# Appendix — Sailer v. Leger

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1970
- **Citation:** 400 U.S. 956

## Text

FFICE Copy page

ee

in the Supreme Court of the
Rujied States

No. 727 October Term, 1970

WILLIAM P. SAILER, Individually and as Execu-
tive Director of the Philadelphia County Board of
Assistance and STANLEY A. MILLER, Individual-
ly and as Secretary of the Department of Public
Welfare of the Commonwealth of Pennsylvania,
Appellants
v.

ELSIE MARY JANE LEGER, BERYL JERVIS,
Appellees

On Appeal From the United States District Court
for the Eastern District of Pennsylvania.

SINGLE GRR BRIEF FOR
APPELLA , SAILER AND MILLER

FRED SPEAKER
Attorney General
EDWARD FRIEDMAN
Counsel General
JosEPH P. Work
Assistant Attorney General
Attorneys for Appellants

BarRRY A. ROTH

Assistant Deputy Attorney General
Room 238, Main Capitol
Harrisburg, Pa.

nn $$ a
Murrelle Printing Co., Law Printers, Box 100, Sayre, Pa. 18840

TABLE OF CONTENTS .

a PAGE
APPENDIX:
ek a sha deanaee la
le eek etna ee eke eS 6a
SR Ee Ur ae rare wore eer 16a
Pe I nn CSA Anh Au 5A 06 weal 17a
V. Supplemental Stipulation .............. 23a
ee ee Cres hike eae wnk Ween’ 24a
VII. Order Dated Dec. 9, 1969 ........... 33a
VIII. Testimony:
Proceedings of March 3, 1970 ........ 34a
Proceedings of April 6, 1970:
PLAINTIFFS’ EVIDENCE
Deborah Davis:
es Balak Sn GR ba ee 85a
EE eae ilies ik RAE ook ee 96a
Maia Andre:
ee ee ee ke 97a

PLAINTIFFS’ EXHIBITS

1—General Assistance and the Alien in Penn-
ee as ee ne ie Gide MA a8. 08 138a

1X. Order Constituting a Three-Judge Court .. 147a
Tas I OE WE A vk ice ene e wanna 148a

Case Caption la

APPENDIX

SUPREME COURT OF THE UNITED STATES
October Term, 1970

No. 727

WILLIAM P. SAILER, et al.,
Appellants
v.

ELSIE MARY JANE LEGER and BERYL JERVIS,
Appellees

Appeal from the United States District Court for the
Eastern District of Pennsylvania

Filed September 21, 1970
Probable Jurisdiction Noted December 14, 1970

7

IN THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DIS-
TRICT OF PENNSYLVANIA

2a Docket Entries

Civil Action No. 69-2869

Elsie Mary Jane Leger, 716 North Broad Street, Phila-
delphia, Pennsylvania on behalf of herself and all
others similarly situated,

Plaintiffs
v.

William P. Sailer, individually and as the Executive
Director of the Philadelphia County Board of Assist-
ance, 1400 Spring Garden Street Philadelphia, Penn-
sylvania, Stanley A. Miller, Secretary of the Depart-
ment of Public Welfare of the Commonwealth of
Pennsylvania Health and Welfare Building Harris-
burgh, Pennsylvania,
Defendants

e.

CIVIL DOCKET
UNITED STATES DISTRICT COURT

Attorneys:

For plaintiff: Jonathan M. Stein, Barry S. Kohn, 313
So. Juniper Street 19107.

Docket Entries 3a

For defendant: William C. Sennett, Attorney General,
Joseph P. Work, De. Atty. General, State Capitol,
Harrisburg, Pa.

Date, 1969

Dec. 9, PIff’s. application to proceed in forma pau-
peris and Order granting same, without prepay-
ment of any fees, costs or security thereof, filed.
HKW

Dec. 9, Complaint filed.
Dec. 9, Summons exit.

Dec. 9, Motion and Order granting temporary re-
straining Order that defts. are restrained from
denying General Assistance to plff. solely be-
cause she is not a citizen of the U. S., filed.
HKW.

Dec. 9, PIff’s. memorandum in support of motion for
temporary restraining order, filed.

Dec. 29, Answer filed.
Dec. 29, Case listed for trial.

1970

Jan. 13, Order, Wood, J., continuing hearing of
1/15/70 to a date to be fixed by the Court sub-
sequent to 2/16/70, filed. HKW. Entered and
copies mailed 1/13/70.

Jan. 30, Order that application to refer this case to a
three-judge court will be heard on 3/3/70 at
10:00 a.m., filed. HKW. Entered and copies
mailed 1/31/70.

4a Docket Entries

Mar. 3, Argument sur: Plff’s. motion for three-judge
court and for a class action. HKW.

Mar. 6, PIff’s. motion for leave to amend complaint
to add a party and for a temporary restraining
order, filed.

Mar. 10, Motion to amend complaint and notice of
same, filed.

Mar. 12, Order, designating Arlin M. Adams, C.J.;
C. William Kraft, D.J.; and Harold K. Wood,
D.J.; as members of three-judge court, filed. En-
tered and copies mailed 3/13/70. Hastie.

Mar. 13, Memorandum and Order that motion for
temporary restraining order directing the Com-
monwealth of Pa. to pay welfare to Beryl Jervis
is denied without prejudice, filed. HKW. En-
tered 3/16/70, copies mailed 3/13/70.

Mar. 13, PIff’s. motion for determination of class ac-
tion, and memorandum in support of same, filed.

Mar. 13, PIff’s. motion to amend complaint and no-
tice of same, filed.

Mar. 16, PIff’s. memorandum of law for convening
three-judge court, filed.

Mar. 16, Order fixing hearing before three-judge
court on 4/6/70 at 10:00 a.m., filed. Entered
and notice mailed 3/17/70. HKW.

Mar. 18, Transcript of 3/3/70, filed.

Mar. 23, Summons returned ‘“‘on 1/13/70 as to Stan-
ley A. Miller” and ‘fon 3/17/70 as to Wm. P.
Sailer” served and filed.

Docket Entries 5a

Mar. 31, Stipulation as to certain facts, filed.

Mar. 31, Memorandum of law in support of plff’s.
motion for declaratory judgment and preliminary
and final injunction, filed.

Apr. 2, Memorandum of law in opposition to plff’s
motion for declaratory judgment and preliminary
and final injunction, filed. Adams, C.J., HKW.

Apr. 6, Hearing sur: Preliminary and Final Injunc-
tion—CAV.

Apr. 16, Supplemental stipulation as to certain facts,
filed.

Apr. 16, Suppl. memorandum of law in support of
plff’s. motion for declaratory and preliminary
and final injunction, filed.

Apr. 21, Transcript of 4/6/70, filed.

Jul. 13, Opinion and Order, Adams, C. J. and Kraft,
D. J., that defts. are enjoined from enforcing that
portion of the Penna. Statute which denies gen-
eral assistance to persons because of alienage,
with Dissenting Opinion by Wood, J., filed. En-
tered and notice mailed 7/13/70.

Aug. 6, Notice of appeal to the Supreme Court of the
United States by W. P. Sailer, et al., and certifi-
cate of service, filed.

Sep. 28, Record transmitted to U. S. Supreme Court.

6a Complaint

II.
COMPLAINT

(For declaratory judgment and to enjoin preliminar-

ily and permanently the denial of General Assistance

to plaintiffs the United States, in derogation of their

rights under the laws and the Constitution of the
United States.)

1. The jurisdiction of this Court is invoked under
Title 28, U.S.C. Sec. 1343 (3) and (4), 42 US.C.
Sec. 1983, U.S.C. Secs. 2281, 2284 and 28 U.S.C.
Secs. 2201, 2202, this being an action for declaratory
judgment and preliminary and permanent injunction
to redress the deprivation under color of state law of
rights, privileges and immunities secured to plaintiffs
by the laws and the Constitution of the United States.

2. Plaintiffs are:

(a) Elsie Jane Leger, an alien continuously
residing in the United States for four and half
years, presently residing at 716 North Broad
Street, Philadelphia, Pennsylvania;

(b) All other residents of the Common-
wealth of Pennsylvania, who are subject by the
laws and policies complained of herein to denial
of General Assistance, regardless of need there-
for, solely because they are not citizens of the
Unites States.

Complaint 7a

3. Named plaintiff will fairly and adequately
represent the interests of the class of Pennsylvania
residents described in Paragraph 2(b) above, on
whose behalf she sues; the persons constituting said
class are so numerous as to make it impractical to
join them all before this Court; the claims of named
plaintiff are typical of the claims of said class; and
there are herein questions of law and fact common
to said class. Named plaintiff has requested relief
for said class and will prosecute this action with a
vigor commensurate with its importance to all mem-
bers of said class.

4. Defendants are:

(a) William P. Sailer, Executive Director of
the Philadelphia County Board of Assistance and
a resident of the Commonwealth of Pennsyl-
vania and a resident thereof.

(b) Stanley A. Miller, Secretary of the De-
partment of Public Welfare of the Common-
wealth of Pennsylvania and a resident thereof.

The foregoing public officers are charged
under the Public Welfare Code of the Common-
wealth of Pennsylvania with the enforcement,
operation and execution of the provisions there-
of. The County Board of Assistance Executive
Director is particularly charged with the admin-
istration of public assistance and determination
of the eligibility of persons receiving assistance
in accordance with said law. The Public Wel-
fare Code of the Commonwealth of Pennsyl-
vania, a codification of public assistance laws

8a Complaint

adopted. since Tune 24, 1937, was enacted on
June 13, 1967, P. L. , 62 Purd. Stat. Secs.
401 et seq. The provisions of the Public Wel-
fare Code here at issue are attached hereto as
Exhibit “A”.

5. The Public Welfare Code, Sec. 432, 62 Purd.
Stat. Sec. 432, provides that public assistance shall
be granted to needy persons for whose assistance fed-
eral financial contributions are available, i.e., those
persons eligible for “old-age assistance’’, “aid to the
blind”, “aid to families with dependent children”,
“aid to the permamently and totally disabled”, and
to other needy persons not so eligible but who are
citizens of the United States. The latter category of
public assistance is called “General Assistance”’.

6. Plaintiff Leger was born in Alford, Scotland
on March 7, 1937.

7. On May 17, 1965 at the age of twenty-eight,
plaintiff came to the United States to undertake do-
mestic work under contract with a family in Haver-
town, Pennsylvania. Plaintiff has resided continu-
ously in Pennsylvania since 1965 and has been a tax-
paying resident of Pennsylvania for the past Four (4)
years.

8. Plaintiff’s father and mother are both citizens
and residents of Scotland.

9. Plaintiff Leger worked as a domestic in Haver-
town at Twenty-Five ($25.00) Dollars per week until
1967 during which year she left her employment to

obtain a higher paying job at Sixty ($60.00) Dollars

Complaint 9a

per week with Physicians Clinical Laboratory in
Philadelphia.

10. During this period plaintiff entered into a
common law marriage with one, Alex J. Leger, who
was employed at the time at The Toddle House at
wages of One Hundred ($100.00) Dollars per week,
but who was forced to give up such employment in
March 1969 due to a hiatial hernia and a serious
gastro-intestinal condition.

11. Plaintiff was forced to give up her employ-
ment in September 1969 because of severe chest pains
for which she was and is being treated at. St. Joseph’s
Hospital Clinic. Plaintiff had no history of this ail-
ment prior to September 1969.

12. Faced with the threat of eviction in Septem-
ber 1969 plaintiff and Mr. Leger were compelled to
leave their apartment and slept overnight for two (2)
nights at the Trailway Terminal in Philadelphia.

13. Soon thereafter, on or about October 3, 1969
plaintiff and Mr. Leger applied for public assistance
from the Girard District of the Philadelphia County
Board of Assistance.

14. Mr. Leger was granted assistance of One Hun-
dred and Twenty-One ($121.00) Dollars monthly
for himself, and plaintiff was denied any assistance
on the grounds that she was not a citizen. Thus
plaintiff and Mr. Leger must attempt to subsist on a
total income of One Hundred and Twenty-One
($121.00) Dollars per month, ninety (90%) percent
of the amount determined necessary by the Depart-
ment of Public Welfare of the Commonwealth of

10a Complaint

Pennsylvania, in 1957, to suscain the life of one (1)
person at a minimum standard of health and decency,

15. Plaintiff and Mr. Leger’s total current income
of One Hundred and Twenty-One ($121.00) Dollars
per month from public a assistance falls Sixty-Three
($63.00) Dollars per month below the amount, One
Hundred and Eighty-Four ($184.00) Dollars per
month, determined necessary by the Department of
Public Welfare, in 1957, to sustain a family of two
(2) at ninety (90%) percent of a minimum stand-
ard of health and decency. Such sum of One Hun-
dred and Eighty-Four ($184.00) Dollars monthly is
itself, according to the United States Department of
Labor, Bureau of Labor Statistics, only sixty (60%)
percent of what a family of two (2) requires for a
minimal standard of living in Philadelphia.

