 1969

| Weinstein, D.J.

This is a class action brought by ten recipients of welfare

payments under the Aid to Families With Dependent Child-

| ren Program (AFDC) and two organizations whose stated

purpose is to promote the interests of persons on relief —

the National Welfare Rights Organization and Citywide Co-

| ordinating Committee of Welfare Organizations — to declare

invalid and enjoin the implementation of the recently en-

acted amendment to New York’s Social Services Law which

allegedly cuts substantially the level of welfare payments

throughout the state as of July 1, 1969. N. Y. Soc. Serv.

§ 13l-a added by Laws Ch. 184, March 31, 1969.

Defendants have moved to dismiss as to the two organi-

zational plaintiffs for lack of standing and to join the De-

partment of Health, Education and Welfare (H.E.W.) as a

party defendant. For the reasons stated below, defendants’

standing motion is granted and their joinder motion is denied.

I. STANDING OF ORGANIZATIONS

The general rule is that parties may “rely only on consti-

tutional rights which are personal to themselves. Tileston v.

Uliman, 318 U.S. 44 (1943); Robertson and Kirkham, Juris-

diction of the Supreme Court (1951 ed.), $298.” N.A.A.CP.

v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958). See

also Alderman vy. United States, — U.S. —, —, 89 S. Ct. 961,

966-67 (1969). Applied to organizations, this rule requires,

in the absence of special circumstances, that there be an in-

jury to the organization distinct from that to its member-

ship. See, e.g., Griswold v. Connecticut, 381 U.S. 479

—

(1965) (criminal conviction for aiding and abetting violation

of statute); Joint Anti-Fascist Refugee Committee v. Mc-

Grath, 341 U.S. 123 (1951) (designation of organization as

subversive”); cf. Pierce v. Society of Sisters, 268 U.S. 510,

536 (1925), But cf. Sedler, Standing to Assert Constitu-

tional Jus Tertii in the Supreme Court, 71 Yale L. J. 599,

653 (1962).

An exception to this rule has evolved out of a series of

cases involving efforts by several states to curtail the activi-

ties of the N.A.A.C.P. N.A.A.C.P. vy. Button, 371 US.

415 (1963); Louisiana ex rel. Gremillion v. N.A.A.C.P., 366

U.S. 293 (1961): Bates v. City of Little Rock, 361 US. |

516 (1960); N.A.A.C.P. ». Alabama ex rel. Paiterson, 357

U.S. 449 (1958). The N.A.A.C.P. was permitted to repre-

sent the rights of its members in each of these cases, all of

which involved the freedom of association, because “[i]n

each . . ., the organization itself was aggrieved by the viola-

tion of its members’ rights and therefore plainly had the

real adversary interest which is basic to the idea of

standing.” Note, Parties Plaintiff in Civil Rights Litigation,

68 Colum. L. Rev. 893, 919-20 (1968). See N.A.A.CP. v.

Button, 371 U.S. 415 (1963) (statute to prohibit improper

solicitation of legal business); Louisiana ex rel. Gremillion

» N.A.A.CP., 366 U.S. 293 (1961) (statute requiring cer-

tain types of organizations to file list of names and addresses

of members): Bates v. City of Little Rock, 361 U.S. 516

(1960) (same); N.A.A.C.P. v», Alabama ex rel. Patterson, 357

U.S. 449, 459 (1958) (same; “the reasonable likelihood that

the association itself through diminished financial support

and membership may be effected’’). Moreover, except

in N.A.A.C.P. v. Button, to require the individual mem-

bers to come forward and individually assert the right being

claimed, “would result in nullification of the right at the

very moment of its assertion.” N.A.A.C.P. v. Alabama ex

rel. Patterson, 357 U.S. 449, 459 (1958).

In the instant case, there are no special circumstances

warranting departure from the general rule requiring that

aan

there be a distinct injury to the organization. See United

States v. Alderman, — U.S. —, 89 S. Ct. 961 (1969). The

freedom of association of the members is not involved and

no direct injury to the National Welfare Rights Organiza-

tion or Citywide Coordinating Committee of Welfare Organi-

zations is threatened. Nor is there lack of effective repre-

sentation, gross adversial inequality, or any practical or

theoretical obstacle to the individual plaintiffs’ effective as-

sertion of their claims. Cf. Smith v. Board of Education of

Morristown School Dist. No. 32, 365 F.2d 770, 776-777

(8th Cir. 1966); Note, Parties Plaintiff in Civil Rights Liti-

gation, 68 Colum. L. Rev. 893, 920 (1968).

While the two organizations may represent a broader class

than the individual plaintiffs — those who are not now en-

titled to receive welfare benefits but who would be if the

standards of need were raised as opposed to those now on

welfare whose payments will be cut under the amended

statute — the relief presently being sought by the individual

plaintiffs will inure to the benefit of all those who come

within the broader class.

The liberal amended federal class action rules permit the

Court to adequately protect those individuals who may be

adversely affected by defendants’ action even though they

are not named as plaintiffs. See Federal Rules of Civil Pro-

cedure, Rule 23(c),(d). But cf. Sedler, Standing to Assert

Constitutional Jus Tertii in the Supreme Court, 71 Yale L.

J. 599, 656 (1962). In any event, the National Welfare

Rights Organization and Citywide Coordinating Committee

of Welfare Organizations will be able to assist the class by

appearing as friends of the Court.

Defendants’ motion to dismiss as to the National Welfare

Rights Organization and Citywide Coordinating Committee

of Welfare Organizations for lack of standing is granted.

The Clerk of the Court is directed to strike their names

from the caption of this case. Henceforth, this case should

be referred to as Rosado, et al. v. Wyman, et al., 69-

Civ.-355.

ll. JOINDER OF H.EW. }

Subdivision (a) of Rule 19 of the Federal Rules of |

Civil Procedure — the feasible joinder provision of the

federal rules — is designed to protect the interests of absent

parties as well as those already before the Court from mul-

tiple litigation or inconsistent obligations. It provides for

the joinder of those persons who fall within either of two

categories:

A person .. . shall be joined as a party in the i

action if (1) in his absence complete relief cannot |

be accorded among those already parties, or (2) he

claims an interest relating to the subject of the ac-

tion and is so situated that the disposition of the |

action in his absence may (i) as a practical matter

impair or impeded his ability to protect that interest

or (ii) leave any of the persons already parties sub-

ject to a substantial risk of incurring doubt, multi- |

ple, or otherwise inconsistent obligations by reason

of his claimed interest.

H.E.W. does not fall within either of these categories.

This Court would not “‘be obliged to grant partial or ‘hollow’

rather than complete relief to the parties before” it in the

absence of the proposed new party. Advisory Committee

Notes to Rule 19. Plaintiffs are seeking to invalidate

section 13l-a so that the present welfare law will remain in

effect; they do not seek to cut-off federal funds. Such a

remedy is an appropriate one and can be granted in the ab-

sence of H.E.W. See, e.g., King v. Smith, 392 U.S. 309

(1968); Westberry vy. Fisher, 37 U.S.L. Week 2573 (D. Me.

1969); Williams v. Danridge, — F. Supp. — (D. Md. 1969):

cf. Note, Federal Judicial Review of State Welfare Practices,

67 Colum. L. Rev. 84, 117 (1967). In none of the recent

- challenges to~state~wetfare’ laws has H.E.W: been made a

party. See, e.g., Shapiro v. Thompson — U.S. —, 37 U.S.L.

Week 4333 (1969); King v. Smith, 392 U.S. 309 (1968);

Westberry v. Fisher, 37 U.S.L. Week 2573 (D. Me. 1969);

Williams v. Danridge, — F. Supp. — (D. Md. 1969).

To require plaintiffs to proceed against H.E.W. would

place them in the untenable position of being forced to

seek a cut-off of all welfare payments in order to challenge

a law on the ground that it provides for inadequate pay-

ments. Such a rule would only serve to insulate state wel-

fare laws from judicial review by deterring potential plain-

tiffs from challenging them in the courts.

Defendants do not suggest any possible prejudice to

themselves from a failure to join H.E.W. They only contend

that since participation in the AFDC program is purely vol-

untary, a state is not bound by federal standards in

fashioning its welfare system and thus plaintiffs should be

required to proceed against H.E.W. to force a cut-off of

federal funds. This argument is without merit. Although

a state has the option of withdrawing from AFDC, it can-

not be said to have exercised that option by the passage of

a statute inconsistent with federal law in the absence of an

express statement of withdrawal by the state legislature.

See, e.g., King v. Smith, 392 U.S. 309 (1968).

Nor will H.E.W. be harmed by non-joinder. While it does

have an arguable interest in the subject matter of this lit-

igation since it is required to review each state plan to de-

termine whether the plan complies with federal standards

and those standards may affect the fiscal contribution of

the federal government, H.E.W.’s absence will not, “as a

practical matter,” impair its ability to protect that interest

or expose any of the existing parties to double or inconsist-

ent liability.

Strong support for the lack of prejudice to H.E.W. is

suggested by the fact that this agency has opposed the mo-

tion to join it as a party. Its interests could be adequately

protected, and its position could be made known to the

Court, by the filing of an amicus brief. See Lampton vy.

Bonin, Civ. No. 68-2092, Sec. E. (E.D. La., complaint filed

November 14, 1968) (H.E.W. requested to file amicus

brief); Jefferson v. Hackney, CA-3012-B (N.D. Tex., com-

plaint filed February 12, 1969) (same). Yet, not only has

it failed to seek the intervention to which it would be en-

titled (Federal Rules of Civil Procedure, Rule 24), it has re-

frained from submitting a brief or participating in argument

despite repeated requests by the Court that it present its

views.

Defendants’ motion to join H.E.W. as a necessary and in-

dispensable party is denied.

/s/ J. B. Weinstein

U.S.D.J.

J. TRANSCRIPT OF PROCEEDINGS OF APRIL 23, 1969

BEFORE JUDGE WEINSTEIN —

(Testimony of Mitchell Ginsberg and Jack Goldberg)

(Document No. 61)

[At Page 72]

MR. ALBERT: Plaintiff wishes to call Mr. Mitchell Gins-

berg at this time.

MITCHELL GINSBERG

having been called as a Witness, and being duly sworn by

the Deputy Clerk, testified as follows:

THE CLERK: Would you state your full name?

THE WITNESS: Mitchell I. Ginsberg.

DIRECT EXAMINATION

BY MR. ALBERT:

Q. Mr. Ginsberg, would you kindly state for the Court

your educational background in social welfare work and

public assistance? A. I have an A.B. from the Tufts Col-

lege in history, an M.A. degree in psychology, and educa-

tion and an M.S. from the Columbia School of Social Work

and I have done a variety of different forms of work in dif-

ferent places.

[73] I have been in the field for 32 years, on an up or

down situation, depending upon which point of view, and

I have deen a professor at the School of Social Work at

Columbia University and an associate dean for 14 years.

I have been Commissioner of Social Services in New York

City for slightly under two years and for 15 months I have

been the administrator of the Human Resources Adminis-

tration.

I am a consultant to HEW and OEO, and a variety of

other organizations of that type.

Q. Most of this extensive work has been done in the

State of New York? A. I’ve been in New York continually

from 1948.

Q. You are quite familiar with the Public Assistance

Program—excuse me, the Public Assistance Administration

in New York City, particularly the ADC program. A. Yes,

I am.

