Reply Brief — Wyman v. James

(47987)

Cory

OCT 15 197¢

IN THE ROBERT SEAVER, CLERK

Supreme Court of the United State

OCTOBER TERM, 1970

No. 69

GEORGE K: WYMAN, individually and as Commissioner of

the State of New York, Department of Social Services,

JACK R. GOLDBERG, individually and as Commissioner

* of the Department of Social Services of the City of New

York, Appellants,

v.

BARBARA JAMES, individually and on behalf of her minor

> child, Maurice James, and on behalf.of all other persons

similarly situated,

ATI 19h Zee v ,

hy

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

REPLY BRIEF FOR APPELLEES

JONATHAN WEISS

Davip GILMAN

MFY Legal Services

759 Tenth Avenue

New York, New York

CHRISTOPHER H. CLANCY

Columbia Center on

Social Welfare Policy

and Law

401 West 117th Street

New York, New York

Attorneys for Appellees

eS hrs Ne a i ee ane

(i)

TABLE OF AUTHORITIES

Page

Cases:

ie el Corus ceases 5 ds ure ane 4

> Berger v. New York, 388 U.S. 41 (1967) .............-. 2

Snes, 279 US S28 (1927) ................... 2

> Camara v. San Francisco, 387 U.S. 523 (1967) ........... 4

“Clean Air Act. Eliz. 2c H Sec 100 (1955)............... 4

| Food Drug Act. Eliz. 2c H Sec 100 (1955).............. 4

= Geee- US, 207 US. 1261990 .................5. 4

Hi Harper v. Bd. of Elections, 383 U.S. 663 (1966) .......... 3

Shelton v. Tucker, 364 U.S. 479 (1960) ............000. 2

S Spinelli v. U.S. 393 US. 411 (1969) ..............2.-- 4

7 Water Act 11 & 12 6 c. 42 Section 48 (1948)............ 4

.. Yick Wo v., Hopkins 118 U.S. 356 (1886) .............. 3

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Supreme Court of the United States

OCTOBER TERM, 1970

No. 69

GEORGE K. WYMAN, individually and as Commissioner of

the State of New York, Department of Social Services,

JACK R. GOLDBERG, individually and as Commissioner

of the Department of Social Services of the City of New

York, Appellants,

v.

BARBARA JAMES, individually and on behalf of her minor

child, Maurice James, and on behalf of all other persons

similarly situated, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

REPLY BRIEF FOR APPELLEES

ARGUMENT

I

The reply brief for appellant Wyman suggests new factual

Issues in order to make three elementary claims: 1) that a

visit to a recipient’s home is among the best methods for

2

collecting information, 2) that home visits are an aid in

neglect proceedings; 3) that requiring warrants is inappro-

priate in a welfare setting. These three claims do not bear

up under critical analysis.

The appellant admits, as it must, that there are numer-

ous methods available, other than mandatory home visits,

for the welfare department to ascertain information neces-

sary for the administration of their welfare program. Yet,

the appellants claim that

“‘a reasonable procedure is not made unreasonable

because alternative methods of achieving the same

end exist.” (Reply Brief, p. 2)

Reasonableness is not the issue in this case. Berger v. N.Y.

388 U.S. 41 (1967); Katz v. U.S. 389 U.S. 347 (1967);

Byars v. U.S. 273 U.S. 528 (1927). The appellant may

debate, outside the Constitutional context, as to whether

home visits are indeed useful. (See Union’s amicus.) But,

whether they serve any purpose at all is not determinative

of the Corstitutional question. The intrusion into the home

is an act forbidden by the Constitution. Even if it were the

sole method available of establishing facts, it would be Con-

stitutionally suspect. The existence of “alternative methods

of achieving the same end” necessitates a finding of Uncon-

stitutionality, since whenever alternate methods of achiev-

ing the same end exist, the method least destructive of Con-

stitutional rights must be employed. Shelton v. Tucker,

364 U.S. 479 (1960).

The appellants’ reply brief relates a story of child abuse.