16. Plaintiff continues to suffer from severe chest
pains has had a weight loss of seventeen (17) pounds
in the past few months. She is continuing to lose
weight.

17. It is medically necessary for plaintiff to have
a nutritious diet and for Mr. Leger to have a special,
costly high protein diet for his gastro-intestinal con-
dition.

18. Plaintiff and Mr. Leger have not had suf-
ficient funds to purchase a minimal diet even after
selling their belongings in order to get money to pur-
chase food. They have not had « complete meal for
any day in the past week.

19. Plaintiff is overdue by at least a week’s rent
and will soon face eviction from the landlord.

Complaint lla

20. Plaintiff and Mr. Leger do not have access to
most of their clothing and personal belongings which
remains in a Trailways Bus Terminal locker. Piain-
tiff and Mr. Leger do not have the Fiftezn ($15.00)
Dollars to pay the storage charges to retrieve their
belongings.

21. Plaintiff is suffering and will suffer imme-
diate and irreparable injury because General Assist-
ance has been wrongfully denied. Monetary damages
are inadequate and accordingly, injunctive relief is
necessary.

22. The Public Welfare Code of the Common-
wealth of Pennsylvania Sec. 432(2), 62 Purd. Stat.
Sec. 432(2), requiring as a condition of eligibility
for general assistance that plaintiff be a citizen of
the United States, is contrary to the laws and con-
stitution of the United States in that:

(a) said requirement imposes upon the residence
of aliens lawfully within the United States, discrimi-
natory burdens beyond those contemplated by the
laws of the United States regulating immigration and
naturalization, in violation of the Supremacy Clause,
Article VI of the United States Constitution;

(b) said requirement denies to plaintiff and other
needy residents of Pennsylvania who are not citizens
of the United States the equal protection of the laws
in violation of the Fourteenth Amendment of the
United States Constitution;

(c) said requirement denies plaintiff and other
needy residents of Pennsylvania who are not citizens
of the United States due process of the law by arbi-
trarily and unreasonably withholding assistance from

12a Complaint

them in violation of the Fourteenth Amendment of
the United States Constitution; and

(d) said requirement denies plaintiff and other
needy residents of Pennsylvania who are not citizens
of the United States the rights of freedom of associa-
tion and of travel in violation of the First and Four-
teenth Amendments of the United States Constitution.

Wherefore, plaintiff respectfully pray that:

1. That a three-judge court be convened as re-
quired by Title 28, U.S.C. Secs. 2281 and 2284;

2. The Court declare the Public Welfare Code of
the Commonwealth of Pennsylvania, Sec. 432(2) 62
Purd. Stat. Sec. 432 (2), and any enforcement there-
of unconstitutional;

3. The Court preliminarily enjoin and, after full
hearing, permanently enjoin defendants from enforc-
ing the Public Welfare Code of the Commonwealth
of Pennsylvania, Sec. 432(2), Purd. Stat. Sec. 432
(2);

4. The Court order back payments to plaintiff in
the amount of assistance wrongfully withheld; and

5. The Court grant such further relief as shall
be necessary and proper.

Jonathan M. Stein

Barry S. Kohn

Doug". G. Dye

Harv, © . Schmidt

Attorneys for Plaintiffs
Community Legal Services,
Inc. 313 South Juniper
Street Philadelphia, Pennsyl-
Of Counsel: vania 19107
Jonathan A. Weiss, Esq.

Complaint 13a
Exhibit “A”

POOR PERSONS AND PUBLIC ASSISTANCE
62 §432

§426. Employment of credit rating agencies

As need may require each county board may
employ the services of commercial credit rating agen-
cies for the purpose of determining eligibility for gen-
eral assistance.

1967, June 13, P. L. , No. 21, art. 4, §426.
§427. Receipt and expenditure of contributions

Each county board may receive and spend con-
tributions from any source for purposes related to as-
sistance, or to the work of the department.

1967, June 13, P. L. , No. 21, art. 4, §427.

(e) Assistance other than medical assistance for the
aged and purchased Hospital and Post Hospital
Care

§431. Application.

Except as provided in section 446(1)* every per-
son applying for public assistance shall be required
to sign a statement setting forth his financial status
and such other facts as may be required by the de-
partment, in order to determine whether such person
is entitled to public assistance, and shall also be re-
quired to sign, as part of his written application, his
own bond to the Commonwealth without surety, con-
taining a warrant of attorney to confess judgment in

Section 446 (1) of this title.

a

l4a Complaint

the penal sum of five hundred dollars ($500), which
bond shall be conditioned on the truth and lack of
fraud and misrepresentation in any of the statements
made by such applicant in his written application.
Every such applicant shall make affidavit that the
facts set forth in such statement are true and correct.
Every person emnloyed in the administration of pub-
lic assistance shall have power to administer oaths for
the purpose of carrying into effect the provisions of
this section.

1967, June 13, P. L. , No. 21, art. 4, §431.
§432. Eligibility

Except as hereinafter otherwise provided, and
subiect to the rules, regulations, and standards estab-
lished by the department, both as to eligibility for
assistance and as to its nature and extent, needy per-
sons of the classes defined in clauses (1) and (2) of
this section shall be eligible for assistance:

(1) Persons for whose assistance Federal fi-
nancial! participation is available to the Common-
wealth as old-age assistance, aid to the blind, aid to
families with dependent children, aid to the perma-
nently and totally disabled, or as other assistance, and
which assistance is not precluded by other provisions
of law.

(2) Other persons who are citizens of the
United States, or who, during the period January 1,
1938 to December 31, 1939, filed their declaration
of intention to become citizens.

(3) Assistance other than Federal-State blind
pension shall not be granted (i) to or in behalf of any

—

Complaint 15a

person who disposed of his real or personal property,
of the value of five hundred dollars ($500), or more
without fair consideration, within two years imme-
diately preceding the date of application for assist-
ance; (ii) to an inmate of a public institution; or,
(iii) in behalf of an inmate of a public institution,
unless he is a patient in a medical institution who is
eligible for aid to the permanently and totally dis-
abled.

(4) Federal-State blind pension shall be
granted only to or in behalf of any person who (i)
is twenty-one years of age or older and meets the re-
quirement as to residence prescribed in clause (6) of
this section; (ii) has three-sixtieths or ten-two hun-
dredths, or less, normal vision; (iii) is not an inmate
of a public institution (except as a patient in a med-
ical institution) , a penal institution, or a hospital for
mental disease; .. .

Commonwealth of Pennsylvania
County of Philadelphia, ss:

I, Elsie Mary Jane Leger, being duly sworn accord-
ing to law, deposes and says that she is the plaintiff
in the foregoing pleadings and that the facts set forth
therein are true and correct to the best of her knowl-
edge, information and belief.

Elsie Mary Jane Leger

Sworn to and subscribed before me this
day of. , 1969.

Notary Public

16a Answer

III.
ANSWER
[Caption Omitted]

First Defense
The complaint fails to state a claim against defend-
ants upon which relief can be granted.
Second Defense
Defendants admit the allegations contained in para-
graphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15,
16, 17, 18, 19 and 20 and deny the allegations con-
tained in paragraphs 21 and 22 of the complaint.
Respectfully submitted,
Joseph P. Work
Deputy Attorney General
William C. Sennett
Attorney General

Certificate of Service
I hereby certify that a copy of the foregoing An-
swer has been furnished by mail to the following on
the 29th day of December, 1969.
Jonathan M. Stein, Esquire
Community Legal Services, Inc.
313 South Juniper Street
Philadelphia, Pennsylvania 19107
Barry S. Kohn, Esquire
Community Legal Services, Inc.
313 South Juniper Street
Philadelphia, Pennsylvania 19107

Joseph P. Work
Deputy Attorney General

Stipulation 17a

IV.

STIPULATION
[Caption Omitted ]

And now, this day of March, 1970, it is here-
by stipulated and agreed by and between counsel for
plaintiffs and defendants in the above titled action,
as follows:

1. That plaintiffs are:

(a) Elsie Mary Jane Leger, a resident alien,
presently residing at 716 North Broad Street,
Philadelphia, Pennsylvania;

(b) Beryl Jervis, a resident alien, presently
residing at 1800 Orthodox Street in Philadel-
phia, Pennsylvania; and

(c) All other residents of the Common-
wealth of Pennsylvania who are indigent and
otherwise eligible for General Assistance but
who are subject to denial of General Assistance
solely because they are not citizens of the United
States.

2. That the class of persons plaintiffs seek to
represent numbers approximately sixty-five (65) to
seventy (70) cases annually, according to the aver-
age rate of rejection of public assistance applications
on grounds of lack of United States citizenship over
the past five fiscal years. That such class is so nu-
merous as to make it impractical to join them all be-
fore this court.

18a Stipulation

3. That the named plaintiffs will fairly and ad-
equately represent the interests of the above described
class, that the claims of named plaintiffs are typical
of the claims of the class, and that there are questions
of law and fact common to said class.

4. That defendants are:

(a) William P. Sailer, sued individually and
as Executive Director of the Philadelphia Coun-
ty Board of Assistance; and

(b) Stanley A. Miller, sued individually and
as Secretary of the Department of Public Wel-
fare of the Commonwealth of Pennsylvania.

5. That the defendants are public officers charged
under the Pennsylvania Public Welfare Code, 62
Purd. Stat. Section 401, et seq, with the enforcement,
operation and execution of the public assistance pro-
gram.

6. That the Public Welfare Code Section 432, 62
Purd. Stat. Section 432, provides that public assist-
ance shall be granted to all needy persons for whose
assistance federal financial contributions are avail-
able, i.e. those eligible for ‘‘old-age assistance”
(OAA), “aid to the blind” (AB), “aid to families
with dependent children” (AFDC), and “‘aid to the
permanently and totally disabled” (APTD), and that
public assistance shall be granted to all other needy
persons not so eligible who are citizens of the United
States (General Assistance) .

7. That pursuant to Section 432 defendants pro-
vide public assistance, funded in part by the Com-

Stipulation 19a

monwealth of Pennsylvania, to needy resident aliens
eligible under the above listed federally-aided cate-
gories, but deny public assistance to needy resident
aliens not so eligible.

8. That plaintiff Leger was born in Alford, Scot-
land on March 7, 1937. Plaintiff’s father and mother
are both citizens and residents of Scotland.

9. That on May 18, 1965, at the age of twenty-
eight, plaintiff came to the United States to under-
take domestic work under contract with a family in
Havertown, Pennsylvania. Plaintiff has resided con-
tinuously in Pennsylvania since 1965 and has been
a taxpaying resident of Pennsylvania for the past four
(4) years.

10. That plaintiff Leger worked as a domestic
in Havertown until 1967, during which year she left
her employment to obtain a higher paying job at
Physicians Clinical Laboratory in Philadelphia.

11. That during this period plaintiff entered into
a common law marriage with one, Alex J. Leger, who
was employed at the time but who was forced to give
up such employment in March 1969, due to a hiatial
hernia and a serious gastro-intestinal condition.

12. That plaintiff was forced to give up her em-
ployment in September, 1969, because of severe chest
pains for which she was treated at St. Joseph’s Hos-
pital Clinic and for which she is now being treated
at Pennsylvania Hospital for this condition and also
a kidney infection. Plaintiff had no history of this
ailment prior to September, 1969.

< a

20a Stipulation

13. That plaintiff and her husband were faced
with the threat of eviction in September, 1969, and
were compelled to leave their apartment for nonpay-
ment of rent. They slept overnight for two (2)
nights at the Trailways Bus Terminal in Philadelphia.

14. That on or about October 3, 1969, plaintiff
and Mr. Leger applied for public assistance from the
Girard District of the Philadelphia County Board of
Assistance.

15. That Mr. Leger was granted assistance of
one hundred and twenty-one ($121.00) dollars
monthly for himself, but plaintiff was denied any
assistance on the grounds that she was not a citizen.

16. That plaintiff and Mr. Leger attempted to
subsist on a total income of one hundred and twenty-
one ($121.00) dollars per month, ninety (90%)
percent of the amount determined necessary by the
Department of Public Welfare of the Commonwealth
of Pennsylvania, in 1957, to sustain the life of one
(1) person at a minimum standard of health and
decency.