Q. Could you describe the components of a grant under

the present system in the ADC program? A. The basic

grant which is given twice a month, bi-weekly, is designed

to cover what are considered the ordinary recurring expenses,

such as food, clothing and [74] incidental and personal

expenses, rent, heat, so forth.

At the present time, New York City has a grant and a

feature, which is a cyclical grant, $100 per member of a

family per year, which is designed to meet what formerly

was considered certain special expenses, such as clothing

and furniture, large items of that sort, because of the feel-

ing that the basic grant as such did not provide adequately

for those particular benefits.

So we have this cyclical grant in addition and plus that,

there are a number of special grants, such as moving, spe-

cial diets, certain transportation expenses and items of that

nature which are not covered, either, under the basic cycli-

cal grant and based on the specific needs of the individual

or family representing the claim.

Q. Are all of the components of the special grants

expressed in terms of amounts of money? A. Yes.

Q. How in turn, are these amounts determined? A. Well,

the basic element in this is of course, the size of the family

of the individual involved.

If it is a one-person family—under the present system, the

age of the children make a difference in the size of the

grant. Within a family of four, the size of the grant differs

as to the age of the oldest child [75] in the family.

Q. What is the reason for that? A. The assumption by

the State and most of us who have had any experience in

this business, the older child, the oldest child is more likely

to have expenses which are greater and due to the fact

they are in school and school in itself presents certain needs

which are more true for school-age children, teen-agers,

obviously and therefore, the State has recognized the fact

that grants for families should be somewhat higher with

older children than those of younger children.

Q. The amounts purport to reflect the cost of these

items? A. Yes. On a standard of need.

Q. How do these amounts compare with existing budget-

tary studies with, say New York City, or New York State?

A. Welfare budgets as such, tend to be lower than what

most other organizations generally feel is needed.

There have been studies by the Bureau of Labor Statis-

tics, a series of three different levels that they have come

up with. Community Council makes a study.

There is a Community Service Society which has a study

and it recommends what it thinks is the [76] appropriate

minimum and those are substantially higher.

You do have to remember that the welfare family or

individual does receive such things as medical care and does

not pay taxes, thus, some adjustment had to be made

between the estimates arrived at by these other groups and

the actual size of the welfare grant.

Q. Allowing for these adjustments, is it a fact that the

welfare grant is significantly less than a projection for low-

income family? A. Yes. I know of no study after you

have taken into account what I have said, which does not

set a level substantially higher than the existing welfare

grants.

Q. To what extent do present grants provide for a nutri-

tutional, adequate diet for a family of four? A. I don’t

claim to be an expert in nutrition and I think there is a dif-

ficult problem here in giving any statistical basis on these

very few actual studies on this subject that have been done.

There is no question, certainly based on experience of

those of us who are in the business, that the diets of people

on welfare are, if adequate, are minimally adequate.

There is no question that in terms of people with spe-

cial needs, pregnancy, diabetes, the problems [77] are ag-

gravated and there is also statistical evidence, for instance,

in New York City, and one cannot attribute this to wel-

fare and obviously, many of the people that are on welfare,

that the infant mortality rate in New York City is two to

three times higher in certain areas which have concentra-

tions of poor people and welfare clients than other areas in

the same city, where you don’t have the same composition

of the population.

[78] Q. Is it a fact that there is not much margin for

flexibility in using one’s food money? A. Yes.

I have long felt that one of the most disturbing and dif-

ficult aspects of this is that there is no flexibility.

The welfare budget is designed in a sense to be that way,

and most of us, if we were in a situation where we have a

special need and we want to do something one month or

one week against another, we can do it with some reason-

able assurance that we can make it up within one month or

two months.

That is literally impossible under the welfare system and

this complete lack of flexibility which goes so far as not to

permit savings accounts, and so forth.

This is one of the present features of the welfare system.

Q. Are you familiar with the legislative measures passed

by the New York Legislature on March 31, 1961, particu-

larly Section 131 A and related provisions? A. Yes, I am.

Q. Can you describe its impact on the age of depend-

ent children caseloads generally in New York [79] City,

financially? A. I would say it has two major aspects, from

my point of view, for a substantial majority of those clients,

it lowers the level of benefits that they are getting now when

you take into account the cyclical grants which will put in

for specific purposes, of actual need.

So in that sense, in terms of base of what would be the

new basis grant on July Ist, the majority of people under

the ADC program, would get less money than they receive

under the existing program.

In addition, it takes away a variety of special needs and

some of the most disturbing facts are the special diets

and it eliminates the moving expenses, expenses in the home

such as fumigating the apartment, transportation for illness

when necessary, or to visit a relative outside the City. There

are a series of those which will be eliminated. Therefore if

a client is forced to any one of these things, it would be

necessary to take it out of the reduced allowance and that

seems to be the difficulty and undesireability of the recent

legislation.

Q. Putting aside any assessment of reduction from the

abolition of special grants, except for the [80] cyclical,

which we will consider as a part of the regular grant for

this question, can you describe its financial impact in terms

of reduction on say, a family of six with an older child?

A. Yes, if I glance at my notes, our estimation is 80% of

the current cases, covering 75% of the individuals, will re-

ceive less money than they are receiving under the exist-

ing program.

As I said, you do have to take a look into a family of

six or any size family, at the age of the children involved.

If the oldest child is 20 to 21 and there would be very

few of those, the reduction in the grant would be $780 a

year. Where the oldest child is 14 or 15, and it goes on

the basis of the oldest child, the reduction would be $444,

intervening at $660, $540, $180 and so forth. It is not

until you get down to a situation where the child is—where

the oldest child is 10 or 11 and that becomes somewhat

difficult when you have more children in the family and

then, you get an increase of $84, so, it’s clear, using a six

person family, the overwhelming number of them would get

less money.

Q. And the impact of larger families than six would be

more—

[81] MR. WEINBERG: We object to this testimony.

This is supposed to be under the temporary restraining or-

der, which your Honor knows under rule 65 can be for ten

days.

Everybody knows this statute cannot taken effect until

July 1. I do not want to make objections. It is ludicrous

for me to permit this testimony to come in on the ques-

tion of a temporary restraining order, which I assume is the

question we are here to discuss.

The statute is not taking effect for more than two

months.

THE COURT: I have some doubt about maybe you are

right that a temporary restraining order can only last for

ten days, if it is on notice, and there is a hearing.

MR. WEINBERG: It certainly cannot last ‘any longer

than your Honor convenes a three-judge Court or decides

not to and decides to go ahead with the preliminary injunc-

tion.

That is going to be well before July Ist. I do not see

what the cuts affected by [82] the statutes which is not

going to go into effect for another two months has to do

with this testimony.

THE COURT: Well, one thing. I believe that if there

is a three-judge Court, the temporary restraining order may

last until the decision by the three-judge Court.

MR. ALBERT: That is correct, your Honor.

THE COURT: Now you know as well as I that some of

the decisions of three-judge Courts in this District have

come a year or more after the case was argued.

MR. WEINBERG: Of course, that is true, but these Plain-

tiffs can make an application at the time the three-judge

Court is convened, which will certainly be before July Ist.

THE COURT: In addition to that, there is the question

which is basic to this hearing, and that is whether the ad-

ministrative changes which take place in the interim will

be irreversible and the problem then is one: What adverse

effects may take place after July Ist, because the adminis-

trative changes which are made on the [83] assumption that

the statute is valid can be changed.

In any event, your objection is overruled. I will hear the

testimony.

BY MR. ALBERT:

Q. Was it your testimony, Mr. Ginsberg, that in addition

to the reductions that you just talked about, monetary

reductions, there is an abolition of special grants that are

now available to deal with items of special need? A. Yes,

that is right.

Q. With regard to those items, each would be expected

to use whatever they will get under the new system for

those needs? A. There will be no alternative.

If they’re forced to move, it costs money to move and

they will have to take it out of the only resources they

have.

Q. Are these items of special needs now available in

widespread use in the City of New York, as for example,

moving expenses? A. Yes, they are.

I believe Commissioner Goldberg can give more informa-

tion of the exact figures, but as I recall, the total cost for

that particular item in the past fiscal [84] year, has been

five million dollars.

So—

Q. That is in the City of New York? A. That is right.

That’s just the City of New York. Therefore, clearly, that

is an item of substantial—poor people are forced to move

quite often and the kind of housing and the extent of hous-

ing available to them is extremely limited.

Q. The grant for rent is unchanged under the new

amendment? A. Yes. That remains as it is.

Q. Does that grant properly calculated leave anything

over for food, travel, and the like? A. No, the grant is

based on exactly what the rent is charged per person. So,

any change in the rent allowance simply means that addi-

tional amounts of money goes to the landlord and has noth-

ing to do with what the client has left over.

Q. It is also subject to certain limitations imposed by

the Department? A. Yes, that is right, but in any case, it

is limited to the exact rent the client is forced to pay.

Q. Assuming these reductions were fully implemented

on July 1, what kind of events or harms, in [85] your ex-

perience will recipients face or bear when tney are imple-

mented? A. Well, I think that goes back to what I have

said about the lack of flexibility. The only item about

which conceivably you can argue there is in flexibility is the

food item. To a limited extent, I suppose that is true of

clothing. That is such a small proportion, it is not meaning-

ful.

Therefore, the only thing that a client will be able to do

is to reduce the amount of money spent on food, consider-

ing the fact that that is a minimal amount and considering

the fact that the cost of living is increasing, going up as it

has been recently, and there is no indication of a change

in the next few months.

You are going to inevitably be faced by a choice by a

client of having less food for himself or herself and the

family, or doing without some of these items. Some of

which they cannot do without.

So I think the inevitable result will be less food and there-

fore, it’s very clear to me in cases of some of these people

that there are bound to be medical effects.

Q. Is there a grant now available for travel to health

care facilities, either for ordinary [86] cases, or for crisis

care? A. Yes.

Q. That would be abolished by the new law? A. Yes,

except for prior flood and special emergencies, which I have

heard defined as an earthquake.

Q. Is there a grant available now for special diets for

people of proven illnesses and needs? A. Yes, there are,

including pregnant women.

Q. That will be done away with? A. Yes.

Q. Is there a grant now incidental to child birth and in

fancy? A. Yes.

Q. Will that be done away with? A. Yes.

Q. The present grant for furniture and clothing will be

done away with also? A. That is included in the cyclical

grant and as we understand the cyclical grant, it is being

eliminated.

Q. Is it a fact in your experience, that under the pres-

ent grant levels, the subject of money is a source of un-

remitting concern to ADC families, particularly at the end

of the month? A. Absolutely.

[87] As you get closer to the end of the grant, the pres-

sure gets greater. There have been a number of studies of

that nature done and a number of reports of that kind, and

anybody who has direct contact with welfare clients knows

that is the number one cause of concern all the time. But

particularly towards the end or latter part of the grant pe-

riod.

Q. Looking to the present situation today, without the

implication of the cutbacks, but the widely publicized threat

of them, what kind of events or harms are people likely to

be experiencing now from the fact that this statute will be

going into effect? A. One of the characteristics of living

on welfare is almost the perpetual state of anxiety and ten-

sion, because one literally is under pressure day by day,

even under the existing system, and the concern as to what

will happen next inevitably is going to increase that kind

of pressure.

Those of us who have had experience with poor fami-

lies, families on welfare, know in addition to the financial

problems and the problems of potential illness and lack of

adequate nutrition, there is the problem of tension on family

life and strains on family life which are present all the time,

but which in a situation of [88] additional anxiety,

because of this concern, there is bound to be increased

anxieties and tension and then, there is the problem of

children in school, which I think tend to get overlooked.