Without a complete transcript of the judicial determination

and findings of fact, it is impossible to tell, whether a home

visit could have prevented or mitigated the abuse. It should

be noted however, that neglect petitions can be issued on

rather slender factual allegations. For example, the appel-

lant (Reply Brief, p. 10) states that if a recipient should

refuse a home visit, not only will the welfare payments be

terminated, but the welfare department may consider “steps:

. . . to protect the child,” i.e., the institution of neglect

proceedings.

a a ae oe. ae. ae

a eS SL LL — —_ <— | a

-

3

Appellant suggests that the right to a prior hearing means

that a recipient can refuse a home visit without fear of loss

of benefits as a “direct consequence” (Reply Brief pp. 10)

of her refusal to allow a home visit. Mrs. James had such

a prior hearing and was told her benefits would be cut off.

Tne hearing officers (who are not attorneys), of course,

only apply the regulations and, not trained in law, do not

consider Constitutional questions. Therefore 2 prior hear-

ing is but an internal review by the welfare agency where

the recipient can choose between allowing the caseworker

into her home or face termination of aid.

It may be true that by allowing government officials to

place television cameras in every home, coupled with the

power to force entry at any time, detection and prevention

of crimes such as murder of a child or adult, or prevention

and detection of health hazards or child abuse, would be

greatly increased. True or not, these are devices which the

Constitution forbids in order to preserve other Constitu-

tional rights, such as the right of privacy and the sanctity of

family life. Appellant does not assert that welfare clients

are unique among the poor or, for that matter, among all

the parents in neglecting or abusing children to a greater

extent, nor could they, as there appears to be no such evi-

dence in that regard. (Of course, the vast majority of

neglect petitions do not speak to physical abuse but emo-

tional climate and moral leadership.) To single out welfare

clients as people who must submit to the intrusion of a

home visit predicated upon fears of potential neglect vio-

lates equal protection. Yick Wo vs. Hopkins, 118 U.S. 356

(1886); Harper vs. Board of Elections, 383 U.S. 663 (1966).

Moreover, there is no statutory or regulatory authority that

the home visit is designed or could be designed as a child

abuse protection procedure; rather this is a purpose now

adduced by the State to justify unconstitutional intrusions.

And in this justification, the State suggests the extent of

arbitrary and humiliating demands that may be imposed

upon a welfare family.

4

“The worker can arrange to see [the child] in the

home.” (Page 4 of Appellants’ brief)

The worker can also demand anything else that he or she

feels necessary for judgment about “the welfare of the

child” and ask in that home, in front of child and parents,

questions that may be embarrasing and humiliating for

both. “The welfare of the child” should not mean unlimited |

discretion by caseworkers to give orders and interrogate

parents and children in their private homes. Appellees do

not seek a broad decision as to the extent of the right of |

privacy of welfare clients that are so clearly threatened by |

the arbitrary powers of the caseworker. All they seek in

this case is the one clear Constitutional protection they

have—freedom from unwanted and unwarranted home visits.

Appellees do not admit that warrants would justify home |

visits. What they assert is that if home visits ever were to

be allowed, the one minimum requirement would be war-

rants. The appellants attempt to distinguish between home

visits and other searches made by warrants. Clearly, if «

warrant procedure were established for welfare home visits,

it would be a warrant procedure differing from other

searches conducted by warrants by other agencies. As in

Camara v. San Francisco, 387 U.S. 523 (1967), entry, of

course, could not be made by force and, as in any proce-

dure for warrants, the warrant must be based upon stand-

ards of what the appropriate objects of searches are and

what external evidence leads to necessity for search. Cf.

Grau v. U.S., 287 U.S. 124 (1932); Spinelli v. U.S., 393

U.S. 411 (1969); 19 ALR3z 727. The English system of

civil warrants provides other examples. Food Drug ct., 1955

4 & S, Eliz. 2c. H Sect 100/5); Water Act 1948 11 & 126

c. 42 Section 48 (3) Clean Air Act, 1956, 4 & 5 Eliz. 2, c.

52 Section 31 and 32. In any event, the question of what

type of warrants and procedures ought to be employed in

conducting a welfare search is not before this Court. What

is before this Court is the question of whether 1) home

visits can ever be permitted when not desired by welfare

clients; 2) if ever permitted, can they be allowed in the ab

5

sence of a warrant. It is up to the welfare department, not

this Court or appellants, to try to establish a warrant sys-

tem if home visits are ever to be permitted with a warrant.

CONCLUSION

The decision below should be affirmed.

JONATHAN WEISS

DAVID GILMAN

CHRISTOPHER H. CLANCY

Attorneys for Appellees