17. The plaintiff and Mr. Leger’s income of one
hundred and twenty-one ($121.00) dollars per month
from public assistance fell sixty-three ($63.00) dol-
lars per month below the amount, one hundred and
eighty-four ($184.00) dollars per month, determined
necessary by the Department of Public Welfare, in
1957, to sustain a family of two (2) at ninety (90%)
percent of a minimum standard of health and decency.
Such sum of one hundred and eighty-four ($184.00)
dollars monthly was itself, according to the United
States Department of Labor, Bureau of Labor Sta-

—

Stipulation 21a

tistics, only sixty (60%) percent of what a family
of two (2) requires for a minimal standard of living
in Philadelphia.

18. That from October 3, 1969, to December 9,
1969, plaintiff Leger and her husband had insuf-
ficient funds to purchase a minimally adequate diet,
to maintain rental payments, or to retrieve their cloth-
ing and personal belongings then in storage at the
Trailway Bus Terminal.

19. That on December 9, 1969; plaintiff Leger
commenced this action and was granted a Temporary
Restraining Order preventing the defendants from
continuing to deny her public assistance on grounds
of lack of United States citizenship. Plaintiff Leger
commenced receiving, and continues to receive, with
her husband a public assistance grant semi-monthly.

20. That plaintiff Bery! Jervis was born in
Panama on December 10, 1912, and is a citizen there-
of.

21. That on March 1, 1969, at the age of fifty-
five, plaintiff Jervis came to the United States to
undertake domestic work under contract in Phila-
delphia, Pennsylvania. Plaintiff has resided con-
tinuously in Pennsylvania since March 1, 1968, and
has been a taxpaying resident of Pennsylvania for
the past two (2) years.

22. That plaintiff Jervis worked as a domestic
in Philadelphia for approximately one year, then
obtained a higher paying job operating pressing ma-
chines at Kline’s Laundry, Frankford and Adams Ave-
nues in Philadelphia.

a

23. That in mid-February, 1970, plaintiff Jervis
was forced to give up her employment due to in-
fluenza. Plaintiff is currently under a doctor's care.

22a Stipulation

24. That plaintiff Jervis must seek less strenuous
employment and wishes to obtain such employment,
but is currently without even the funds minimally
needed to search for employment.

25. That plaintiff Jervis, on or about February
26, 1970, applied for public assistance at the North
District office of the Philadelphia County Board of
Assistance, and was denied public assistance solely
on the ground that she is not a citizen of the United
States.

26. That plaintiff Jervis is currently without suf-
ficient funds to purchase food and is subsisting solely
on the uncertain charity of friends and church. Plain-
tiff is also without funds to pay past due rent and
faces imminent constable’s action and eviction.

27. That on March 3, 1970, plaintiff Jervis was
added as a party plaintiff in this action, but her mo-
tion tor a Temporary Restraining Order to prevent
defendants from continuing to deny her assistance on
grounds of lack of United States citizenship was
denied without prejudice.

(s) Joseph P. Work
Deputy Attorney Generai

(s) Jonathan M. Stein
Douglas G. Dye
Harvey N. Schmidt
Attorneys for Plaintiffs
Dated: March , 1970

Supplemental Stipulation 23a

V.

SUPPLEMENTAL STIPULATION
[Caption Omitted]

And Now, this day of April, 1970, it is here- —
by stipulated and agreed by and between counsel for
plaintiffs and defendants in the above titled action,
as follows:

1. That the denial of General Assistance to aliens
otherwise eligible for such assistance causes undue
hardship to them by depriving them of the means to
secure the necessities of life, including food, clothing
and shelter.

2. That the citizenship bar to the receipt of Gen-
eral Assistance in Pennsylvania discourages continued
residence in Pennsylvania of indigent resident aliens
and causes such needy persons to remove to other
States which will meet their needs.

3. That the first clause of Paragraph 21 of the
original Stipulation is amended to read that “on
March 1, 1968” plaintiff Jervis came to the United
States.

Joseph P. Work
Deputy Attorney General
Attorney for Defendants

(s) Jonathan M. Stein
Douglas G. Dye
Harvey N. Schmidt
Attorneys for Plaintiffs
Dated: April ,1970

24a Motion

Vi.

MOTION
[Caption Omitted]

Pursuant to Title 28, U.S.C. Sec. 2284(3) and
Rule 65(b), Fed. R. Civil P., and based upon the
verified complaint herein, and the affidavit and certi-
fication of counsel attached hereto, plaintiffs move
the Court for a temporary restraining order restrain-
ing defendants from denying General Assistance to
plaintiff, and in support thereof state as follows:

1. Defendants denied General Assistance to plain-
tiff, Elsie Mary Jane Leger, on October 3, 1969.

2. Said denial was made because plaintiff, a Penn-
sylvania resident for four and a half (41%) years, is
not a citizen of the United States, as required under
the Public Welfare Code, Sec. 432, 62 Purd. Stat. Sec.
432, although she met all other requirements for
General Assistance.

3. Plaintiff was forced to give up her employment
in September, 1969 because of severe chest pains for
which she was and is being treated at St. Joseph’s
Hospital Clinic.

4. Plaintiff's husband, Alex Leger, was forced to
give up his employment in March, 1969 due to a
hiatial hernia and a serious gastro-intestinal condi-
tion.

5. Mr. Leger was granted assistance of One Hun-
dred and Twenty-One ($121.00) Dollars monthly

Motion 25a

for himself, and plaintiff was denied any assistance
on the grounds that she was not a citizen. Thus
plaintiff and Mr. Leger must attempt to subsist on
a total income of One Hundred and Twenty-One
($121.00) Dollars per month, ninety (90%) percent
of the amount determined necessary by the Depart-
ment of Public Welfare of the Commonwealth of
Pennsylvania, in 1957, to sustain the life of one (1)
person at a minimum standard of health and decency.

6. Absent the denial of assistance to plaintiff,
plaintiff and Mr. Leger would be entitled to receive
and would be receiving One Hundred and Eighty-
Four ($184.00) Dollars monthly.

7. Plaintiff continues to suffer from severe chest
pains and has had a weight loss of seventeen (17)
pounds in the past few months. She is continuing
to lose weight.

8. It is medically necessary for plaintiff to have
a nutritious diet and for Mr. Leger to have a special,
costly high protein diet for his gastro-intestinal con-
dition.

9. Plaintiff and Mr. Leger have not had sufficient
funds to purchase a minimal diet even after selling
their belongings in order to get money to purchase
food. They have not had a complete meal for any
day in the past week.

10. Plaintiff is overdue by at least a week’s rent
and will soon face eviction from the landlord.

11. Defendants’ regulations causing injury to
plaintiff Leger and members of the class are clearly
on their face violative of Equal Protection Clause of

26a Motion

the Fourteenth Amendment and Supremacy Clause
of Article VI of the United States Constitution.
Courts have enjoined violations of the Equal Protec-
tion Clause by States in their public assistance pro-
grams, e.g., Smith v. Reynolds, 277 F. Supp. 66 (E.D.
Pa., 1967) aff'd 394 U.S. 618 (1969) (Pennsylvania
residency requirement held unconstitutional) ; Ander-
son v. Schaefer, F. Supp. (Civil No. 10443,
N.D. Ga., April 5, 1968) (three-judge court); Wil-
liams v. Dandridge, 297 S. Supp. 450 (D. MD. 1968,
supplemental opinion, 1969) (three-judge court);
Smith v. King, 277 F. Supp. 31 (N.D. Ala. 1968),
aff’d on other grds, 392 U.S. (1969); and Dews v.
Henry, 297 F. Supp. 587 (1969) (three-judge court).

12. Courts have consistently recognized denial
or reduction of welfare benefits as causing immediate
and irreparable injury and have consistently ordered
temporary restraining orders in class actions brought
by welfare recipients. Smith v. Reynolds, C.A. No.
42419, Order of June 17, 1967, final opinion at 277
F. Supp. 66 (E.D. Pa. 1967) (three-judge court),
aff’d 394 U.S. 618 (1969); Williford v. Laupheimer,
C.A. No. 69-1803, Order of August 14, 1969 (Davis,
J.) (class TRO), final opinion at, F. Supp.
(E.D. Pa. Nov. 3, 1969); Cooper v. Laupheimer,
C.A. No. 69-2421 Order of November 5, 1969
(Wright, C.J.) (class TRO); Kelly v. Wyman, 294
F. Supp. 887 (S.D. N.Y., 1968); Ramos v. Health
and Social Bd., 276 F. Supp. 474 (E.D. Wisc., 1967);
Wheeler v. Montgomery, C.A. No. 48303 (N.D.
Calif., Dec. 6, 1967); Van Blaricum v. Dep’t of Pub-
lic Welfare, CCH Poverty Law Rep., para. 1610.58
(S.D. Ohio No. 68-78, March 8, 1968); Miller v.

Motion 27a

Zoeller, CCH Poverty Law Rep., para. 9385 (N.D.
Wisc., C.A. No. 69-C-2, Jan. 20, 1969); Ramos v.
Health and Social Services Bd., C.A. No. 67-CO329
(E.D. Wisc., Nov. 7, 1967); and James v. Goldberg,
C.A. No. 69-2448 (S.D. N.Y., June 13, 1969); Sims
y. Juras, CCH Poverty Law Rep., para. 9833 (Civ.
No. 69-238, D.C. Ore., April 30, 1969).

13. If this temporary restraining order be granted,
the injury, if any, to defendants herein, if final judg-
ment be in their favor, will be inconsiderable. This
Court has so recognized that irreparable injury result-
ing from withholding of public assistance outweighs
de minimis injury to the Commonwealth. Smith v.
Reynolds, C.A. No. 42419 Order of June 17, 1967;
final opinion at 277 F. Supp. 66 (E.D. Pa., 1967),
aff'd, 394 U.S. 618 (1969).

(s) Jonathan M. Stein
Barry S. Kohn
Attorneys for Plaintiff
Community Legal Services, Inc.
313 South Juniper Street
Philadelphia, Pennsylvania 19107

Commonwealth of Pennsylvania
County of Philadelphia, ss:
Certification

I, Jonathan M. Stein, Attorney for Plaintiffs, in
accordance v'th Rule 65(b), Fed. R. Civil P., here-
by certify:

1. That oral notice of the above Motion for a
Temporary Restraining Order was given December

28a Motion

8th, 1969 bv telephone to Joseph P. Work, Esq.,
Deputy Attorney General, Department of Public Wel-
fare, Harrisburg, Pennsylvania, Attorney for Defend-
ants.

2. That said notice is sufficient and all that should
be required because time and the immediate and
irreparable harm that would accrue to plaintiff from
delay pending further notice of the above Motion for
a Temporary Restraining Order will permit no more.

(s) Jonathan M. Stein
Attorney for Plaintiff
Community Legal Services, Inc.
313 south Juniper Street
Philadelphia, Pennsylvania

Commonwealth of Pennsylvania
County of Philadelphia, ss:

Elsie Mary Jane Leger, being duly sworn deposes
and says:

1. I make this affidavit in conjunction with the
suit filed on my behalf, and other persons similarly
situated, in the United States District Court against
the defendants, William P. Sailer, Executive Director
of the Philadelphia County Board of Assistance and
Stanley A. Miller, Secretary of The Department of
Public Welfare. I make it in support of the prayer
therein for a temporary restraining order, declaratory
judgment and for injunctive relief to prevent defend-
ants from continuing to deny me General Assistance.

2. My name is Elsie Mary Jane Leger, and I
reside at 716 North Broad Street in Philadelphia,
Pennsylvania with my husband, Alex J. Leger.

Motion 29a

3. I was born in Alford, Scotland on March 7,
1937.

4. On May 17, 1965 at the age of twenty-eight,
I came to the United States to undertake domestic
work under contract with a family in Havertown,
Pennsylvania. I have resided continuously in Penn-
sylvania since 1965.

5. My father and mother are both citizens and
residents of Scotland.

6. I worked as a domestic in Havertown for
Twenty-Five ($25.00) Dollars per week until 1967
during which year I left my employment to obtain
a higher paying job at Sixty ($60.09) Dollars per
week with Physicians Clinical Laboratory in Phila-
delphia.

7. In or about February, 1967, I entered into a
common law marriage with Alex J. Leger, who was
employed at the time at The Toddle House at wages
of One Hundred ($100.00) Dollars per week, but
who was forced to give up such employment in
March, 1969, due to a hiatial hernia and a serious
gastro-intestinal condition.