Children are particularly likely to want to be able to do

what other youngsters can do and not be stigmatized or

marked out as being different.

Unfortunately, to a substantial extent, welfare does this,

anyway. I see this problem being aggravated and I must

say I suppose it’s not evidence, but at the time when a

country as rich as this, why we shouldn’t be doing more

for children, this is rather deeply disturbing to me and my

colleagues.

Q. What kind of effect does the new legislation have on

the moving plans of people for next month? A. If I

were—suppose if I were in a situation, and wanted to move

before the time comes which would mean I might be faced

with a less adequate choice, then I would have later on and

would be forced into more undesirable quarters.

In the State of New York, being on welfare is one fac-

tor where you can be discriminated against, simply because

you are on welfare.

Q. Discrimination is a factor in welfare [89] recipients’

lives? A. Yes. There are very documented cases of land-

—_ ww ennai an

lords refusing to accept clients simply because they are on

welfare. }

Q. Do you foresee any effect on this problem of land-

lord discrimination by reducing the budget on the welfare

recipients? A. I assume it is a speculative one, but it has

crossed my mind that landlords, knowing this can happen

and knowing also there is always a temptation that welfare

clients, when pressured by other factors might use up the

grants for other situations and presumably, the landlords

might decide they are even less desirable as a tenant. |

[90] MR. WEINBERG: I! move to strike this question

and the previous ones.

I recognize a great deal of leeway is necessary in testi- '

mony of this nature. I recognize a temporary restraining

order is a discretionary matter and there is no Jury here,

and all that.

At the same time we have heard the most speculative

imaginable answers, and we have heard conclusions of law.

There has to be some outer limit, even in this sort of an

application.

THE COURT: They are the opinions of a leading expert

and they are acceptable, but I think you ought to drop this ’

line and move to your next line.

You have sufficiently explored it for this purpose.

BY MR. ALBERT:

Q. What is the size of the present ADC caseload in New

York City, approximately? A. Approximately 750,000

including mothers and children. .

Q. What percentage does that represent of the [91]

State in ADC? A. I would guess close to 90% and per- ;

haps 85. New York represents, as | recall, 70 to 75% of ’

the total caseloads and has a great concentration of ADC.

Q. Do existing day care centers allow mothers to work

and have children cared for at the centers? A. There is a

desperate shortage of day care facilities for children of |

ADC families. For children of poor families, generally. |

So I believe we have the equivalent of 12 or 14,000

youngsters in those day care facilities.

_—— nat UO: 9 WH ee

I would estimate at the moment that perhaps 25% of

that number are actually the children of ADC families.

Q. Do you foresee any significant changes in the avail-

ability of day care centers in the next year? A. Yes. We

would hope to expand them.

Q. Do you foresee any significant expansion? A. Well,

I would say it depends one: On primarily the amount of

money available for that purpose. We've been urging that

more use be made of the Federal funds and secondly:

there is a facility problem of finding appropriate space for

those programs.

MR. ALBERT: May | consult for a moment, your

Honor?

[92] THE COURT: Yes.

MR. ALBERT: I have no further questions, your Honor.

Will your Honor indulge a very quick question to the

Witness?

THE COURT: Yes.

BY MR. ALBERT:

Q. Mr. Ginsberg, did you testify, under subpoena today?

A. Yes.

MR. ALBERT: Thank you.

CROSS EXAMINATION

BY MR. WEINBERG:

Q. We have heard a lot of testimony from you about

the welfare system.

When you are referring to the welfare system in your tes-

timony you mean the welfare system as it is nationwide,

administered under the social security law, do you not? A.

Yes. both nationwide, and in New York City and State, of

which we are obviously a part of that, but I am talking of

both the national system across the country as well as it

is carried out in the community.

Q. Does the level of benefits in New York [93] State

as well as New York City compare favorably or unfavorably?

A. They are higher than most states and cities in the United

States.

oat a

Q. With regard to the changes that are going to take

effect when section 131 A takes effect, do you know when

that statute is going to take effect? A. As I read the legis-

lation and I must admit, it is somewhat confusing, it is

scheduled to take effect on July Ist.

Q. 1969? A. Yes, sir.

Q. Now, the damage that you testified to that is going

to result according to your testimony when the statute

takes effect, that is by definition going to happen when the

statute takes effect or after? A. I tried to make distinc-

tions of two things: One is that some of the concerns I’ve

had about what is happening now in anticipation of those

effects, and secondly, some of the specific effects that would

be obviously taking place after the cuts have gone into ef-

fect.

Q. But, Commissioner, the thrust of your testimony

seemed to be towards what was going to happen when the

schedule grants were eliminated for moving, for [94] tele-

phone, for diets, and the like. A. Pardon?

Q. For diets. A. Oh, | woukd agree that the more serious

effects will be after the cuts have actually gone into opera-

tion.

Q. Let us analogize this a little further.

Specifically, what damage, if any, is going to happen be-

fore July Ist, 1969? A. I believe where I testified about

in terms of the concerns that people have; knowing that

what is basically a limited amount of money available to

them under the best circumstances, even though it is per-

fectly true we are higher than most of the rest of the coun-

try, knowing there is going to have to be less than that,

this puts a great deal of pressure on a family as it would

be on any of us, whether on welfare or not, that if we knew -

as of a certain date we would be going to have what I con-

sider substantially less money than we have available to us

now.

It affects our planning with respect to such specifics as

perhaps moving.

Q. Isn’t it a fact that many welfare recipients, although

perhaps not a majority, will get more money under the new

_———

statute? [95] A. Our studies show that the total welfare

cases,—75% of the people will get less money and where

there are cuts, they tend to be on an average substantially

higher than the increases that the majority would get under

the average.

Q. Commissioner, you testified as to special grants that

are afforded by New York City.

Is it your testimony that you prefer the system of spe-

cial grants to a system of a flat grant? A. The special

needs or cyclical grants?

Q. Special grants for special needs, first, such as mov-

ing, telephone, alike. A. I believe under the present size

of the cyclical grants, or the so-called “flat grants,” as it is

more popularly known, there are needs for grants to meet

needs for moving. It’s conceivable in the future we will

move to a different kind of a system which will provide

one specific grant which will take care of these things. But

it obviously will have to be substantially higher than the

existing one.

Q. Isn’t it a fact under your leadership New York City

moved away from special grants? That it established a

project with a flat grant? A. We established what I believe

was a simplified [96] payment program, which provided a

cyclical grant to take care of—I think I indicated to certain

special needs, such as clothing and substantial large furni-

ture, but it was not intended to take care of some of these

special needs which would now be eliminated as a result of

the State legislative act.

Q. Isn’t New York City voluntarily heading in the direc-

tion of moving away from special grants? A. There is no

doubt.

As I have said we look forward to the day we will have

a real flat grant system that would eliminate some of these

special needs, as well, but that would be dependent on the

fact that it was substantially higher than what we have at

present.

Q. Isn’t section 131 A without regard to a dispute about

the amount of the grant, isn’t it a step in that direction, to

that extent? A. Mr. Weinberg, I submit there cannot be

ce ne REO ie

any meaningful discussion of welfare without the discussion

of the level of the grant.

The single most important of the welfare system is the

level of the grant and the money available to poor people

and it’s impossible to discuss it without taking that into

consideration.

[97] Q. Isn’t it a fact that nonetheless 131 A is a

stride in the direction of the one big flat grant which is

moving in a parallel direction with the voluntary direction

that New York City has been moving during your leader-

ship? A. In the leadership of Commissioner Goldberg and

myself, in that direction at a higher level and I must find

difficulty with saying how that coincides with us in going

in the opposite direction with respect to level. [

If the Legislature had increased—

Q. I didn’t ask you about the level. I asked about the

flat grant versus special grants. A. I’m in favor of the con-

cept of a flat grant. I am in favor of a higher level of pay- |

{

-—-———— << —— i

ment for people on welfare.

Q. Isn't it a fact that under the present 1969 State bud-

get, New York City is going to receive more money from

the State than it did last year? A. Are you referring solely i

to welfare?

Q. Yes. A. Yes, I would assume that. That’s because

it is anticipated, and there is no question about it that we'll °

have more people on welfare.

[98] Therefore, the total will be larger, but the amount

per person would be less. |

Q. Are the costs for the average family on aid for depend-

ent children higher in New York City than they are in other

parts of the State? A. Well, from what I have looked into

and I don’t claim to be an expert, I don’t think they are sig-

significantly higher, let us say in metropolitan New York,

but if you are asking me a comparison between New York

and St. Lawrence County I would say they are higher in

New York with respect particularly to rent, food and other |

items.

Q. What about New York and the adjacent counties out-

side the city? A. I have a friend in the Bureau of Labor

Statistics, and he tells me there is no variation between New

York, Nassau County and Westchester County, for exam-

ple.

Q. You testified about day care centers, Commissioner.

Are they paid for by the City of New York? A. Under

the present system they are 50% city and 50% state.

There is Federal money available under certain condi-

tions which would provide 75% Federal and 122% [99]

City and State and that is the direction we are hoping to

get the money from.

Q. Has the State done anything to discourage the estab-

lishment of day care centers by your department? A. By

hesitancy as I do not want to get into motives. I believe

the State and we are equally convinced of the need of day

care centers.

I think we have been disturbed by what appears to be a

lengthy interval of taking advantage of the Federal program.

Q. Commissioner, you testified regarding expenditures,

regarding things like moving and the like.

Isn’t it a fact that even under the statute that is slated

to go into effect July Ist, 1966, that those things could be

still paid for possibly under a purchase of services basis or

something of that nature? A. I understand that is a pos-

sibility. We have not been officially informed of that so

that I can only go on what we know as of this moment.

Q. So you certainly can’t conclusively state that they

wouldn’t be, and you can’t conclusively state that those

things will be stricken from the budget of a welfare client?

A. To the best of our knowledge, those indicated [100]

are to be stricken out. The only one which I understand

there is some question about, is the one of moving. That

is the only one that would apply to it, and I know of noth-

ing officially that would be different than what it is in the

legislation.

Q. The ones you enumerated in your testimony on di-

rect examination is the largest, moving? A. It is the larg-

est in amounts of money, which is significant to the client.

That is a difficult one. I suppose if I had to make some

kind of a rating, I might put very high the special diets for

pregnant women.

I happen to think the mothers and kids about to be born

ought to have a special priority and this legislation goes in

exactly the opposite direction.

Q. Without minimizing the importance of the diet of a

pregnant woman; isn’t it correct that the amount necessary

for a special diet is infinitesmal with regard to expenses for

moving? A. Yes, that’s why I fail to comprehend why the

State has taken that action.

Q. Just one or two more questions.

The impact of this statute according to your testimony,

the statute goes into effect and the changes are going to go

into effect July Ist? [101] A. That’s right.

Q. You testified on direct examination that there may

be a certain amount of anxiety on the part of welfare clients

knowing that perhaps an emphasis perhaps on the payments

are going to be cut.

Not all payments are going to be cut. Some will and

some won’t. How would a temporary restraining order by

this Court prior to July Ist alter that picture?

MR. ALBERT: Your Honor, that is a rather inappro-

priate question.

THE WITNESS: I wouldn’t know that.

THE COURT: Yes. Sustained.

MR. WEINBERG: We have no further questions.

THE COURT: Any redirect?

MR. ALBERT: No further questions, your Honor.

THE COURT: Thank you very much.

(The Witness leaves the Stand.)