8. I was forced to give up my employment in
September, 1969 because of severe chest pains for
which I am being treated at St. Joseph’s Hospital
Clinic. I had no history of chest pains prior to Sep-
tember, 1969.

9. My husband and I had to leave our apartment
in September, 1969, because we were threatened with
eviction by the landlord. We slept two (2) nights
at the Trailways Terminal in Philadelphia.

a

30a Motion

10. My husband and I were sent to the Central-
ized Relocation Bureau at 918 North Broad Street
where temporary housing was arranged for us at a
hotel at 1607 W. Girard Avenue. However, we were
forced to leave because we fell three (3) weeks be-
hind in our rent.

11. On or about October 3, 1969, I applied for
General Assistance with my husband at the Girard
District of the Philadelphia County Board of Assist-
ance.

12. While waiting for my husband’s public as-
sistance check to arrive, we had to sleep three (3)
nights in the Trailways Terminal.

13. My husband was granted assistance of One
Hundred Twenty-One ($121.00) Dollars monthly
for himself, and I was denied any assistance on the
grounds that I was not a citizen.

14. I have continued to suffer from severe chest
pains and have lost seventeen (17) pounds in the
past few months. I am continuing to lose weight.

15. I need a nutritious diet, however, due to the
lack of sufficient funds, I have not had a complete
meal any day in the past week.

16. My husband and I have to sell our belongings
in order to obtain money to purchase food for a min-
imal diet.

17. We have had to go to The “Salvation Army
for food twice and were given milk, cereal and
crackers.

—

Motion 31a

18. My husband and I are behind in our rent by
two (2) weeks and again fear eviction by the land-
lord.

19. I do not have access to my clothing or per-
sonal belongings because I am not able to pay the
Fifteen ($15.00) Dollars storage charges.

Els:e Mary Jane Leger

Sworn to and subscribed before me this ——— day
of————_ , 1969.

Notary Public

32a Order Dated Dec. 9, 1969

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYL-
VANIA

Civil Action No. 69-2869

Elsie Mary Jane Leger, 716 North Broad Street
Philadelphia, Pennsylvania on behalf of herself and
all the others similarly situated,

Plaintiffs
v.

William P. Sailer, individually and as the Executive
Director of the Philadelphia County Board of Assist-
ance, 1400 Spring Garden Street Philadelphia, Penn-
sylvania, Stanley A. Miller, individually and as Sec-
retary of the Department of Public Welfare of the
Commonwealth of Pennsylvania Health and Welfare
Building, Harrisburg, Pennsylvania,
Defendants

VII.
ORDER

Whereas, in the above titled action it appears by
verified complaint, motion and affidavit that a tem-
porary restraining order, pursuant to Title 28, U.S.C.
Sec. 2284 (3) and Rule 65(b), Fed. R. Civ. P., should

—

Order Dated Dec. 9, 1969 33a

issue because immediate and irreparable injury, loss
and damage will result to plaintiff, Elsie Mary Jane
Leger, before written notice can be served and a full
hearing had thereon, in that defendants have denied
General Assistance to plaintiff and left her without
sufficient income to support and maintain herself.

Notice and a hearing before entering a temporary
restraining order should not be required because time
and the immediate jeopardy of plaintiff do not permit
such a hearing.

Now, Therefore, on motion of the plaintiff, it is
Ordered that defendants, each of them, their agents,
servants and employees, and all persons acting by,
through or under them or either of them or by or
through their order be, and they are hereby, restrained
from denying General Assistance to plaintiff, Elsie
Mary Jane Leger, solely because she is not a citizen
of the United States.

Issued at 12:30 o’clock p.m., this 9th day of De-
cember, 1969.

(s) Wood
J.

34a Proceedings of March 3, 1970

VIII.
TESTIMONY

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA

Civil Action No. 69-2869

Elsie Mary Jane Leger et al.,
Plaintiffs
v.

William P. Sailer et al.,
Defendants

Philadelphia, Pa., March 3, 1970

Before Hon. Harold K. Wood, J.

Present:

Jonathan M. Stein, Esq., and Douglas Dye, Esq.,
Attorneys for Plaintiffs.

Joseph B. Work, Esq., Deputy Attorney General,
Attorney for Defendants.

—_

Proceedings of March 3, 1970 35a

(2) MR. STEIN: Your Honor, the Leger case
involves the citizenship requirement in the Public Wel-
fare Code of Pennsylvania and the sole issue now be-
fore the Court is whether a three-judge court shall be
convened to hear this case on the merits.

THE COURT: That may be so, but you have
been telephoning repeatedly about a class action.

MR. STEIN: Yes, Your Honor. We also have a
class action motion and order with us today which we
will present to the Court.

THE COURT: How do you think that should be
disposed of?

MR. STEIN: Well, Your Honor, that class ac-
tion order can be disposed of today or Your Honor
could take that under advisement.

THE COURT: It can’t be disposed of today be-
cause you haven’t conformed with the rule governing
class actions.

MR. STEIN: The rule requires us to file our
motion within 90 days of the filing of the action.

THE COURT: That is right. And you are filing
it now, today?

MR. STEIN: That is right. We are within 90
days, Your Honor. This action was filed on Decem-
ber 8th, I believe.

(3) THE COURT: Well, I am not going to
certify this case to a three-judge court until the class
action is disposed of. I don’t know what your plead-
ings say in regard to a class action. All I know is
that you are asking for one,

36a Proceedings of March 3, 1970
MR. STEIN: Yes, Your Honor.

We have with us today our class action order
and motion with a memorandum of law following
that. We have submitted a brief with our motion for
a temporary restraining order, and we have a brief
with our request for the convening of a three-judge
court.

THE COURT: Well, I have granted you a re-
straining order. That question is moot, except that
I think I am going to dissolve it today.

MR. STEIN: Well, Your Honor, we have in
addition to this request for a convening of a three-
judge court a motion to amend our complaint to add
a second party plaintiff, a Mrs. Beryl Jervis, who was
denied general assistance last Friday as a result of
citizenship.

THE COURT: Well, do you want to amend
your caption?

MR. STEIN: Yes, we do, Your Honor.

THE COURT: Or add an additional plaintiff?

MR. STEIN: We will amend our caption by
adding Mrs. Jervis as an additional named plaintiff,
and also extend (4) the temporary restraining order
you granted to Mrs. Leger to both Mrs. Leger and
Mrs. Jervis.

We have here with us—

THE COURT: Let’s take one thing at a time.
Let’s get back to the class action.

Now, you are required under the rules of the
class action to show some proof at least of who the

—

Proceedings of March 3, 1970 37a

members of the class are, what right, so to speak, you
have to represent them, and several other things.
What do you have to say about that?

MR. STEIN: Well, Your Honor, the members
of the class I think are very plainly defined in our
complaint as being those applicants for general as-
sistance, and that is a category of public assistance
in Pennsylvania under the Public Welfare Code.

THE COURT: That isn’t definitive enough for
me.

MR. STEIN: Well, we have here, Your Honor,
the Commissioner of the Office of Family Services in
the courtroom today, and he can testify if that is
necessary to who this class is and the fact that there
is—

THE COURT: That burden is on you; it is not
his burden.

MR. STEIN: We are prepared then to call Mr.
Cohen to the stand, if Your Honor feels that that is
necessary (5) in terms of proving this class.

THE COURT: I don’t feel it is necessary; the
rules say it is necessary.

Have you read the rules?

MR. STEIN: Yes, we have read the rules, Your
Honor, and we have set out in our complaint, Your
Honor, the definition of our class and the necessary
allegations required by Rule 23 (a).

THE COURT: I don’t think you have. Go
ahead.

38a Proceedings of March 3, 1970

MR. STEIN: Well, our allegations in our com.
plaint set down the requirements—

THE COURT: Just a moment, Mr. Stein. You
said you have read the rule?

MR. STEIN: Yes, we have.

THE COURT: Doesn’t the rule say the com-
plaint shall contain under a separate heading styled
“Class Action Allegations’? Doesn’t it say that?

MR. STEIN: Your Honor, those rules went into
effect, did they not, in—
THE COURT: They are in effect right today.

MR. STEIN: They are, Your Honor, and we
can only explain that—

THE COURT: They have been published since
January 13.

(6) MR. STEIN: Right. Now, our complaint
was filed on December 8, and the complaint was pre-
pared at a time when those local rules were not in
effect.

THE COURT: Well, they are in effect now.

MR. STEIN: Yes, you are right, Your Honor,
and we would—

THE COURT: Now, if you wish to amend you
will have to do it in accordance with this rule.

MR. STEIN: Your Honor, we will be prepared
to amend.

THE COURT: That is the first hurdle we have,
and if you have read it—there is no use me reading

Proceedings of March 3, 1970 39a

it to you again—but it says: “Under separate allega-
tions the size and definition of the class, the basis
upon which the plaintiff claims to be representative
of the class; that the class is comprised of defendants,
that their names as parties are adequate representa-
tives of the class; the alleged questions of law and
fact claimed to be common to the class, in actions
claimed to be maintainable as class actions” and so
forth.

MR.STEIN: Yes, Your Honor. We shall amend
our complaint along those lines, but I just might
point out that your decision as to convening a three-
judge court is not dependent on the condition prece-
dent of establishing the class.

(7) THE COURT: There is where we disagree,
Mr. Stein, vehemently. If I certify this case, I don’t
intend to certify it with this tail on the kite, so to
speak, as to who the plaintiffs in the case are. Now,
it would be utterly ridiculous to send this case to a
three-judge court and when they get it down there
they don’t know who the parties are and whether it
is a class action or not.

Now, that is going to be determined first, since
you want to make it a class action, which you could
have done for months. You are just doing it today.
If you wanted to make it a class action, you have had
ample time to have that passed on long before now.
Now you are coming in here today and asking that
it be made a class action, which is your right and
duty to do if you think so, but before it is certified
that procedural step has to be determined and passed
upon, because I will not send it down there until it
has been.

40a Proceedings of March 3, 1970

MR. STEIN: Well, Your Honor, we are pre-
pared to amend our complaint by specifying those
details required by the Local Rules under Class Ac-
tion. I can only say that we did go by our former
practice in another three-judge matter, Williford vy.
Laupheimer, where the question of finding that it
was a proper class action was taken under advisement
for the three judges. This was Judge Davis who con-
vened the three-judge court, and the three-judge court
later found it was a (8) class action, but we are
prepared to do this now.

THE COURT: If that was done I am not aware
of it, and I certainly don’t question what you are
saying, but as far as I am concerned—and I am sur-
prised that the record went down there in that shape
—it certainly isn’t the obligation or duty of a three-
judge court to determine what should and what should
not be a class action. You are aware of that, I am
sure.

MR. STEIN: Well, yes, Your Honor, but the
three-judge court, of course, in deciding questions on
the merits, one of those questions would undoubtedly
be the matter of a class action.

THE COURT: Well, there is nothing in the Act
or anywhere else that says the three-judge court should
determine what is or what is not a class action. There
is only one thing there to decide, and that is whether
there is a constitutional question which raises a sub-
stantial federal question.

MR. STEIN: Exactly.

THE COURT: That is the only thing it is con-
vened for, except in Interstate Commerce matters.

Proceedings of March 3, 1970 4la

MR. STEIN: Well, Your Honor, we are pre-
pared at this moment to argue the question of whether
a three-judge court can be convened.

(9) THE COURT: Well, as long as you are
here I will hear it, but I will not pass upon it until I
have determined whether or not this is a proper class
action. If you wish to argue it, since you are here,
on the three-judge court, why, I will hear it.

MR. STEIN: Thank you, Your Honor.

THE COURT: Incidentally, you didn’t file any
brief, nor did the Commonwealth, in regard to this
three-judge court.

MR. STEIN: Well, I believe within two days
following our filing of the complaint we submitted a
brief.

THE COURT: You submitted a memorandum
of law in support of the motion for a three-judge
court.

MR. STEIN: That is right.

THE COURT: The Commonwealth hasn’t
filed anything.

Go ahead.

MR. STEIN: Well, Your Honor, the standards
set out for convening a three-judge court as defined
in Section 2281 of the Judicial Code, and under the
leading Supreme Court case, Idlewild Liquor Corpo-
ration, really set down two requirements: One, that
a statute that is the subject of a suit which is seeking
to be enjoined in terms of its unconstitutionality, and

42a Proceedings of March 3, 1970

two, that the question raised in the complaint is a sub-
(10) stantial constitutional question.

On the first point, Your Honor, I think it is
quite clear that we are challenging a statutory provi-
sion of the Public Welfare Code, Section 423, which
requires as a condition precedent to someone receiving
general assistance that that person be a citizen of
the United States.

On the second point, the Supreme Court has in
looking to this standard of the substantiality of the
constitutional question, has said that only where the
question is plainly insubstantial or clearly without
merit or foreclosed by former cases of the Supreme
Court should a judge not convene this three-judge
court.

Now, in our case I think the Supreme Court
case law is clearly in support of plaintiff’s contention.
On the first ground that we raise, the equal protection
claim, that this citizenship requirement is an invid-
ious discrimination against resident aliens lawfully in
Pennsylvania, we have first the line of cases beginning
with Yick Wo v. Hopkins, which holds that the
Fourteenth Amendment is applicable to aliens. No
person shall be denied equal protection of the law,
and Yick Wo and cases since then in the Supreme
Court have held that that is applicable to aliens, the
equal protection clause, the due process clause.

That line of cases is supplemented by the Shapiro
(11) v. Thompson case decided by the Supreme
Court one year ago, which struck down residency re-
quirements in public assistance. The Supreme Court
there affirmed actually an Eastern District opinion,

Proceedings of March 3, 1970 43a

smith v. Reynolds, which struck down the Pennsyl-
yania residency requirement for public assistance, and
this latter case is quite on point, because Justice Bren-
nan says there very clearly that a state cannot really
fence out indigents from the state, and in going down
the various possible state interests, he found really no
compelling interest to justify this kind of barrier at
the borders of a state.

That, Your Honor, is really our main conten-
tion. That is an equal protection claim that plain-
tiffs present.

The second ground is that the supremacy clause,
Article 6 of the Constitution, prevents states from
placing discriminatory burdens upon aliens. The reg-
ulation of aliens is of course a matter for the federal
government to regulate, and there is a substantial law
passed by Congress to regulate aliens’ admission into
the country and their conditions of entry here.

The Supreme Court has on a number of occa-
sions struck down state statutes which put burdens
upon resident aliens lawfully in the United States.
Truax v. Raich and Takahashi v. Fish & Game Com-
mission, to cite two examples.

What the citizenship requirement of public (12)
assistance is is tantamount to really Pennsylvania say-
ing who can in effect be here and live here with a
minimal amount of subsistence and a minimal level
of subsistence, and they are in a sense asserting the
right of who can abide in Pennsylvania. The result of
this is that people lawfully admitted under Act of
Congress to Pennsylvania are in effect denied the

44a Proceedings of March 3, 1970

right to live here and are in fact forced to live in
other states that are more hospitable to that individual.

That is really the reasoning set down in the
Truax cases and the other cases holding that state
attempts to regulate aliens in the state must fall under
the preemption doctrine, under the supremacy clause.

The Pennsylvania Alien Registration law was
one of these laws struck down in Hines v. Davido-
witz, and this is set down in out brief.

Finally, we just wish to point out that three-
judge courts have been convened on matters like this.
Probably the best example in this District is the resi-
dency case itself, Smith v. Reynolds, which was af-
firmed in Shapiro v. Thompson.

For these reasons we feel that a three-judge
court should be convened, and this argument is set
down in more detail in our brief.

I wish, though, to bring to the Court’s (13) at-
tention today a request for a restraining order for a
Mrs. Beryl Jervis, an alien denied public assistance,
general asistance, on Friday. Our order reads that the
original order for Mrs. Leger should be enlarged to
include Mrs. Jervis, who is a 57-year-old woman, un-
employed, was very seriously ill and has really abso-
lutely no resources and no income to depend on. She
is destitute in the literal meaning of that word, and
we just asked the Court today for an order to restrain
the Department from denying assistance to her until
the issue can be heard on its merits in terms of the
constitutionality of this requirement.

Our order also includes our motion to amend
our caption to include Mrs. Jervis along with Mrs.

—_—

Proceedings of March 3, 1970 45a

Leger as two named plaintiffs in the suit. Our mo-
tion is followed by an affidavit from Mrs. Jervis set-
ting down the facts in her case and certification from
counsel as to the notice we provided the Department
of Public Welfare on this matter.

THE COURT: Well, I will of course hear from
the Commonwealth, but in regard to the restraining
order, I am a little disturbed about it because whether
the record shows it or not, I recall distinctly that
when I issued the restraining order in the case of
Elsie Mary Jane Leger I did so because there was
little or no opposition to it and because, more impor-
tantly, it was de minimis. Now, this case through no
(14) fault of the Court, obviously, has been here
since December 9, 1969—at least that is the date of
the first order which I signed; so it is at least Decem-
ber 9th.

Let me see when the complaint was filed.

MR. STEIN: I think, Your Honor, December
9th was probably the filing date, too.

THE COURT: As I say, I issued that restrain-
ing order because I thought it was de minimis and I
thought that this matter was of such apparent im-
portance it would be disposed of within a reasonable
length of time, and I don’t call this a reasonable
length of time. We are into March now and we are
here to dispose of the matter and you come in here
today with an amendment, and not only an amend-
ment as to the other woman, but also as to the class
action.

Now, this matter appears to me to be dragging
out unnecessarily, and unless the Commonwealth

——

46a Proceedings of March 3, 1970

agrees—and it is up to them to make the decision—
I am going to dissolve the restraining order.

MR. STEIN: Your Honor, if I might just speak
to the de minimis point that you raised?

THE COURT: To say nothing of entering an-
other one.

MR. STEIN: May I speak to the de minimis
injury point that you did raise? The amount of
money (15) involved I believe for Mrs. Jervis does
not amount to any more than $180 a month. I believe
for Mrs. Leger it may have involved perhaps $130 a
month. We are now prepared to move as expeditious-
ly as possible.

THE COURT: You are not prepared. You could
have been prepared to move expeditiously. We could
have disposed of this today. You are not prepared
to proceed expeditiously when you come in here on
March 3rd and tell me that you want to amend your
complaint and that you want to raise the question of
whether or not you have a class action. That isn’t
being expeditious.

We could have heard this on quite a few occa-
sions. My law clerk called you or my secretary called
you and told you that we were prepared to proceed
to dispose of this, but it was just put off and put off.

MR. STEIN: Your Honor, that is precisely the
issue. By disposing of it, our point earlier in our
conversations with your clerk—and initially, in fact,
we raised this in chambers with you—that this issue
being in the case, it could not be disposed of by a
single judge because it is a three-judge court matter.

Proceedings of March 3, 1970 47a

Now, we were prepared sometime earlier to argue
this case initially on the three-judge court question,
and I think—

THE COURT: You weren’t, though. Read my
last (16) order. That followed another request for a
continuance. I told you then—and the order so states
_that it wouid be listed sometime after the 16th.
There was no other time to list it until then.

MR. STEIN: Your Honor, the only request we
made for a continuance went to Adens, the second
case on the list for today.

THE COURT: This matter could have been
argued a week after you filed it. That is why I con-
sidered it de minimis. I don’t call from December
9th to March 1st de minimis. You could come back
with that same argument six months from now and
say, “It is de minimis because of the small amount
involved in money”. It is a legal principle, it isn’t
the money.

MR. STEIN: Well, Your Honor, on the hearing
you set for January 16th we were prepared to have
our argument on the three-judge question. That is
just a matter of weeks after filing the action, and we
greeted with some surprise your order continuing this
matter, the Leger matter, to another date, because our
letter to you only made a request for a continuance
as to Adens.

THE COURT: Well, I won’t argue with you on
that. I know in my own mind very definitely—and
I am sure the record will disclose it—that you haven’t
been prepared (17) to proceed until today, and now

48a Proceedings of March 3, 1970

that you are prepared to proceed, as I say again, you
are in here with amendments to be ruled upon, par-
ticularly a class action to be ruled upon, and certainly
the delay, if there has been any, has not been the
responsibility, or the blame can’t be placed on the
Court, because I have been prepared to hear this
from the day you filed it, and I told you that.

MR. STEIN: Your Honor, our only explanation
is that we did rely upon prior practice and we can
only express our regrets for the lapse.

THE COURT: I am not being critical. I am
not saying you haven’t done the best you could. We
are back to this question of de minimis. You know
a restraining order is a very, very extreme remedy. It
is only available in very few cases and situations out
of hundreds. I allowed it because I considered then
it was de minimis in view of the short time that would
elapse before the matter was adjudicated.

MR. STEIN: Yes, Your Honor, and I believe
that the harm is still de minimis precisely because of
the small amount of money involved, weighed on the
other side from the real irreparable harm which would
come to someone who must go without food, who as
our affidavit and motion show may soon get evicted
by a constable.

THE COURT: Well, in addition, if I am not
(18) mistaken—you tell me if I am—in addition to
your request for a three-judge court you also asked
for a restraining order and a preliminary injection,
didn’t you?

MR. STEIN: Yes, Your Honor.

Proceedings of March 3, 1970 49a

THE COURT: Then why didn’t we have a hear-
ing on the preliminary injection?

MR. STEIN: Because, Your Honor, only a
three-judge court in our opinion can hear the ques-
tion.

THE COURT: Then why do you ask me for
one if only a three-judge court can decide that?

MR. STEIN: I think we did ask you initially
for the convening of the three-judge court.

THE COURT: You asked more than that. You
asked for a restraining order and a preliminary in-
junction.

MR. STEIN: Precisely, Your Honor, because the
statute, 2284, the three-judge court statute, empowers
the single judge to grant whatever temporary relief is
required up until the convening and the hearing on
the merits on the question.

THE COURT: And I did grant temporary re-
lief, didn’t 1?

MR. STEIN: Yes, you did grant temporary re-
lief.

THE COURT: Now there is the question how
long (19) is temporary?

MR. STEIN: Exactly, Your Honor, and the
statute, 2284, sets no 10-day or other time limit,
other than the limit that temporary relief can be
granted up to the hearing on the merits by the three-
judge court on the issues.

50a Proceedings of March 3, 1970

THE COURT: I have no evidence before me,
Mr. Stein; I have no evidence before me on which |
could base either a continued restraining order or a
preliminary injunction pending the decision of the
three-judge court.

Now, you know and I know that assuming |
certify this, before a three-judge court is convened
and hears argument and files an opinion it is likely
that a year may go by, quite likely, because we are
flooded with three-judge courts and we are flooded
with all kinds of other work.

MR. STEIN: Yes, Your Honor.

In terms of the evidence as to harm to Mrs.
Jervis, I think her affidavit taken under oath of course
sets out the facts and gives you the factual basis for
deciding whether there is irreparable harm in her
case.

In terms of the time of the three-judge court
reaching a decision, again we can only point to our
prior experience here where a three-judge court has
heard matters and decided the cases completely, public
assistance cases, in this District in a matter of one,
two or three months.

(20) THE COURT: Well, maybe so in public
assistance cases. I wouldn’t quarrel with you because
I don’t know, but I have sat on a great many three-
judge courts and that hasn’t been my experience.

MR. STEIN: Right. I just have referred to the
Williford and Caldwell cases, but, Your Honor, I
just might make a further point that we are not seek-
ing at this point class re'ief, temporary class relief.

et

Proceedings of March 3, 1970 5la

We are only seeking it for two named individuals at
this point, and in the Smith v. Reynolds case, that
was the Pennsylvania residency case, the Court in
ordering a preliminary injunction against the state
welfare statute found de minimis injury to the state
where the total number of people involved there was
undoubtedly much greater than the number of resi-
dent aliens to be affected here.

In fact, we have really two now before the
Court, and when the Supreme Court decided that case
in Shapiro v. Thompson, they said very clearly that
the saving of welfare costs is not a justifiable state
interest to base an invidious classification upon.

So I think in terms of cost to the state—and per-
haps the Attorney General’s office and the Attorney
General’s representative here can address himself to
that—I don’t think the cost to the state really is great,
particularly (21) compared to the harm which these
two individuals, Mrs. Leger and Mrs. Jervis, would
suffer without any funds.

THE COURT: Well, how long have they been
getting funds?

MR. STEIN: Well, Mrs. Leger of course has just
been getting assistance since your order of last De-

cember, so she has received assistance for approxi-
mately two or three months.

Mrs. Jervis hasn’t received anything from public
assistance. She became unemployed a number of
weeks ago and just exhausted all of her resources, in
fact. She wants to get back to work. Right now she
is just too sick. She doesn’t even have carfare to look

;
on, |

ot mere

52a Proceedings of March 3, 1970

for a job. So conceivably this lady could be employed
and get back into the employment market if she had
enough money to maintain her health and to allow
her to look for work. So I don’t think that this is
particularly the type of person who would be on as-
sistance for any great length of time.

THE COURT: Are those statements supported
by the record?

MR. STEIN: Yes, in the affidavit, Your Honor,
we set that out.