THE COURT: Next Witness please.

MR. ALBERT: Commissioner Jack Goldberg to be called

to the Stand with the Court’s permission.

[102] JACK GOLDBERG

having been called as a Witness, and having been duly sworn

by the Deputy Clerk of the Court, took the Stand and tes-

tified as follows:

| 53

——_— ~~ or

THE CLERK: Will you state your full name for the rec-

ord?

THE WITNESS: Jack R. Goldberg.

DIRECT EXAMINATION

BY MR. ALBERT:

Q. Mr. Goldberg, would you state your educational back-

ground in the area of public assistance administration and

social welfare? A. Bachelor’s degree, Brooklyn College.

Master’s degree and Doctorate, N.Y.U., Camping and Edu-

cation.

Q. Would you state your experience in the field of pub-

lic assistance? A. Education Alliance, lower east Side. Wil-

liamette Camps, Inc., Office of Economic Opportunity,

Juvenile Delinquency Program, Consultant, New York City

Housing Authority, Social and Community Affairs.

Part time faculty member, Columbia University, New

York University, Sarah Lawrence.

[102a] Q. Can you state your present occupation? A.

Commissioner, Department of Social Services, since Febru-

ary 1, 1968.

[103] Q. Asa result of that position, are you familiar

with the A.D.C. program in New York City? A. Yes, I

am.

Q. Can you explain the reasons for special grants that

we have heard about today existing under that circumstance

for a variety of items, that is, why are there other established

categories and in what circumstances are those grants made

to people? A. The history of the special grants program

was predicated on the assumption that there were at times

special needs that individuals and families had and under a

historical administration, an individual judgment was made

on the basis of an individual need and an individual client

as to whether or not they had need for such a grant.

Q. Was that assumption based upon the fact that the

regular recurring grant was not adequate to provide for

these items? A. The assumption was there was need in

addition to the recurring grant to have this kind of ventila-

tion or special kind of consideration.

ee a

Q. When are grants for special diets now awarded? And

to whom and under what circumstances? A. They are

awarded on the basis of a medical opinion, [104] on medi-

cal findings, that somebody is in fact a diabetic, for exam-

ple, and therefore requires special kind of consideration in

diet. :

Special grants are provided for pregnant women who are—

there is concern about the need for them to have an en-

riched diet while they are, in fact, pregnant.

Q. How about the item of telephones?

Is there a grant made for them? A. Telephones are

predicated on three factors. One is the aged and infirm.

The other is health considerations and social isolation and

each of those is defined individually and consideration is

made on the basis of that.

Q. Are there grants specifically available for employ-

ment? A. Yes.

Q. That is not covered by the immediate aid program?

A. No, that is not included. Transportation is available

for travel to plants, travel to hospitals, travel to a family

planning clinic. Those are part of the special grants that

are currently available.

Q. Is there a special grant for a visit to an institutional-

ized relative or to attend funerals? [105] A. Yes, if a

parent happens to have a youngster institutionalized out of

New York, or in New York, there are special transporta-

tion grants that are available.

Q. And, the grant for moving expenses is to cover what

items are involved with moving? A. The moving expense

grant provides paying the mover to move the furniture and

personal effects from one apartment to another.

Q. Are these grants available today for security deposits

for a new apartment, brokerage fees, finding a new apart-

ment, fumigation services? A. Yes, there are.

We provide what is a standard one-month security deposit

when somebody is procuring a new apartment.

We provide when the need is indicated a fumigation

grant.

a——

These are all special grants that are currently in effect.

Q. In addition to that, does the regular recurring grant

cover ordinary items? A. Yes.

Q. Does that purport to be based on the cost of such

items? A. Well, it is based on the definition of need as

[106] defined by the State Department of Social Services

and the State Board of Welfare.

Q. Has New York always paid 100 percent of waht it

defines the need to be? A. Yes, it has.

Q. In your opinion, are the amounts assigned to those

items of need now covered by the regular grants as well as

special grants available? A. It has been my own professional

view and studies done by others that we have not met the

standard minimum that people need in this city to maintain

themselves.

Q. What is the one budgetary item now—well, now avail-

able in your experience which would be used, or which is

used to cover items that aren’t budgeted for? A. In my

own judgment, a welfare client or family in terms of man-

agement of their resources, the only place they can have

any kind of flexibility is on a food budget, which is in

itself a significantly limited budget.

Q. That would be a budget that would be used for other

purposes? A. They might well do that, yes.

Now, in addition, we had experienced where families

have used rent money for other purposes and then, have

had difficulty paying their rent.

[107] Q. What is the effect of using rent money for

other purposes? A. It creates a situation where either the

Department provides duplicating funds for them, or they

are faced with an eviction eventually.

Q. Are you familiar with the legislative amendment of

March 31, 1969, particularly Section 131-A relating to pro-

visions dealing with schedules of grant levels? A. Yes, I

am.

Q. Which are the special grants that we discussed before

do not survive from your understanding under the new law?

A. Well, based on the legislation, literally all special grants

are removed. There has been some tentative indication ot

some administrative adjustment, for example, moving, but

to the best of my knowledge, there has been no change

with regard to things like security deposits or brokerage fees

or, for example, a layette for a woman about to give birth

or for the special diets or for telephones.

There are several others, but those I think are the more

critical ones.

Q. Do the new grants purport to meet the need [108]

in full of recipients, the items that are included? A. As I

read the legislation, it indicates that the maximum schedule

—the assumption is that it suggests that it meets the needs

as indicated, or as defined.

Q. Can these figures conceivably meet needs based on

costs of living? A. In my judgment, they cannot, because

under our current system of grants, | would have the con-

tention that we do not in fact meet needs now and if the

effect of the new grant is to in fact lower the substantial

level of welfare clients in the city, then, clearly in my judg-

ment, it does not come anywhere near meeting the needs

of the people.

Q. What items now are being met which will not be met

after July 1? A. Well, clearly—

Q. Are there any luxuries which can be easily foregone

by recipients? A. With the elimination of all of the special

grants with a decrease for most of the families of their basic

recurring budget, I wouldn’t suggest that there ever was

any luxuries into the budget previously and clearly, the little

flexibility that might have been there, in my judgment is

considerably restrained and reduced.

{109} Q. Is there any connection in your experience

between an inadequate income allowance for, say,foodand .

clothing, and educational performance? A. Yes, I think

there has been a reasonable amount of documentation indi-

cating the relationship of low income, profit income to

school performance to educational performance.

Q. Is there any connection between the same inadequate

income for food and clothing and family life? A. Yes, I

ERE

think here again we have a sufficient study in the field that

would indicate the one of the casualities, one of the rela-

} tionships to family stability is the degree of trust that

arises out of the income level of a family.

Q. Is there an incentive in the new law for students—

{ family units, rather than larger family units?

Would it, in other words, be financially profitable for a

family of eight to be divided into two families of four, or

send the children to smaller units? A. If that were con-

| ceivable, yes, because there is the new payment system.

(

A new standard of public assistance. The small families

with younger children do [110] in fact realize some addi-

tional dollars. The larger families, the older children, the

more significant the loss is to the family.

Q. Is there a grant presently existing relating to family

planning? A. A special grant, no. We would provide trans-

portation for somebody to go to a family planning clinic,

but there was no particular special grant.

Q. Would that transportation be similarly provided

under the new law? A. To the best of my understanding,

_ no, it would not be.

| Q. Or for medical care or health care? A. No. Trans-

\ portation as we read the legislation and even with the indi-

cations that we have would not be included for that pur-

pose.

\ Q. How adequate is housing presently occupied by

A.D.C. recipients in New York City? A. I think on the

{ basis of our own knowledge, the studies that are now avail-

\ able, the housing supply available to welfare clients is at

’ best terribly inadequate.

Q. Is the problem of landlord discrimination one that

you have experienced against welfare recipients? A. Yes,

we hear literally every day from the field [111] and from

our housing staff of repeated experiences where welfare cli-

\ ents are turned down purely on the basis of the fact that

they are in fact welfare clients.

Q. Is there any study of the fact why landlords discrim-

inate or turn down welfare clients?

EES Saale ae

. B

MR. WEINBERG: Objected to.

How far afield can we go here? ‘

THE COURT: Sustained.

Move on. ;

Q. Describe the present grant for clothing and items of

furniture in New York. A. We have currently what we call )

“a cyclical payment” which provides for the payment of

$25 a quarter per person.

So, that a family of four would get, in four different

payments, the sum of $400). |

Q. When was that system instituted? A. August 27,

1968.

Q. When is the next check per person, $25, due under

that system? A. That would be scheduled, I believe, some-

wheres during the first week in July.

Q. Assuming the new legislation is implemented, will it

be issued? [112] A. No. |

Q. Was there a policy in your department to encourage }

people to purchase on the installment program on reliance {

of those checks? A. There was no formal policy the depart-

ment took. Workers in the field encouraged families to use

that method in order to purchase large items. |

Q. Is it your experience that welfare clients in New (

York City do have a small, but some amount of credit to

purchase on installments? A. Yes, many of the families

involved do in fact get involved in time purchasing or credit i

buying.

Q. Would that also be true, say, for example, for the

neighborhood grocery store and places like that? A. Yes, '

that is so. ?

Q. What would be the effect on people who have pur-

chased items of clothing or furniture in reliance on the cyc-

lical check, for example, the one in July and the one subse-

to that who are not going to receive it? A. I would think

the impact would be one, to turn off any plans they were f

making anticipating what they would need and what they

would have to do and pass that. It may very well affect

plans they are already committed to and contractual rela-

tionships they’re already committed [113] to, anticipating

the cyclical grant would be paid.

Q. Is it a fact that budgeting the monthly grant, the

semi-monthly grant is a problem of varying experience in

the lives of recipients? A. Yes, I wouldn’t have any ques-

tion about the extreme pressure that a welfare family lives

under with the amount of money that they receive to put

the nickels and dimes where they have to be on a day by

day basis.

Q. Are the widely publicized cuts liable to affect the

budgeting and calculations of people today? A. I would

conjecture that there will be anxiety. There is at this point

and that this may very well have an affect on what people

do with money now, and certainly with regard to the cyc-

lical payment. There is a clear impact on what they are

planning for the future.

Q. Commissioner Goldberg, how many agency recipients

are there today in New York City? A. Just about a mil-

lion. A.D.C. recipients?

Q. Yes. A. We have approximately 600,000 children

and approximately 180,000 mothers.

Q. What percentage of the total case load in the State

does that represent? [114] A. It is an overwhelming 80

percentish.

Q. Approximately how many case workers are there in

New York City? A. Case workers alone, we have some

12,000 persons as case workers.

Q. Approximately how many supervisory personnel and

case units? A. We have approximately another 5,000 sup-

ervisors and an average of 26 case units in each of the 42

centers.

Q. Is it fair to state that all these persons must be famil-

iar with they new system contained in the legislative amend-

ment by July 1? A. Yes, they would have to be familiar

with the system they have now and that isn’t always

achieved very easily.

Q. How many checks on a bi-monthly basis are issued

to A.D.C. families in New York City? A. We issue to the

family units, 180,000. 180,000 A.D.C. checks every two

weeks.

Q. What actually has to be done in your department to

fully implement the legislation under question here by July

1? A. Well, each of the A.D.C. cases and in fact the total

case load which is some 380,000 cases, each of those [1 14a]

have to be re-budgeted on an individual basis and based on

the material that we have in front of us now, based on the

new level of assistance and based on removing the special

grants that may now be part of the checks that are being

rendered.

[115] BY MR. ALBERT:

Q. Can you in fact do this fully for the entire case load by

July Ist, assuming the situation is as you now see it? A. If

we can begin on the Ist of May and have all the questions

answered that have to be answered, we would in fact be able

to implement under pressure the necessary changes by the

Ist of July, but we clearly have to have the lead time.

It is indicated by me saying if we go by the Ist of May.

Q. What in your view would be the effect if you were

told, assuming now you began the Ist of May taking all

necessary speed to implement this by July Ist, what would

be the effect of being told, say in June, the previous law,

in all aspects, was going to be continued? A. Well, I think

we would have at that point created one round of sheer

havoc. We couldn’t possibly turn around at that point. I

think what we would end up doing, hopefully, is getting

the public assistance checks out based on the current sys-

tem that you are suggesting would be changed if in fact we

could do that.

Q. Would it make a significant difference to [116] you

administratively to know now that either the new legis-

lation or the old one may be the one in force on July Ist?

A. Yes, it is critical.

Q. As opposed to not knowing anything, I mean. A. It

is critical for us to know where we are at literally by the

Ist of May for us to do the things that we have an obliga-

tion to do under the law.

— ae

Q. Processing the special grants today requires a case

worker to do what? A. To meet and talk with the client,

depending upon what the nature of the grant is. To have

the necessary kind of authentication, for example, on a

special diet, there has to be some medical input. To secure

necessary approval from the next level supervisor to write

in a proper authorization for that special grant and for it

to be added to the recurring check that is received bi-

monthly.

Q. Is it accurate to say this process from beginning to.

the issuance of the grant can take several weeks or months?

A. It can. It does not necessarily take that length of time

all the time.

[117] In some instances, it may and in some instances

it may be turned out much more quickly than that.

Q. Will there come a time before July Ist, based on the

new legislation, when case workers will cease to process

special grants which would have to end on July Ist? A.

Well, that’s going to present an interesting administrative

problem. Particularly, under the law, a client is in fact

entitled to special grants up to June 30, 1969, assuming

that the new legislation goes into effect July Ist.

Up until I guess 12:00 midnight, every client is really

entitled to receive special grants if they are qualified for it.

When we stop processing those and go through the pro-

cess of approving and agreeing and instituing the changes

in the checks and at what point we cut it off, because we

know there is going to be another administrative horror.

Q. Realize particularly would anyone process a tele-

phone grant, for example, in June under the new law going

into effect on July Ist? A. It would make no sense.

Legally, that client would be entitled to have that pro-

cessing.

[118] Q. If someone were planning to move, for exam-

ple, in July, what would be the case worker’s response,

who is not a lawyer, to the client? A. I would only con-

jecture, because you know, the reactions of case workers

vary from case worker to case worker.

For some, I would think that they have questions and

whether or not they ought to sign off on a moving expense ’

in view of the fact that tomorrow or the next week it is

not going to be, I think clearly I would have to acknowledge

that the fact that the law would be effective on the Ist of

July will have some effect on our practice, our attitudes and i

our administrative procedures.

I cannot distinctly define how, but if the question is will

it affect it, I think yes, it will.

I cannot qualify or specify as to how, but it is clear that

it will.

MR. ALBERT: May I have just one moment, your Honor?

THE COURT: Yes.

BY MR. ALBERT:

Q. Commissioner Goldberg, are you testifying [119] here

today under subpoena? A. Yes, I am.

MR. ALBERT: I have no further questions.

THE COURT: I have a question, Commissioner.

You understand that what the Plaintiffs are asking is to

prevent you from taking steps which you have taken now

to prepare for the July Ist change, which would prevent

you from going back to the present system.

In effect, as I understand it, they are asking me to order

you to continue in a posture preparing for either the new

system or the present system after July Ist, so that you

can use either system, depending on whether the law is

declared Constitutional or not.

Are you equipped to go both ways?

THE WITNESS: No.

As I tried to indicate, the process of rebudgeting is a

very complex one. |

ET mae

During my tenure, we have been through two such rebud-

geting procedures relating to the increase in the cost of living.

Each of those is a tedious job that requires workers to be

[120] corrected, trained, instructed, forms to be complete:

systems in our machine set up, our EDP system to be |

changed, programs to be changed, It is a complicated man- |

power and technical job and it would be a very serious prob- |

————a——

lem in our being able to go b)th ways at the same time, as

I gather your Honor is suggesing.

THE COURT: I take it tht js the position, at least part

of the position in this order.

You say that unless you Kigw by May Ist you cannot

administratively handle a chajge-over by July Ist.

You know, this is the 23r¢ of April. That just gives us

seven days.

_THE WITNESS: I would ay to you May 6th is a possi-

bility, too. I am trying to Ulgerline that we literally need

the information within the fist week of May.

THE COURT: Even thou the new system is a lot sim-

pler mechanically, I take it?

THE WITNESS: It is a Siipjer method in its end result,

but not simpler in implemenjng jt to get the end result.

THE COURT: Why is the

[121] THE WITNESS: Ech income level is going to

have to be determined from he point of view of whether

a client is still eligible or not

THE COURT: I see.

THE WITNESS: In addit,, to that, each budget has to

be reviewed to see whether | effect there is a special grant.

So that there cannot be just, simple, casual going over to

a new system.

THE COURT: You are ny sufficient! ,

y computcrized so

that this can be done by fee;,,, ; ree

ing the ma doing it? ‘ing in basic criteria and hav-

THE WITNESS: I must Site at the :

question. We are

sufficiently computerized tChaye sometimes continuing

confusion.

BY MR. ALBERT:

Q. I am sorry. I think, , testi

mony on that also. I misunderstood your testi-

I believe I asked you if | would make a difference to

— cs be told ape Pam her the legislative amendments

you know about or PFeS.+ system will be the system

in force on on moa then e [122] to be told that in,

sometime in May OF June. — Well, let me try to answer—

Sogn Raat at en AE nner ne Kei ANAT ——

THE COURT: Excuse me. I did not understand the

question.

Would the reporter read it back, please.

(Whereupon, the previous question was read back by the

reporter)

THE COURT: Strike the question.

MR. ALBERT: I will rephrase the question.

Q. In terms of administrative havoc, would it make a

difference to you to know that the law which now requires

you to change over by July Ist may not be, may not be a

valid law; to know that now as opposed to knowing it in

June? A. Oh, yes, it would be.

It would create consternation, but it would be very help-

ful to have that consternation now than to be advised on

June Ist that there is going to be a change.

Q. Were you advised on June Ist that that was the situ-

ation, would the checks going out in July be the checks

reflecting the present law? A. I am sorry, Mr. Albert, I

keep losing the sense of your questions.

Q. I am sorry.

[123] If you were to be told that the procedure now,

the law of the State of New York which requires you to

implement those reductions—is that your understanding of

the law of New York today? A. My understanding is that

I am charged by the current legislation, the new Public

Assistance which starts on the Ist of July, if in fact I have

a clear definition that it is going to happen, plus necessary

administrative guidance which we have not yet received, we

would be prepared to implement with the first checks what

is currently a mandate by July Ist.

Q. If you were told on June Ist and not before that

that law is invalid and you may not follow it on July Ist,

would the checks going out reflect the present standards?

A. I cannot answer that unequivocably one way or the

other. It would depend on how far we have gotten on the

business in changing the magnetic tapes, the systems, et

cetera.

_ — ee

We might have gone past the point of no return, so, in

fact, we reached that point and we could in fact not deliver

the current checks.

THE COURT: I take it, though, from your testimony

that you would prefer to have a final [124] decision from

this Court, whether it be a single Judge or a three-Judge

Court by the end of the first week in May, rather than

some kind of a temporary restraining order now that might

run on for at least a month or months while the case is

continuing in this Court?

THE WITNESS: I want to respond, if I may.

Administratively, the most desirable thing for us would

be to have a clear direction one way or another as early as

we can get it.

The later we get it, the more administrative havoc it cre-

ates. The substantive factor is what the key issues are,

rather than the administrative problems.

The substantive issue is what in effect has happened to

the poor people of this city.

THE COURT: What would the cost per month be of

the present system as against the new system, let us say, in

July?

Supposing we ran over into the new period beginning

July Ist to use the old system simply because the Court

was not able to answer, because it was up on appeal or

something like that?

THE WITNESS: The difference in very gross [125] terms

is approximately an eight and a half per cent difference or

lower cost with the new system.

THE COURT: What would the cost of the State be?

THE WITNESS: The cost of the State, let’s see if I can

do that for you right quickly.

We are spending approximately in public assistance at this

point, in round numbers, about a billion dollars.

At this point, a twelfth of that, less eight and a half per

cent would give us the figure.

THE COURT: What is it, approximately?

THE WITNESS: Let me try to do my arithmetic very

quickly.

I think we would be talking somewhere in the neighbor-

hood of somewhere around ten million dollars, where the

City would be somewhere around a third of that.

THE COURT: Ten million dollars a month?

THE WITNESS: Yes. I may have to check that more

carefully.

THE COURT: All right, thank you.

[126] THE COURT: Go ahead.

MR. ALBERT: No further questions at this time.

CROSS EXAMINATION

BY MR. WEINBERG:

Q. One or two question.

If the new statute mandated an increase for everybody

on Welfare, and changed the standard in an appreciable way,

wouldn’t it require the same sort of administrative havoc

or horror that you referred to? A. No. What I think I

said is if we were advised in the first week of May we can

produce by July Ist.

Q. That is purely a function of the time involved and

not of the substantive changes of the value? A. If I get a

change of signal in time, that is what I say.

Q. Isn’t it a fact that this change in the amount of time

that your department has within which to cooperate and

make the necessary changes and not the direction in which

the statute makes the individual amounts received by any

one of the recipients— A. What you are saying is true, but

I think there [127] is an overlay in this example, if apply- ,

ing a 6.3 increment across the board, that is one order of

business. If you now have that review budget and pick out

special grants, that is another order of business.

I would say that primarily we need two monthe /» insti-

tute any major budget change across the board.

Q. You said it takes you about two months to change

the amount that various welfare clients in New York are |

going to receive.

nisl iicnetenaneannissiil

————— Ticeiereieaitell Es ~~

a —— Marsan

Let’s talk about this. Suppose you were entitled, let’s

say, on June Ist, that the statute was going—had been

declared invalid, and that you had to revert to the old sys-

tem, in your direct testimony you used the words “havoc”

and “‘consternation.”’ Isn’t it a fact that the amount every

welfare recipient gets is on tape? A. Yes, as you change

the budget you change the tape.

Q. You don’t throw it away? A. You amend the tape.

Q. And wouldn’t it be a simple matter to retain the

existing tapes? A. The consequences would be to retape

the whole case load.

[128] Q. Would it be more work to do that than change

the tape? A. I wouldn’t be in a position to answer that.

I don’t know that I am competent in that area.

Q. I am trying to learn myself now.

As I understand it, there are tapes which list each wel-

fare recipient? A. I couldn’t respond to you responsively,

counselor. If we get a change in signals come June Ist, we

are going to be in trouble and so are the poor people in the

City.

Q. You are not answering my question. A. That is the

only way I can answer it.

Q. You have tapes for each welfare recipient indicating

how much they are going to get, and that tape reflects

what the recipient gets at present, such as if he gets $100

a month, under the change that person is going to get a

different amount, it might be higher or lower—you say it

is going to take you two months in effect to tool-up for

that change? A. That is correct.