THE COURT: Well, let me hear from Mr.
Work. First address yourself to this restraining order,

(22) MR. WORK: I beg your pardon, Your
Honor? I didn’t hear you.

THE COURT: First of all address yourself to
the status of this restraining order.

MR. WORK: Well, Your Honor, first of all let
me make it quite clear that with respect to the story
which counsel for the plaintiff tells, my heart is as
big as anybody’s. I appreciate that many cases which
plaintiff’s counsel brings before this Court and other
Courts, there is hardship involved. Unfortunately,
Your Honor, the Commonwealth appears any more to
be viewed as a bastion of unlimited funds. Any time
that any hardship is involved the Commonwealth is
called upon to respond through the method or device
of a temporary restraining order which then usually
goes on into a motion for a continuation of the pre-
liminary injunction until we get to a final hearing.

Maybe it is fine to say that in one case we are
talking about an individual and we are talking about

ee

Proceedings of March 3, 1970 53a

$184. However, over the course of the last six
months, Your Honor, we have been talking about
thousands of people and we have been talking about
millions of dollars.

Therefore, on the part of the Commonwealth,
quite frankly, Your Honor, as Your Honor is well
aware, the granting of a temporary restraining order
has the effect of (23) a mandatory injunction and the
Courts have consistently held that they should not be
granted unless it appears that the question is free from
doubt.

Frankly, Your Honor, I have read the affidavit,
| appreciate that the facts set forth in the affidavit
may or may not constitute undue hardship.

THE COURT: I want to get a meeting of the
minds with you on one thing. I don’t think the law
is that the case should be free from doubt. I think
the terminology is that there is a likelihood they may
succeed at the final hearing.

MR. WORK: I subscribe to Your Honor’s state-
ment. I put it in the wrong context, Your Honor.

THE COURT: That is all right.

MR. WORK: On the continuation of the tempo-
rary restraining order which is already in effect, Your
Honor, I have grave doubts about that as well, be-
cause as Your Honor has already pointed out, we
have been treating this case from its inception, at
least as far as I was concerned, as being a case in
which the plaintiffs had made reference to class ac-
tion in one paragraph of their complaint, we had
been treating it from its inception as a case involving

54a Proceedings of March 3, 1970

Mrs. Leger in which a decision would eventually be
reached with respect to the validity of the Common-
wealth’s position under the statute.

(24) THE COURT: So have I, Mr. Work, until
last week.

MR. WORK: We are now faced with a mo-
tion for such a class action without any proof whatso-
ever that such a class exists outside of the existence
of one more plaintiff. We are faced with a motion
for a new restraining order with respect to the added
plaintiff. There is nothing in my mind which pre-
vents plaintiff from coming back two months from
now and saying, “Let’s grant the TRO for the en-
tire class if it exists.”

This, Your Honor, quite frankly on behalf of
the Commonwealth, I can’t subscribe to. The decision
is Your Honor’s, but the Commonwealth cannot agree
to either course of action.

THE COURT: Well, you used the term “man-
datory injunction”. That is about as near as I could
describe it. What your opponent in fact is asking me
to do, particularly in the case of the second plaintiff
whose name escapes me, but in that case what he is
practically telling me to do is to order you to put her
on the assistance rolls and again te pay assistance to
her, notwithstanding at this moment that is contrary
to the law.

MR. WORK: That is correct, Your Honor. As
Your Honor recalls, I pointed this out to Your Honor
at the (25) time that the TRO was granted in the
Leger case but advised Your Honor at that time that

Proceedings of March 3, 1970 55a

because of the unique circumstances that I was not
going to vehemently oppose the Court’s granting of
the temporary restraining order.

THE COURT: I recall that, and that is why
I granted it, because I thought this issue would be
resolved very soon and I didn’t want that woman to
suffer unnecessarily, but there is a limit to what I
can do. I don’t feel that I have the right to tell the
Commonwealth to do something contrary to existing
law, which is about what I am doing.

Well, then, in summary on the restraining order,
do I understand that you oppose a continuation of
the restraining order as to Mrs. Leger?

MR. WORK: Yes, Your Honor, I do.

THE COURT: I will rule right now that I will
allow this other plaintiff to be added. I am not pass-
ing on the class action, obviously, but as an individual
she can be added as a plaintiff. In that regard the
pleadings are amended.

This poses quite a problem. What was the status
of Mrs. Leger when this complaint was filed?

MR. WORK: As I understand, Your Honor,
your court was advised at that time that there was an
eviction (26) notice to be served the next morning,
as I recall, and the fact that she had for some period
of time been without funds, although at that time, as
Your Honor recalls, her husband I believe was receiv-
ing public assistance.

THE COURT: But she was not on the relief
rolls.

a

56a Proceedings of March 3, 1970

MR. WORK: She was not on the relief rolls at
that time, Your Honor.

THE COURT: So that as of that time she was
in precisely the same status as the added plaintiff is
now.

MR. WORK: That is correct, Your Honor.

THE COURT: Well, I am inclined to think |
was wrong then. I don’t want to compound the fel-
ony.

Let me hear from Mr. Stein on this restraining
order, and then I want to hear you on the class action.

Do you have anything you want to add, Mr.
Stein? I am really disturbed about this.

MR. STEIN: Well, Your Honor, I would like
to address myself to the point inat you stated earlier,
that you felt that in making this decision it would be
contrary to law.

I think we have established in our argument and
brief that in effect there is a very strong likelihood of
our succeeding on the merits in this case. I think the
argument is in terms of the equal protection clause
(27) invalidating discrimination against aliens and
the supremacy clause preventing states from putting
burdens on aliens, and this is the Supreme Court case
law running to the entire Twentieth Century, back to
Yick Wo v. Hopkins over a hundred years ago. That
law is very clearly established and I think would con-
template a court here in the Eastern District striking
down the citizenship requirement in general assist-

ance.

—

Proceedings of March 3, 1970 57a

Now, one must remember that—

THE COURT: You think you are going to be
successful, but I don’t know whether you are or not.

MR. STEIN: Your Honor, I think Judge Joseph
Lord was put in a similar position when the residency
case was filed. The Pennsylvania residency case was
filed in 1967 in this District and he did grant a tem-
porary restraining order on behalf of named plaintiffs
before, of course, the case was heard on its merits,
and in light of the very specific statutory provision
which said—

THE COURT: Judge Lord was in a little better
position than I am. I recall the case. Judge Lord had
a lot of facts before him and he could, perhaps, look
to the future and conclude, and not only that—that
raises another question—but if I am not mistaken,
Judge Lord decided that case himself. Now here you
are asking for something different. I don’t know why
you didn’t want it then and (28) apparently you don’t
want it now, but this matter could have been disposed
of by me. You don’t have to have a three-judge court
to determine this question.

MR. STEIN: To determine the question of a
temporary restraining order, you are right, Your
Honor, a three-judge court is not necessary.

THE COURT: I can determine that the Act is
unconstitutional, too.

MR. STEIN: But I believe that the three-judge
court Statute, 281, prevents you from enjoining it on
the basis of its unconstitutionality.

58a Proceedings of March 3, 1970

THE COURT: I don’t agree with you on that.
Almost weekly it seems to me an individual judge
on this court can declare an Act unconstitutional.

MR. STEIN: But declaring might be different
from enjoining. Enjoining is the express language.

THE COURT: He can enjoin, he can enter a
permanent injunction, he can declare the Act uncon-
stitutional. There is nothing mandatory about sub-
mitting an issue of constitutionality to a three-judge
court. It is optional.

MR. STEIN: Your Honor, the very clear lan-
guage of 2281 is that an interlocutry or permanent in-
junction restraining the enforcement operation or exe-
cution of any state statute by restraining the action
of any officer of such (29) state in the execution or
enforcement of such statute shall not be granted by
any district court or judge upon the ground of the un-
constitutionality of such statute unless the application
therefor is heard and determined by a district court
of three judges under Section 2284.

THE COURT: That may be so; I don’t question
that, I don’t question that at all. What I am saying
is that our Court repeatedly declares Acts unconstitu-
tional, a single judge, repeatedly.

MR. STEIN: Well, Your Honor, this is particu-
larly—

THE COURT: As a matter of fact, didn’t Judge
Lord do exactly that?

MR. STEIN: No, Your Honor. In the residency
case Judge Lord as a single judge granted temporary

Proceedings of March 3, 1970 59a

relief, really the exact same temporary relief we are
seeking here, and then had applied to the Chief Judge
of the Third Circuit for the convening of a three-judge
court, and it was the three-judge court which granted
a preliminary injunction in that case, the Pennsylvania
residency case, affirmed by the U. S. Supreme Court
two years later.

Now, Your Honor may be correct, though, in
saying that perhaps you can hear our request for a
preliminary injunction and the hearing itself may be
presided by a single (30) judge, but the actual de-
cision on the merits enjoining the statewide statute
must be a decision of the three-judge court, and we
are prepared, Your Honor, to present evidence as
soon as Your Honor wishes to schedule the hearing,
either a hearing for—

THE COURT: All right, we will get to that, but
I will look back on it and I am sure you have a better
recollection of it than I do, but it seems to me that
Judge Lord himself stated that the Act requiring that
citizens or persons had to be a resident of this state
for a certain length of time before they could receive
assistance was unconstitutional, and that was Judge
Lord’s own opinion, if I am not mistaken.

MR. STEIN: Yes, he did write the opinion of
the three-judge court, but he was joined by at least
one other judge in that majority opinion. He also may
well have in granting the temporary restraining order
found that threshold question that there was a good
chance that the plaintiffs would succeed, at least they
had a meritorious claim, and I might direct myself to
that at this moment.

4
—— srt SCs”

—

60a Proceedings of March 3, 1970

Federal courts throughout this country have
granted, and particularly in this Eastern District, have
granted temporary restraining orders for public assist-
ance plaintiffs pending the determination of the case
on the merits.

(31) THE COURT: I am aware of that, but
there are a number of cases which aren’t quite as
strong in convening a three-judge court as the case
you are citing. I also know from personal practical
experience that our Third Circuit Court of Appeals
looks very much askance at our judges, my colleagues,
certifying cases down there willy-nilly, on the bare
statement of the plaintiff’s attorney that a substantial
federal question is involved. I know they do because
they told me more than once.

MR. STEIN: Right. And often in terms of, for
example, our experience with Judge Davis, who con-
vened a three-judge court in the Caldwell matter and
the Williford case, a hearing was held like this with
briefs submitted on the three-judge question, and in
those cases Judge Davis did seek the convening of a
three-judge court.

THE COURT: Well, sure, we have three-judge
courts all the time. I am involved in two. We must
have ten of them here right this moment.

MR. STEIN: Right, but these were cases—

THE COURT: But each case is different. Now,
why Judge Davis ordered it might have some bearing
on this case or it might not, I don’t know.

MR. STEIN: Well, the issues raised there were
equal protection issues very similar to the one before
this (32) Court.

—

Proceedings of March 3, 1970 61a

THE COURT: Equal protection, you always put
that in. Don’t stress it too much. You could say that
in practically any case you bring in here.

MR. STEIN: We have in particular in mind
the residency case, Your Honor, as the standard here.
That is really our main source of law in this area.

If I might just direct myself very briefly to the
class action question you had raised e2zlier, we still
feel that our allegations in our complaint meet the
requirements of Rule 23, the Federal Rules of Civil
Procedure, and as Your Honor did point out, the local
rules changed after we filed our complaint and I
don’t think there was any kind of retroactive provi-
sion in those local rules which said that complaints
filed before the rules would conform.

THE COURT: Mr. Stein, we won’t waste much
time on that. That rule was adopted sometime prior
to January 13. I just don’t know the date, but at
least it was published on January 13, and that rule of
our court is effective today insofar as | am concerned,
and if you want to make this a class action you will
have to comply with the strict provisions of that rule
and I will expect an answer from the Commonwealth,
and if I can determine it on the basis of what you
have filed, 1 will. If I can’t you will have to come in
and substantiate (33) your allegations by testimony.

MR. STEIN: Your Honor, that is perfectly ac-
ceptable to us.

I think the last question really is the question
of the temporary restraining order for Mrs. Jervis.

THE COURT: That is what is disturbing me. I
want to look at the record in Judge Lord’s case, but

62a Proceedings of March 3, 1970

as I understand it, you are telling me that Judge
Lord issued a restraining order and/or a preliminary
injunction?

MR. STEIN: Well, I believe he issued a re-

straining order. The preliminary injunction came
later.

THE COURT: Did he issue a preliminary in-
junction, or did the three-judge court issue it?