Q. Suppose you were informed in the middle of that

period, say on June Ist, that you had to retain the pay-

ments that were presently given under the [129] present

statute. A. Yes?

Q. What I would like to know is how long it would take

before you can issue checks at the present amount?

In other words, continue what you are now doing. A.

If we haven’t gotten to the point of changing the tape and

we could retain our budget we would be able to do it.

If we had gone past the point of no return and in fact

rebudgeted all clients, we would have serious difficulty in

our ability to send checks out.

Q. Do you destroy the records of what you did in the

past? A. We do not. We do an individual budgeting sheet

for every client and this is done by the Budget worker and

it is processed on the tape, amending the tape we have,

changing the tape we have so that they come out in a dif-

ferent way when we plug in the computing system.

I will say to you clearly and simply that if we get a

change that comes in the middle of that period there is a

serious problem—serious difficulty for us to be able to go

the old way or the new way.

{130} Q. You would have to go one way or the other;

you would have to issue checks? A. Obviously, and the

only check we can issue with confidence would be the

check we were in the middle of preparing. [f we were ready

to start the new standard and if we had to go back to the

current standard, we would have troubie.

If we continued right now with the assumption of main-

taining the current standard, and June Ist advised we have

to change it, we would have trouble. I am saying we need

approximately two months to implement a responsible

change.

Q. Commissioner, did I understand you correctly that

it is your assumption that you are continuing now to pay

the present payment after July Ist? A. No. Let’s not put

words in my mouth. Assuming that, you would have the

same problem.

Q. You can straighten it out with the check the follow-

ing month? A. With the consequence of what would hap-

pen to people in the meantime, plus an additional problem

of laying on a rebudgeting process for the entire rebudget-

ing.

Q. Everybody would get a check and the check [131]

for the subsequent month would contain the old amount?

A. They might not be able to get the subsequent amount

until the next pay period or the one after that. It might

take time to retool. There is no way, counsel, that you

can walk away from the issue of administrative problems

that would be raised around what flows out of changes in

midstream.

MR. WEINBERG: I have no further questions.

REDIRECT EXAMINATION

BY MR. ALBERT:

Q. This rebudgeting is done, commissioner, is done with

the individual welfare center around the City? A. Yes, in-

dividual workers and case loads and individual budget forms.

Q. Checks are issued from where? A. They are cen-

tra'ly made by the central office.

Q. The calculations are done where? A. The central

office turns out the check based on the information that is

supplied by the local center.

Q. Is it a fact that you have announced publicly that

the cyclical grant to be issued on [132] July Ist is not go-

ing to be issued? A. That is correct.

Q. What steps will you have to take to insure it won’t

be issued, or effectuated— A. We have to pull out of our

processing setup all the authorizations for each case that

are entitled to receive that cyclical grant.

Q. That will involve the individual case workers also?

A. That we probably will not have to use the individual

case worker for.

Q. Under the present system, under the law as it now

stands, is the obligation your’s and your case workers to

inform clients if they are asked certainly that the grant is

lost or being reduced come July Ist? A. Yes.

Q. Does the law of New York require you to do that?

As to what you understand.

MR. WEINBERG: Objection.

THE COURT: Sustained.

BY MR. ALBERT:

Q. If any client asked for things after July Ist that are

being eliminated, would it be your obligation to answer that

client— [133] A. It would be.

Q. That would continue to be the case from now right

on through July Ist?

MR. WEINBERG: I object to any of these questions.

THE COURT: Yes. I don’t think it is necessary. It is

clear that is so.

That will be all on redirect?

Thank you, Commissioner, for your help.

Next witness.

MR. WEINBERG: Your Honor, I move to strike the tes-

timony of both these witnesses, although they are distin-

guished gentlemen and experts in their field, as irrelevant.

THE COURT: It is relevant on the question of the juris-

diction of the Court.

Your motion is denied.

Do you have any witnesses?

MR. WEINBERG: Yes.

THE COURT: Let’s have them, please.

_ — ON eta on is

K. Letter from Judge Weinstein to Chief Judge Lum-

bard (Document No. 20)

UNITED STATES DISTRICT COURT

Eastern District of New York

Brooklyn, New York 11201

Chambers of

Jack B. Weinstein By Hand

District Judge

April 24, 1969

Honorable J. Edward Lumbard

Chief Judge, U.S. Court of Appeals,

Second Circuit

United States Court House

Foley Square

New York, New York

My dear Chief Judge:

Pursuant to section 2284 of title 28 of the United States

Code, I enclose a copy of my memorandum and order filed

today in Rosado v. Wyman, 69-C-355, recommending ap-

pointment of a three-judge court.

Your attention is respectfully called to the memorandum

and attached temporary restraining order suggesting the

desirability, from the point of view of all parties, of an

early resolution of the issues in this case.

Very respectfully,

/s/ Jack B. Weinstein

L. Memorandum and Order of Judge Weinstein

Convening a Three Judge Court and Issuing

a Temporary Restraining Order (Document

No. 21)

This is a class action to declare invalid section 131-a

of the New York Social Services Law, effective July Ist

of this year, fixing maximum benefits for certain classes of

welfare recipients in the state. Plaintiffs, residents of

Nassau County and the City of New York who are pres-

ently receiving welfare benefits which will be substantially

reduced under the new law, have moved for a temporary

restraining order. Defendants have moved for the con-

vening of a three-judge court. For the reasons stated

below, both motions are granted.

Plaintiffs allege that the New York statute violates the

Equal Protection Clause of the Fourteenth Amendment

of the United States Constitution and the Social Security

Act of 1935, as amended, and the regulations of the United

States Department of Health, Education and Welfare, con-

ditioning receipt of federal aid and its use by the states

in their welfare programs. In brief, it is the contention

of plaintiffs that federal law requires New York State,

if it is to participate in the federal welfare reimbursement

program, to take into account increases in the cost o: living

in computing new benefit levels; that the new state statute

violates federal standards by arbitrarily decreasing the

sums permitted to be paid to welfare recipients and by

arbitrarily discriminating against Nassau County residents

in reducing their payments substantially below those avail-

able to New York City residents without any basis in cost-

— ——— nnmanachanses.

of-living differentials; and that the new state law, if it

becomes operative, will cause severe and irreparable harm

to plaintiffs and their infant charges.

At this preliminary stage of the litigation it is important

to note that plaintiffs are not contending that federal law

or regulations require the states to provide any welfare

benefits. The power of the legislature to determine how

the state’s resources should be allocated through the levy-

ing of taxes and the appropriations of state monies is not

being challenged. Rather, it is plaintiffs’ position that

when a state chooses to participate in the federal welfare

program and receives federal appropriations, it must com-

ply with valid federal conditions.

We first address ourselves to the question of a three-

judge court. The way the issues have been framed by the

parties, they can be broken down into two questions: first,

whether a three-judge court is required to hear plaintiffs’

equal protection claim and, second, if a three-judge court

would be required, whether it should be convened now or

whether a single judge should first decide the statutory

cost-of-living claim.

A three-judge court is necessary to hear plaintiffs’ equal

protection argument. It is clear that it raises a substantial

federal question. The Supreme Court’s opinion in Shapiro

v. Thompson, —— U.S. —, 37 U.S.L.W. 4333 (1969), de-

cided this past Monday, establishes that the Equal Protec-

tion Clause has wide application in the welfare area and

suggests thai the purpose of conserving funds may not, in

and of itself, support grossly dissimilar treatment between

similarly situated individuals.

Plaintiffs allege that the classification of New York City

residents separate and apart from non-City residents—

particularly those in Nassau County—is an invidious dis-

crimination. it is contended that the distinction is not

based on need since the cost-of-living for welfare recipients

in Nassau County is equal to, or higher than, that in New

York City. Under the present law Nassau County is

grouped with New York City in determining the schedule

of payments. Under the proposed law it is grouped with

counties outside the City; as a result, welfare payments

will be substantially lower than those for New York City

residents. The differences are, it is argued, so far out-

of-line with cost-of-living differences between the City and

County as to constitute an irrational, invidious and uncon-

stitutional discrimination. We cannot, on the record before

ws, say that this claim is frivolous.

The two arguments that plaintiffs present against con-

vening a three-judge court on this issue are not persuasive.

The fact that they are seeking a declaratory judgment

rather than injunctive relief, in the circumstances of this

case, is merely a semantical, not a practical, difference. A

declaratory judgment would have an effect identical to an

injunction. In their complaint plaintiffs ask for “such

other relief” as is appropriate and the Court will have the

power to grant an injunction. That one may be required

is sugge-ted by the fact that plaintiffs are now secking a

temporary restraining order.

The contention of plaintiffs that, so far as Nassau resi-

dlents are concerned, a statewide statute is not under at-

tack, is without merit. Challenged is the state’s entire plan

for setting levels of welfare payments. Plaintiffs’ attack,

if fully successful, may have an effect on welfare recipients

im every county in the state.

The second question is whether this Court should refrain

from convening a three-judge court until it decides the

statutory cost-of-living issue. Plaintiffs’ argument that

this is a separate and independent claim and that the statu-

tory issue should be decided first, in an attempt to avoid

reaching the constitutional issue, is normally persuasive.

In this case, however, all parties agree that time is of the

essence. Were the Court to decide the statutory claim first

and decide it against plaintiffs, a three-judge court would

then need to be convened. The delay would be costly to

all concerned.

A three-judge court appears to be the appropriate vehicle

for speedily resolving all the issues in this case so that

uncertainty may be eliminated as soon as possible. A direct

appeal to the Supreme Court would lie from a three-judge

determination. That Court can move quite expeditiously

in matters of this sort, particularly with regard to a stay.

Should it subsequently be determined that a three-judge

court was not required, the single judge’s decision, as part

of that three-judge court, would become the opinion of

the Court.

We turn now to the question of whether a temporary

restraining order should be granted pending the convening

of a three-judge court.

Extensive briefing, argument, affidavits of the individual

plaintiffs, and experts’ testimony in Court requires a find-

ing at this preliminary stage of the litigation that plaintiffs

have a substantial probability of establishing the validity

of their claims and the right to the remedies they seek,

both provisionally and permanently. These findings, it

should be emphasized, are not findings on the merits of

the action.

Both sides have indicated that prejudice will result

should section 131-a be declared invalid after administra-

’

from keeping the present system in effect on July Ist.

Plaintiffs’ testimony supports a provisional finding that

the new statute will cause welfare recipients to lose funds

required to keep them at the level of bare subsistence. The

state’s witness testified that, on the one hand, many recipi-

ents will receive higher payments under the new system

tive action has been taken which would prevent the state |

and, should the state commence payments under section

13l-a, the state will not be able to obtain reimbursement

if the section is struck down. On the other hand, he stated,

it will reimburse those whose payments were illegally re-

duced. r

The sums involved are large. It is estimated that pay-

ments under the new system will be approximately

$10,000,000. a month less than under the old. And in some

eases reductions to welfare recipients run in the order

of 20°¢. Thus, both the state and many welfare recipients {

may be irreparably harmed if payments made under the

new statute are ultimately determined to be illegal.

Witnesses for both sides indicated that it would take

between six to eight weeks to change from one system to |

the other. The state’s testimony indicated that it was

possible to prepare fcr the new system under section |

131-a while being able to remain in a position to continue

the present system should that be required. This could be |

done, state experts believe, by preserving the present elec-

tronic data processing tapes (or by making a copy of :

them), while making new tapes in planning for the new |

system. Since the plaintiffs’ witness indicated that the

City intends to proceed by modifying the present tapes,

it is important that the state take steps for their preserva-

tion.

_—— oe.

Accordingly, the Court is sign) and filing a temporary

restraining order today and is w,. :

oe a sa : iting to the Chief Judge

of this Circuit notifying him of ts Maeibiaiciattalt tad

three-judge court ought to be c weg

; : .. lvened pursuant to sec-

tion 2284 of title 28 of the Unite ates Code. The Court

‘ ne GPT

is striking from the plaintiffs hoes Sa ae

to announcements to welfare r.

ipients. The Court can

and se tae ete : sone of all fare officials to try to

minimize the anxiety of welfare). t

The twenty day period to ane eupiree on Apell 9

1969. Because of the necessity eee ae

or speed, this time will

not be extended. Defendants an, . .. :

: . plaintiffs are advised to

have their papers seeking summ: . a end ot ot

relief served and filed on April), se geod - o oer

granted until May 2, 1969 to | I ad aco

briefs. All undecided motions ame reply papers and

. be referred to the three-

judge court.

So ordered.

Dated: Brooklyn, New York

April 24, 1969

Jack B. WEINSTEIN

U.S.D.J.

OO a

78 |

M. Temporary Restraining Order Pending Determina- |

tion by Three Judge Court (Document No. 19) |

[Title Omitted in Printing]

Plaintiffs having moved this Court pursuant to Title 28,

United States Code, Section 2284(3), for a temporary re-

straining order restraining Defendant Wyman from imple- |

menting and putting into effect the system of ““maximum

monthly grants” and schedules of need prescribed by New

York Social Services Law Section 131l-a, added by Laws a

Ch. 184, March 31, 1969, and this motion having been

considered by this Court:

Upon the pleadings, affidavits and briefs submitted on

behalf of the parties, the testimony taken in open court,

and the hearings held to date; and upon the finding by this ,

Court that (1) substantial questions have been raised by

plaintiffs about the validity of said Section 131-a, insofar

as it effectuates a reduction in the grant levels of public

assistance, which require further consideration by a statu-

tory three-judge court, and (2) New York State, its sub-

divisions and recipients of public assistance throughout the

State of New York will suffer irreparable injury if the prep-

arations which are made for implementation of said reduc-

tions will prevent the continuation of grants at present

levels if this Court finds the reductions invalid, it is

ORDERED, ADJUDGED AND DECREED THAT,

pending hearing and determination by a statutory three-

judge court of the validity of the reductions in public |

assistance effectuated by said Section 131-a:

1. Defendant Wyman, his successors in office, agents

and employees, and all persons in active concert and par-

ticipation with them, including local social services officials

administering the Aid to Families with Dependent Children

program under State supervision (insofar as said officials

have actual notice of this temporary restraining order) are

hereby restrained from denying, reducing or discontinuing

public assistance benefits pursuant to said Section 13 1-a.

Benefits which may not be denied, reduced or discontinued

under this order include both regular recurring grants and

special grants now available to public assistance applicants

and recipients (including the quarterly “flat grant” in New

York City and special needs grants throughout the State).

Applications for regular and special grants shall be processed

in the ordinary course of business without delay or inter-

ruption and shall be granted to all persons eligible under

current standards, despite any provision to the contrary in

said Section 131-a.

2. The Defendant Wyman, his successors in office, agents

and employees, and all persons in active concert and partici-

pation with them, including local social services officials

administering the Aid to Families with Dependent Children

program under State supervision (insofar as said officials

have actual notice of this temporary restraining order) may

take steps to prepare for conversion to the reduced grants

on July 1, 1969, provided that no such step will prevent

continued and uninterrupted payments under the present

system or some other valid system if Section 131-a is ulti-

mately found invalid.

Dated: Brooklyn, New York

April 24, 1969

/s/ Jack B. Weinstein

U.S. District Judge

N. Designation of Three Judge Court by Chief Judge

Lumbard (Document No. 22)

[Title Omitted in Printing]

Having been notified by the Honorable Jack B. Weinstein,

United States District Judge for the Eastern District of

New York, that an application has been filed in the above

matter for relief pursuant to Title 28 United States Code

Section 2281, pursuant to Title 28 United States Code

“a

Section 2284 I hereby designate the following judges, in

addition to the Honorable Jack B. Weinstein, to hear and

determine said cause as provided by law: Honorable

Leonard P. Moore, United States Circuit Judge, and Hon-

orable Jacob Mishler, United States District Judge for the

Eastern District of New York.

IT IS HEREBY ORDERED that this order be filed in

the above entitled cause in the said District Court.

/s/ J. Edward Lumbard

Chief Judge, United States

Court of Appeals for the

Second Circuit

Dated: New York, N. Y.

April 25, 1969

_ — secon cient ante

O. Defendants’ Answer (Document No. 28)

UNITED STATES DISTRICT COURT,

Eastern Districr or New York.

[Title Omitted in Printing]

Defendants, by their attorney, Louis J. Lefkowitz, At-

torney General of the State of New York, as and for an

answer to the complaint herein, respectfully allege:

As TO PLAINTIFF’S STATEMENT OF CLAIM:

First: Deny knowledge or information sufficient to form

a belief as to each and every allegation set forth in para-

graph ‘‘12’’, and in the second sentence of paragraph ‘*3”’,

and the third sentence of paragraph ‘‘6”’.

Seconp: Deny each and every allegation set forth in

paragraph ‘‘5’’ except admit that New York City com-

menced a demonstration project on the date alleged which

eliminated special needs grants as alleged therein.

Tuirp: Deny each and every allegation set forth in

paragraph ‘‘8’’ except admit sub-paragraphs (b) and (ce)

thereof.

Fourtn: Deny each and every allegation set forth in

sub-paragraphs (c), (d), (e) and (f) of paragraph ‘‘9”’

and respectfully refer this Court to the language of 42

U.S.C. 602-a § (23) referred to by plaintiffs.

Firrx: Deny each and every allegation set forth in

paragraphs ‘‘11’’ and ‘‘13’’, and sub-paragraph (b) of

paragraph ‘‘10’’.

]

Defendants’ Answer (Document No. 28).

AS TO PLAINTIFFS’ FIRST CAUSE OF ACTION:

Srxtu: Deny each and every allegation set forth in the

second sentence of paragraph ‘‘2’’ thereof.

As TO PLAINTIFFS’ SECOND CAUSE OF ACTION:

Sevento: Deny each and every allegation set forth in

paragraph ‘‘2’’ thereof.

_— —— EEE ——_ ee, SS eer”

As TO PLAINTIFFS’ THIRD CAUSE OF ACTION:

EicHtu: Deny each and every allegation set forth in

paragraphs ‘‘2’’ and ‘‘3’’ thereof, except adinit the dis- +

continuance of the special needs grants referred to therein.

As TO PLAINTIFFS’ FOURTH CAUSE OF ACTION:

Nixtu: Deny each and every allegation set forth in

paragraphs ‘‘1’’, ‘*5’’, ‘*6’’, “*7’? and ‘‘8”’ thereof.

Trento: Deny knowledge or information sufficient to ,

form a belief as to each and every allegation set forth in

paragraph ‘‘4’’ thereof.

AS TO PLAINTIFFS’ FIFTH CAUSE OF ACTION:

Exeventu: Deny each and every allegation of para-

graphs ‘‘1’’ and ‘‘2’’ thereof.

As TO PLAINTIFFS’ ‘‘FURTHER CLAIM FOR

DECLARATORY JUDGEMENT’’:

——— —_—_—-, -———_— |

TweLrrH: Deny each and every allegation set forth in

paragraphs ‘‘1’’ and ‘‘2’’ thereof. S |

i — nar rit

Defendants’ Answer (Document No. 28).

THIRTEENTH: Deny plaintiffs’ allegation that defend-

ant will cause ‘irreparable injury unless enjoined forth-

with’’. ;

As AND FOR A FIRST COMPLETE DEFENSE, DEFENDANTS ALLEGE:

FourteENtTH: That this Court lacks jurisdiction over

the subject matter herein.

As AND FOR A SECOND COMPLETE DEFENSE, DEFENDANTS ALLEGE:

’

FirteextH: That plaintiffs lack standing to institute

this action as a class action under Rule 23, Fed. R. Civ. P.

since they are not typical members of the class of which

they assert themselves to be a part.

As AND FOR A THIRD COMPLETE DEFENSE, DEFENDANTS ALLEGE:

SixTEENTH: That this action should be dismissed for

failure to join the Secretary of Health, Education and

Welfare as a party defendant.

As AND FOR A FIRST COMPLETE DEFENSE TO CAUSES OF

ACTION 1 THROUGH 4, DEFENDANTS ALLEGE:

SrvENTEENTH: The conformity of New York Social

Services Law § 131-a to the Social Security Act is presently

being considered in an administrative proceeding within

the United States Department of Health, Education and

Welfare. That said Department has requested voluminous

information of the New York State Department of Social

Services in order to determine whether §13l-a so con-

forms.

Defendants’ Answer (Document No. 28).

Eicuteentu: ~That said Department of Health, .Educa-

tion and Welfare has primary jurisdiction over this issue

and that this Court therefore lacks jurisdiction over the

instant action. aed

AS AND FOR A SECOND COMPLETE DEFENSE TO CAUSES OF

ACTION 1 THROUGH 4, DEFENDANTS ALLEGE:

NintTeENTH: That in the year 1968, defendants fully

complied with the requirements of 42 U.S.C. § 602-a (23)

by adjusting the standard of need and maximum payments

employed by the State of New York in conformity with that

statute. That this adjustment was approved by the De-

partment of Health, Education and Welfare of the United

States. A copy of said adjustment schedules adopted

thereunder and of tne letter approving said adjustment by

the Department of Health, Education and Welfare is

. marked [’xhibit ‘‘A’’ annexed hereto.

TwentietH: That this constituted complete compliance

with the requirements of § 602-a ne

AS AND FOR A, THIRD COMPLETE DEFENSE TO CAUSES OF

ACTION 1 THROUGH 4, DEFENDANTS ALLEGE:

Twenty-First: That aside from the compliance in 1968

set forth in paragraphs ‘‘Nineteenth’’ and ‘‘Twentieth’’,

supra, §13l-a completely complies with all applicable

Social Security Act requirements.

AS AND FOR A FOURTH COMPLETE DEFENSE TO CAUSES OF

ACTION 1 THROUGH 4, DEFENDANTS ALLEGE:

TweENTy-sEconD: That the alleged non-conformity of

§131l-a to requirements of 42 U.S.C. § 602:a (23) is not a

ee ee

Defendants’ Answer (Document No. 28).

ground for declaring the invalidity of, or enjoining, the

statute since, even if proven, it could do no more than

require exclusion of New York State from receipt of Fed-

eral grants under the Social Security Act.

As AND FOR A FIFTH COMPLETE DEFENSE TO CAUSES OF

ACTION 1 THROUGH 4, DEFENDANTS ALLEGE:

TwenTy-THIRD: That a rational basis exists for the dis-

parity in maximum monthly grants and allowances as be-

tween New York City and the remainder of the State of

New York.

| Wuererore, defendants respectfully request judgment

dismissing the complaint.