MR. STEIN: The three-judge court issued the
preliminary injunction.

THE COURT: And all Judge Lord did was issue
a restraining order and allowed it to continue until the
case was disposed of by the three-judge court?

MR. STEIN: Exactly.

THE COURT: I remember reading Judge Lord’s
opinion very carefully, and the opinion that I am re-
ferring to must be a different opinion than the one
you are referring to, because that was his own opin-
ion, as I recall it.

MR. STEIN: Yes, you are right, it was his
own.

(34) THE COURT: It wasn’t the opinion of a
three-judge court. He said that the Act was uncon-
stitutional, fixing a definite time within which a per-
son had to be a resident of this state before they could
obtain relief. I could be wrong, but my recollection
is that that was his own personal opinion.

MR. STEIN: Well, yes, Your Honor, but per-
haps, irrespective of that, as I say, we are just
seeking temporary relief today on behalf of Mrs. Jer-

Proceedings of March 3, 1970 63a

vis, and if Your Honor feels that a hearing is neces-
sary on the question of granting temporary relief, we
would be prepared as soon as a hearing can be
scheduled to submit all the testimony’.

THE COURT: I don’t know what a hearing
would do, because there is no disagreement on any
facts. Mr. Work doesn’t attack your affidavit. We
all seem to agree on the facts, that she is an alien,
she is not getting relief and she needs relief. What
else could you prove factually?

MR. STEIN: Right. I think I am in agreement
with you there, Your Honor.

The other question is whether we have shown in
our complaint and in our brief, the earlier brief for
the temporary restraining order which we submitted
initially when we filed our complaint, whether on the
face of that there is a likelihood that we will succeed
on the merits (35) ultimately.

THE COURT: That is one thing. You know
mayhe better than I do that there are three or four
criteria. One is that there is a likelihood that you
may succeed eventually. Another one is whether the
person is suffering irreparable harm, and there are
one or two others, but those are the most important.

MR. STEIN: Right.

THE COURT: What is disturbing me is that
what I am doing in effect, as Mr. Work says, it is
practically a mandatory injunction and the result of
it is that I am directing the Commonwealth of Penn-
sylvania to put a person on the relief rolls, pay them
relief, when as the law stands as of now that is con-
trary to the law, the existing law.

7

64a Proceedings of March 3, 1970

MR. STEIN: Right, Your Honor, but as one
must point out, a temporary restraining order does
not decide the issue on its merits. It can lapse at a
later point, it cannot be used as precedent that this
is an unconstitutional statute. It can be read very,
very narrowly, that just at this point irreparable
harm was shown and there was a colorable basis both
upon argument and the pleadings that plaintiffs might
succeed when the case is heard further on its merits.

THE COURT: Allright. We will get over those
two hurdles, perhaps, but supposing you kept coming
in here (36) every day for the next six months—and
this isn’t beyond belief the way these papers are filed,
some of them——you could come in here almost every
day and add another plaintiff. You want to add a
whole class. Supposing you came in here tomorrow
with Mrs. Jones and asked for a restraining order
and the next day with Mrs. Smith and asked for a re-
straining order?

MR. STEIN: I don’t think that the class is that
large, but I would—

THE COURT: No, I am talking about the in-
dividual. You have added one this morning, and this
may be illogical, or maybe I am dreaming or some-
thing, but you could come in tomorrow and ask for
another alien, you could come in the next day and
ask for another one, and if it applies to Mrs. Leger
and the other lady, why wouldn’t it apply to them?

MR. STEIN: Well, Your Honor, that was pre-
cisely Judge Hannum’s concern in the Lennox v.
Schwab case, the confession of judgment case which
is now before a three-judge court, and although I

es

-

Proceedings of March 3, 1970 65a

think that case is different just in terms of the class
being that much larger and many more people being
affected by confession of judgments than the aliens,
and I think they number quite a few who would be
eligible for public assistance, there Judge Hannum
established the procedure, and we have submitted in
our papers as Exhibit 1 to our motion (37) to amend
the caption his order which establishes that upon
certification of counsel that a particular individual is
a proper member of the class and falls within that
action, that that named individual without having
formal intervention papers or another motion to amend
can be certified to the Court and filed with the clerk’s
office and have that individual fall within the orig-
inal order.

We are as anxious as Your Honor is to hear the
case on the merits, get to a final decision, and we
sincerely believe that this case can be heard on the
merits in a very short time.

THE COURT: By a three-judge court?

MR. STEIN: That, of course, as Your Honor
knows, is dependent upon the timing schedules of
two other judges.

THE COURT: I know very well from my ex-
perience here for more years than I like to think
about that you are not going to get a three-judge
court overnight, even though I certify it, with the
work that they have to do down in the Third Circuit
and the calendars that we have now, particularly on
the individual calendar systems. I would think you
would be lucky if you had it heard in three months.

cart meme

66a Proceedings of March 3, 1970

MR. STEIN: Your Honor, in that case, then,
Your Honor may decide that you wish to hear the
testimony and hold the hearing yourself, and then we
can submit briefs or (38) schedule oral argument for
the three-judge court.

THE COURT: What testimony would you think
I should hear in order to determine whether it should
be certified?

MR. STEIN: Your Honor, we really would call
perhaps just two or three witnesses. I think one would
be a spokesman for the Department to perhaps ex-
plain what state interest is involved in having a citi-
zenship requirement and perhaps describing to the
Court the kinds of people affected by this require-
ment, and then perhaps just another witness who
might testify that there are just po other resources
available for an alien other than public assistance.

THE COURT: Now you are talking about the
certification.

MR. STEIN: Well, I am talking now about an
evidentiary hearing which Your Honor as a single
judge could hold pending the final decision on the
merits by the three-judge court. That is perhaps one
way of expediting the entire case.

We would of course use as much discovery as
we can to further expedite the matter, but in terms
of the length of the temporary restraining order, |
think that is part of the judge’s concern, and I don't
think that the restraining order would have to go in

to any long duration. I can assure you that we are
prepared—

“ anew ome

Proceedings of March 3,» 1970 67a

(39) THE COURT: Now, another thing. I
want some sort of a record here so we can dispose of
this thing. If these people are entitled to relief they
should have had it before now. Iif they aren’t, this
thing ought to be terminated. Biut supposing you
came in here a week from now, we Will say; suppos-
ing I determine that there is a class action here and
you brought it properly, you have amended it, and you
come within the rule and Section 25, but in any event
you have complied with all of that and I determine
that it is a proper class action, Would you come in
then and ask for a mandatory injunction or restrain-
ing order compelling the Commonwealth to pay all
the members of that class?

MR. STEIN: No, we would not seek class re-
lief.

THE COURT: They are all in the same cate-
gory. Why would they be any different than the two
you have here now?

MR. STEIN: Well, Your Honor, in fact we did
make an initial request for class relief based upon
existing precedent of class—

THE COURT: It is in the body of your com-
plaint?

MR. STEIN: Right. And that in fact Judge
Davis just a few months ago did grant a class tempo-
rary restraining order. He held 4 hearing as a single
judge in a three-judge matter, granted a temporary
restraining order—this is in (40) Williford v. Laup-

heimer—pending the three-judge court hearing on the
merits.

—

68a Proceedings of March 3, 1970

I don’t really think that it is particularly crucial
to seek a class temporary relief restraining order in
the Leger case, because I don’t think that our class
is really all that large. I don’t think there are hun-
dreds and hundreds of recipients across the state, but
we cannot foreclose the possibility that there will be
perhaps a couple of individuals who may find them-
selves out of work suddenly or deserted by a hus-
band—

THE COURT: That is just the point. That is
what disturbs me. That is just what I said a few
minutes ago. If every time you find somebody else
who doesn’t have a job and you come in and ask me
for a restraining order, I can’t treat one any differ-
ently than the other.

In effect what you are asking me to do is to be
prepared any time you come in here and ask for relief
for Mrs. Smith and Mrs. Jones or the entire class,
that I am faced with the fact as to whether or not I
should rule that they are entitled to immediate relief.
I can’t say no when I have already done it for Mrs.
Leger.

MR. STEIN: Well, Judge Hannum, as I said,
established the procedure of having counsel certify to
the Court as to the facts of the particular named plain-
tiff. That (41) forecloses the necessity of having a
motion to intervene or a motion to amend or a hear-
ing.

THE COURT: That is very acceptable, very
reasonable.

Proceedings of March 3, 1970 69a

MR. STEIN: Right, but I think we might be
able to just expedite this whole matter so that we are
not faced with the situation of having—

THE COURT: You could expedite it very quick-
ly if I would say, “I will grant a restraining order to
every person in Pennsylvania that is in the same cate-
gory as Mrs. Leger,” but I can’t bring myself to do
that. That is what Mr. Work is pointing out. He
said that this is not Fort Knox, there has to be a limit
some place as to what the state can do.

MR. STEIN: Right, but as we have noted ear-
lier, I believe, we are just seeking relief which we
consider the U. S. Constitution requires, and we are
not seeking the Legislature to appropriate more

money, necessarily.

THE COURT: Of course, that isn’t sensible.
If you are asking them to increase their relief rolls
by any number from 1 to 5,000, 10,000, 20,000, that
increases the expense to the state. You can’t avoid

that.

MR. STEIN: Yes, Your Honor, right, but I can
only point out again to the language in Justice Bren-
nan’s (42) opinion Shapiro v. Thompson. He says
very clearly that the saving of welfare costs—

THE COURT: Oh, ultimately, of course. Ullti-
mately it isn’t a question of expense, but it is a ques-
tion right now as to whether the single judge on a
restraining order should say to the Commonwealth
of Pennsylvania, “Increase your relief rolls by what-

ever number are in this class.”

70a Proceedings of March 3, 1970

I don’t know how many it is, but let’s assume
there are 5,000; whether I should do that in view of
the fact that the law as I sit here says otherwise.

MR. STEIN: Well, Your Honor, as I said, we
just have one individual now in addition to Mrs.
Leger, Mrs. Jervis.

THE COURT: I know. We have two now.
MR.STEIN: We have two, right?

THE COURT: There is no use in your repeat-
ing it because we are not getting very far, but you
have two now. My problem is that maybe in a week
you will have 2,000, I don’t know.

MR. STEIN: I can assure you that that is a
hypothetical which just will not arise here in Penn-
sylvania.

THE COURT: Do you have anything you would
like to say, Mr. Work? I would like to hear you
briefly on this class action buisness. Do you have
anything more to say about (43) restraining order?

MR. WORK: No, Your Honor, I have nothing
further on the restraining order. I would be repeat-
ing myself.

THE COURT: All right. I will hold it under
advisement. My decision will be based largely on
what develops in the future regarding the class action.
As I say, the class action has to be determined before
I consider whether or not I will certify this case. I
haven’t decided that by any means, and I haven’t
decided that I won’t, but I am not going to decide
either way until this question of the class action is

LP I

———

Proceedings of March 3, 1970 7la

determined. You gentlemen better get together and
work on that and let me know whether you want to
have me decide it on the record or whether you want
to present testimony. In the meantime I will hold
these two restraining orders, the one now in effect,
and the one requested, under advisement.

Now is there anything further in the Leger case?
MR. STEIN: No, Your Honor.

THE COURT: Are we all clear now on future
procedure?

MR. STEIN: Yes, Your Honor. We will sub-
mit an amendment to our complaint.

THE COURT: All right. You discuss with Mr.
Work the question of how you want the class action
disposed of, whether on the record or by oral testi-
mony. If you want (43-A) to present testimony, why,
I will have to hear it and then make a decision.

If there is nothing further now in the Leger case
and there is no misunderstanding, why, we will take
a recess for 15 minutes and then we will hear the
Adens case.

ase sis ena

eA ON ln 8 +

72a Appearances

[Caption Omitted ]
Philadelphia, Pa., April 6, 1970

Before:
Hon. Arlin M. Adams, Circuit Judge.
Hon. Harold K. Wood, District Judge.
Hon. C. William Kraft, Jr., District Judge.

Appearances:

Jonathan M. Stein, Esq., and Douglas G. Dye, Esq.,
Attorneys for plaintiffs.

Joseph P. Work, Esq., Deputy Attorney General,
Attorney for defendants.

(3) JUDGE ADAMS: These are the cases of
Elsie Mary Jane Leger and Beryl Jervis versus Wil-
liam P. Sailer, et al.

Are counsel ready on both sides?
MR. STEIN: Yes, Your Honor.
MR. WORK: Yes, Your Honor.

MR. STEIN: May it please the Court, | am
Jonathan Stein, counsel for plaintiffs in this matter.
Before the Court are motions for Declaratory Judg-
ment and Preliminary and Final Injunction.