Louis J. LerxKow1Tz

Attorney General of the

State of New York

Attorney for Defendants

(Verified by Philip Weinberg, April 28, 1969. )

P. Notice of Defendants’ Motion for Summary

Judgment and Statement Pursuant to Rule

9(g) (Document No. 26)

[Title Omitted in Printing]

SIRS:

PLEASE TAKE NOTICE that upon the annexed affidavit

of Joseph H. Louchheim, duly sworn to the 28th day of

April, 1969, and upon the pleadings herein, the exhibits an-

nexed thereto and all the proceedings heretofore had herein,

the undersigned will move this Court at a time and place

to be fixed by this Court for an order under Rule 56 of

the Federal Rules of Civil Procedure for summary judgment

in favor of the defendants upon all of the grounds as set

forth in the moving papers herein and for such other and

different relief as to the Court may seem just and proper.

Dated: April 28, 1969.

Yours, etc.,

Louis J. Lefkowitz

Attorney General of the

State of New York

Attorney for Defendants

[Title Omitted in Printing]

STATEMENT OF NO MATERIAL FACTS

PURSUANT TO RULE 9(g)

Defendants contend that there is no genuine issue to be

tried with respect to the issues in this case.

Dated: New York, N.Y. Louis J. Lefkowitz

April 29, 1969 Attorney General of the

State of New York

Attorney for Defendants

/s/ Philip Weinberg

Principal Attorney

a = eee

Q. Affidavit of George W. Chesbro in Support of

Defendants’ Motion for Summary Judgment

(and Exhibits A, C, F, G, I, J, K Thereto)

(Document No. 26)

UNITED STATES DISTRICT COURT,

Eastern District or New York.

[Title Omitted in Printing]

Stare or New York )

County or ALBANY \

Grorcr W. Cuessro, being duly sworn, deposes and says:

I am the First Deputy Commissioner of Social Services

of the State of New York and the acting Commissioner of

said Department. I make this affidavit in support of the

motion of the defendants for summary judgment in this

action. This action seeks judgment declaring Social Services

Law §131-a, as enacted by Laws of 1969, ch. 184, to take

effect July 1, 1969, to be invalid (1) as in conflict with

Social Security Act provisions ‘establishing eligibility for

State participation in federal grants under the Aid to De-

pendent Children (herein ‘‘ADC’’) program, and (2) as

violative of the equal protection clause of the Fourteenth

Amendment. Neither of these contentions warrant the

declaratory judgment or injunction sought by plaintiffs.

There is no material issue of fact herein.

The ADC program is part of the Social Services pro-

gram of the State of New York 4 established by the

Social Services Law and administered by this Department.

It is one of several programs operated by the State for

the benefit of welfare recipients, including aid to the blind,

home relief, aid to the disabled, and the like. Under

Social Services Law § 131, which establishes the general

Affidavit of George W. Chesbro, in Support of Defendants’

Motion for Summary Judgment (Document No. 26).

criteria for assistance, care and services to be given under

these programs, it is ‘‘the duty of public welfare officers,

insofar as funds are available for that purpose, to provide

adequately for those unable to maintain themselves.’’? The

test of adequacy under that statute ‘‘shall be the suffic'ency

thereof for maintenance in accordance with standards of

public health in the community * * *,’’? §131(3). Pursuant

to this statutory responsibility, the Department of Social

Services has determined the adequacy of such assistance

in all categories of public assistance through the eomputa-

tion from year to year of a standard of assistance. This

standard is computed on the basis of the pricing of the

component items which enter into the level of subsistence

found to be necessary for a welfare recipient. These items

include food sufficient to provide a well-balanced nutri-

tional diet, as well as adequate clothing, household items,

laundry and personal incidentals. A level of needs is

arrived at by determining the cost of these components

and under New York law includes the amount sufficient to

cover all of these items, exclusive of rent and fuel for

heating, which are added to the allowance of the recipient

on a separate basis. The Department, on an annual basis,

reprices these amounts, basing its revisions on the cost of

food statistics supplied by the Bureau of Labor Statistics

of the United States Department of Labor for the New

York City and Buffalo areas—the only two such statistics

available for this State. The average of these two districts

is taken. As well as, pricing of specific items of food and

other articles is done hy Department representatives

throughout the State. Utilities costs are supplied by the

utilities companies serving various regions of the State

and computed into the monthly allowance figure. Depart-

ment regulations require a recomputation whenever the

price level rises 2% or more.

Affidavit of George W. Chesbro, in Support of Defendants’

Motion for Summary Judgment (Document No. 26).

Pursuant to this arrangement, in August, 1968, the De-

partment computed a revised standard of assistance for

various parts of the State. The State was divided into

three regions and the amounts payable to welfare recipi-

ents were computed, based on cost of living increases, as

follows (figures based on family of 4 receiving ADC) :

SA-1 SA-2 SA-3

(New York City (All counties not (Allegany,

Dutchess, Greene, in SA-1 or SA-3) Cattaragus,

Monroe, Nassau, Chautauqua,

Suffolk, Ulster | Erie, Genessce,

and Westchester Niigara, Steuben,

Counties) Wyoaning Counties)

$152-$221 $149-$218 $146-$215

The variation in these figures hinges on the age of the

oldest child in the family. The price schedule is marked

Exhibit ‘A’? annexed hereto. The figures contained are

exclusive of rent and fuel for heating which, as noted, are

paid separately over and: above the schedule allowance.

The difference between the allowance for the three dis-

tricts is the cost of utilities.’ In addition to the schedule

allowance, special grants are available for items for spe-

cial need—moving, security deposits, special diets and the

like—as authorized by Department regulation § 352-5.

These allowances were arrived at by the Department

following exhaustive analysis of the cost of all the com-

ponent items. Pricing sheets illustrating the expenses at-

tributable to various component items are marked Exhibit

‘“B” annexed hereto. This State has since 1935, along

with every other state, received substantial federal grants

for welfare purposes pursuant to the Social Security Act.

Section 602 thereof establishes criteria for participation

in this federal aid. The Social Security Act imposes cer-

tain minimum. requirements upon the state as a considera-

Affidavit of George W. Chesbro, in Support of Defendants’

Motion for Summary Judgment (Document No. 26).

tion for receiving these federal benefits. The states must

establish a standard of need, but no specific amount of

payments is mandated and enacted. As we shall show,

the actual level of payments varies widely as between the

states. In 1968 Congress adopted §602{a) (23), which

requires the states to provide that by July 1, 1969 the

amounts used to determine needs of individuals, and maxi-

mum dollar amounts of public assistance, if any, will have

been adjusted to reflect fully changes in living costs since

such amounts were established. This requires that as a

condition of continuing to receive federal money, each

state revise its standard of need by July 1, 1969, which

New York had done periodically in any event. Federal

regulations (45 CFR § 233.20[a]) interpreted this to mean

that such adjustment was to be made within the period

January 2, 1968 to July 1, 1969. New York complied

with this statute on August 23, 1968 when it adopted, and

the Secretary of Health, Education and Welfare (herein

‘‘HEW’’) approved, the schedules referred to as SA-1,

SA-2, SA-3 (Exh. ‘‘A’’). The letter sent to local Com-

missioners of Social Services throughout the State, by this

Department, expressly stated (Exh. ‘‘A’’, p. 1):

‘The enclosed new schedules of public assistance al-

lowance reflect a substantial rise in living costs that

occurred during the year ending May, 1968.’’

Section 602(a)(23) required any states which imposed

a maximum dollar amount on allowances paid to adjust

such maximum amount. New York was not such a state.

This extraordinarily permissive federal statute contem-

plates the widest variety among state welfare systems. It

was designed to permit states to pay allowances to re-

cipients at levels which the states arrive at irrespective of

the standard of minimum subsistence in that state. Thus a

Affidavit of George W. Chesbro, in Support of Defendants’

Motion for Summary Judgment (Document No. 26).

state need not pay 100% of its own standard of need and

many states do not. Whatever amount that state sees fit to

pay is subsidized in large part by the federal government.

A chart (Exh. ‘‘C’’ annexed hereto) shows that a majority

of states pay far less than their own professed standard of .

need. Mississippi, for example, has a standard of need of

$201 (figures as of April, 1968), yet pays only $55.

Missouri has a standard of need of $305 and yet pays only

$124. New York’s level of $278 is exceeded by only three

_ States of the fifty, and New York pays its full standard of

need, $278 as of April, 1968.*

In 1968 the City of New York established a demonstr. a-

tion project, with the approval of this Department and

HEW, which permitted it to eliminate special grants for

clothing and houschold replacements and substitute there-

’ for a cyclical grant of $100 per person per year. Creation

of this project was requested by the New York City De-

partment of Social Services in order to ‘‘result in a more

equitable distribution across the total caseload of the funds

for ‘special needs’ and recognize more directly the dignity

of the client,’’ and ‘‘relieve front line agency personnel from

the cumbersome, demeaning, conflict-ridden, idiosyncratic,

and administratively cost of client-by-client and item-by-

item decision making’’. The City stated that it expected

to provide a ‘‘model for the administration of assistance

which, if validated, could be replicated within the State

and elsewhere in the nation.’? A copy of the State’s pro-

posal for this simplified payment system, dated August 14,

1968, is- marked Exhibit ‘‘D”’’. It is to be noted that the

City Department expressed its ‘‘firmi belief that the. na-

ture of the urban crisis and the higher social cost of living

* These figures include the components in each schedule of pay-

ments, together with rent and fuel for heating.

alfidavit of George W. Chesbro, in Support of Defendants?

Motion for Summary Judgment (Document No. 26).

in the metropolitan center requires a differential assistance

level in these areas’’ (exh. ‘*D’’, p. 4).. Approval by this

Department was based on the employment by the City of

the flat grant approach to public assistance which avoids

the necessity of the recipient requesting special grants on

an individual basis. It is the judgment of enlightened

Social Services administrators today that the flat grant

concept enhances the dignity of the welfare client and per-

mits him to budget more effectively, as well as reducing

mushrooming administrative costs and freeing caseworkers

for counseling and other professional duties.

In 1969 the State took a substantial step toward imple-

mentation of the flat grant approach. In keeping with its

practice and responsibility of annual re-evaluation, it de-

termined that administrative expenses could be substan-

tially reduced and implementation of the flat grant

approach advanced by the computing of the schedule of

assistance to be furnished so as to end rigid categories

based on the age of the oldest child and substitute therefor

a simplified allowance schedule based on the average age

of the oldest child in a given size household, This sched-

ule was arrived at by adopting the 1968 upward revision

hased on the cost of living increase SA-1, SA-2, SA-3, Exh.

‘*A’’, supra), and using the mean age of the oldest child

in each size family as the basis for the amounts of allow-

ance paid. Thus, for a family of 4, receiving public as-

sistance, the computation of the Department reveals that

the mean age of the oldest child is 10.09, as shown by the

annexed charts (Exhs. ‘‘i’’ and *‘F’’). The monthly al-

lowance (exclusive of rent and fuel) for such a family of 4

with the oldest child of 10 or 11 is presently $191 in the

SA-1 area (New York City, Long Island, ete.). The United

States Government current estimate of the subsistence

level for a family of 4 is $3,535 per year, including shelter

Affidavit of George W. Chesbro, in Support of Defendants’

Motion for Summary Judgment (Document No. 26).

costs and medical care (free in New York State). Esti-

mating the cost of shelter at approximately $1,000 per year

or $83 per month and deducting that as separately allowed,

for New York City, the annual amount of $2,500 was ar-

rived at or $208 per month. This represents an addition of

$17 for a family of 4 ($4.25 per person) to the present

$191. This increment is an approximation of the amounts

presently paid under the New York City cyclica

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