I might add that we have submitted a draft order
pursuant to Rule 65 (a) (2) to consolidate the applica-
tion for preliminary injunction and the trial on the

Colloquy 73a

merits. Counsel for the Commonwealth has agreed to
that and we have submitted the draft orders to the
Court.

JUDGE ADAMS: Is that correct, Mr. Work?
MR. WORK: That is correct, Your Honor.

MR. STEIN: Before the Court today is a class
of claimants for general assistance in Penns,lvania
who meet all of the eligibility requirements for gen-
eral assistance except for citizenship, and the citizen-
ship requirement is a statutory one passed in 1939 by
the Legislature. It was a product of war hysteria and
it remains with us today as a statutory requirement
of the (4) Public Welfare Code.

Our legal arguments are set out in our brief in
some detail.

JUDGE KRAFT: What in the record supports
your statement that it was enacted because of war
hysteria?

MR. STEIN: We shall prove that through one
of the witnesses whom we shall be calling today; our
first witness.

Our legal arguments are set out at length in our
brief, and if I might just briefly summarize them at
this moment: There are three separate and independ-
ent claims on which plaintiffs seek relief. The first
rests with the fact that this general assistance citizen-
ship requirement poses an unreasonable burden upon
the right of aliens to interstate travel, to interstate
movement. This right to travel is one basic to our
Federal Union, as the case of U. S. v. Guest—

74a Colloquy

JUDGE KRAFT: Don’t you think that argu.
ment is a little far fetched, Counsel? How does it
affect possibly the right to travel qua right? If it
affects anything, does it not affect possibly the in-
clination or disinclination of persons to exercise that
right?

MR. STEIN: Well, Your Honor, where there
is a penalty or a chilling effect upon one’s exercise
of a right, in this case the right to travel, the Shapiro
(5) v. Thompson case of the U. S. Supreme Court
this past term has said that that itself is an abridge-
ment of that right to travel. We shall show through
one of our witnesses that in fact there are aliens who
travel interstate, say, from New Jersey or New York
coming to Philadelphia—

JUDGE KRAFT: Might it not have a warming
effect on aliens in the state to exercise their right by
going elsewhere, where there is no such provision in
the statute?

MR. STEIN: Well, the penalty and chilling ef-
fect is the analysis which the Supreme Court in Sha-
piro gave.

THE COURT: I know, but counsel in the courts
have seized upon this chilling effect expression al-
most like motherhood in my boyhood days, as if it
were something new, strange and startling as a doc-
trine in the law. I have some grave doubts whether
it is a chilling effect on the right to travel or whether
it is on careful analysis a little something different.

MR. STEIN: Well, Your Honor, the Supreme
Court did pose it on those terms. They also posed it
on the deterrence to travel.

Statement of Counsel 75a

JUDGE KRAFT: Yes, I know, but because the
Supreme Court did so doesn’t make it the word of
God. (6) There were earlier decisions by Justices
of the Supreme Court of equal ability when Justices
of the Supreme Court in later eras disregarded despite
the fact that it was an utterance of the Supreme Court.

MR. STEIN: Well, Your Honor, our point is
very simply that the effect of the requirement, and in
fact its intent resting with the distrust of foreigners,
a dislike for foreigners similar to the residency re-
quirement, that that purpose, that effect, is contrary
to the constitutional right of travel, that being our
first argument, and is separable from the other two.

The second argument rests with this require-
ment being a denial of equal protection to aliens, and
one must first begin here by stating that a special
scrutiny is required, particularly in this case, because
of the suspect criterion of alienage which the Supreme
Court in Takahashi and other cases has established
requires Courts to give particular scrutiny and impose
a particularly high burden on states to justify such
requirements.

In addition, you have, as some Courts have
pointed out, a class that is disenfranchised, a concrete
and insular minority, to use Justice Stone’s language
in the Carlene Products case, and that also requires
this Court to look particularly at the justification for
this requirement. That this is an invidious discrimina-
tion, (7) this class of aliens, the authority for that
rests agair with Shapiro v. Thompson, which estab-
lished that states not only must show a rational re-
lationship to the requirement to justify it, but a com-
pelling state interest.

76a Colloquy

JUDGE KRAFT: But wasn’t Takahashi some-
what different? That didn’t apply to all aliens, it
applied only to aliens, if I remember the case, who
were ineligible for United States citizenship, which
immediately, under the law as it then existed, if my
recollection serves me correctly, restricted it to cer-
tain of the oriental people, including the Japanese,
but was inapplicable to the other classes of aliens,
Isn’t that true?

MR. STEIN: Well, it is true that the class of
aliens was somewhat narrower, but at least the prin-
ciples established in Takahashi I think carry over into
this case as they have carried over into other cases
decided since Takahashi, that is, that when aliens do
come into this country they are admitted to this coun-
try lawfully and after that fact they are here to enter
and abide and live here on a basis of equality with
other people, and that that equality extends to privi-
leges and rights extended to citizens.

JUDGE KRAFT: Then why shouldn’t they have
the right to vote, if you carry that position to its
extreme?

(8) MR. STEIN: There are some very few ex-
ceptions, the right to vote being one, which have an
historical and constitutional history which just doesn’t
come through with a welfare requirement such as this,
or a requirement for public employment. Voting is
one of those few exceptions which don’t carry over.

JUDGE KRAFT: Would you put the right to
hold public office in the same category?

MR. STEIN: That may be. The limitations,
Your Honor, which have been set out go to some job

ee

Colloquy 77a

classifications where citizenship has been a require-
ment, and some of them may still today be valid, but
it seems clear, particularly with the Takahashi opin-
ion, that some of that old case law is very much sus-
pect today, that is, the right of states to set up citi-
zenship requirements for a variety of occupations.
Public office may be one which still has validity to-
day, but in terms of the compelling state interest test,
which the Shapiro v. Thompson establishes, I think
the only state interest involved here is the one of really
at best saving welfare costs of the state.

There is a small saving of funds obviously from
not providing assistance to aliens, and the Shapiro v.
Thompson case holds very cleariy that the saving of
welfare (9) costs by itself cannot be the basis for
an invidious discrimination. It can’t be a valid inde-
pendent basis for that discrimination.

JUDGE KRAFT: What would you think if a
state of war happened to exist between the nation
whose national the alien was and the United States?
Would you think that the state would have no right Y
to refrain from making payments? Would you think
the state would have to make the payments or that
the Federal Government could enact some provision
to prevent transmission of the funds or to have them
seized during the duration of the war by an alien
enemy property custodian?

MR. STEIN: That power does lie, Your Honor,
true, with the Federal Government. I mean, that
brings us really to our third point, our preemption
argument.

The Federal Government is really the sole regu-
lator in this area and the Federal Government could

——

78a Colloquy

set those standards, but I would like to make it very
clear that we are dealing with a totally state program.
General assistance has no Federal funds in it and it
is a total state requirement. Very true there is a sub-
stantial scheme of regulation of aliens in the Immigra-
tion and Naturalization Law, Title 8 of the United
States Code in (10) this area, and the Courts have

consistently held that states cannot not only interfere

with the Federal law or refrain, rather, from entering

into the area of regulating entrance of aliens or the
conditions after entry, and we set this out at length
| in our brief, and I think this is our third claim, that
pre-eminent Federal law in this area refrains Penn-
sylvania from regulating in this area.

I might point out just at this moment that the
Hines v. Davidowitz case, one of the leading author-
ities, dealt with the Pennsylvania Alien Registration
Act. That was struck down in 1941. That Act was
passed within five days of the general assistance citi-
zenship requirernent that is before the Court today,
and the basis for striking that down was precisely this
preemption ground. The first witness we shall be
putting on the stand today will be speaking to the ad-
ministration of this requirement and the State’s ra-
tionale for having this requirement.

JUDGE ADAMS: Before you begin with the
witnesses, do you want to disp2se of the pleading and
also the stipulation? Do I understand that you have
stipulated certain facts?

MR. STEIN: Yes. We have entered into a stip-
ulation which goes largely to the facts of Mrs. (11)
Leger and Mrs. Jervis as the two named plaintiffs.

;
:
;

-

Colloquy 79a

JUDGE ADAMS: Do we have that?
MR. STEIN: Yes, you do.

JUDGE ADAMS: I was wondering if there is
any objection to that.

Can this stipulation that we have be part of the
record?

MR. WORK: Your Honor, I may be a little
premature here, but I think it is just the time I should
call the Court’s attention to the fact that I was under
the impression that the principal reason for the stipu-
lation of fact was to avoid the calling of witnesses.

JUDGE WOOD: That was my understanding.
| was just about to ask why couldn’t the facts that you
want to present to us this morning have been the sub-
ject of a stipulation? What is so unusual about them?

MR. STEIN: Your Honor, there are factual-
legal issues, which include irreparable harm which is
alleged in the Commonwealth’s Answer to our Com-
plaint; there is an aspect of right to travel, and this
penalty or deterrent aspect of that, and the facts going
to that coming from case records of the Nationality
Service Center were not available at that time and it
was impossible (12) to stipulate to that.

THE COURT: I don’t know why they weren't.
The reason I asked you to prepare a stipulation was
so we could avoid the necessity of listening to wit-
nesses. Personally, I think witnesses are going to be
completely unnecessary. It is purely a legal question.
There are no facts in dispute that I can imagine.

rir

ema

80a Colloquy

MR. STEIN: Your Honor, our only concern is
that because there are constitutional issues here, that
there is a danger of—

JUDGE WOOD: You are just going to take
more of our time.

MR. STEIN: There is a danger of deciding con-
stitutional issues in the abstract, and we would like
to make every effort to at least create sufficient back-
ground for just what this requirement has been, what
its rationale was, and—

JUDGE WOOD: What do you mean by its ra-
tionale? It is a statute and it is there, isn’t it? We
can read it.

MR.STEIN: Right, but what was the intent of
the statute?

JUDGE WOOD: The intent of the Statute?

MR. STEIN: Yes. I mean, what did the (13)

Legislature in 1939 have in mind? What were the
circumstances of its passage?

JUDGE WOOD: That sounds amazing to me.
I-don’t know about my colleagues, but I don’t know
how anybody can tell what the Legislature had in
their mind in 1939.

MR. STEIN: Well, I can assure you it won’t be
very substantial testimony.

JUDGE ADAMS: How much time do you think
you will need?

MR. STEIN: Our witnesses wi!l probably not
take more than an hour, and we just have two wit-

nesses.

Colloquy

JUDGE WOOD: An hou

MR. STEIN: It could be sin tie an toe
the Court deems—

JUDGE KRAFT: Before ai aie Oi thy ‘
mony, Counsel, if 1 may interrv Be a.
ulation, there is an allegation, ° E°" a. nen
Leger, that she is someone’s co! gerne, Seo

. mon ife.
possible relevance has whether ~ law wife. What
: : she is a common law
wife or whether she is unmatty oo erwi
ried to the determination of th”. -—
se issues?

MR. STEIN: It is not pa,

icularly important.
(14) JUDGE KRAFT: 7 pele
in the stipulation? 1en why is it inserted

MR. STEIN: Only becat
Mrs. Leger did apply for assi” when both Mr. and

found eligible, Mrs. Leger wa,

JUDGE KRAFT: Well, . ..
basis of the refusal of her, wh’ stipulated that the
ther she is unmarried

or otherwise, was because she

difference does it make whetH’@S 2" alien, so what

..° he is a common law
husband hether he got it
MSDENG OF WHEEIET Ne BO ind she did not, if the

basis of refusal was because f ;
that the issue? e was an alien? Isn’t

MR. STEIN: Well, it o1 '
light on the rationality of th’ 80€S t© casting some
it is not uncommon for a hus Teqirement, because
and just to have one spouse ind and wife to apply
has happened repeatedly in t found eligible. That

JUDGE KRAFT: It see P*S*
fore stipulated because it is S © Me that you there-

scene rather than because it decorative part of the
germane to the issue.

Sia

ance, Mr. Leger was

a

82a Colloquy

MR. STEIN: Well, our only claim is that it does
show in part that this is a largely arbitrary and irra-
tional requirement.

JUDGE KRAFT: The Commonwealth concedes
(15) that the sole basis of refusal was because she
was an alien. That demonstrates it more clearly than
anything else, but the Commonwealth in effect says
that every person who is a citizen of Pennsylvania
who meets the other requirements gets it; every per-
son who meets all the requirements, except that of
citizenship doesn’t get it.

MR. STEIN: Yes, but the Commonweaith has
not agreed that this is an irrational requirement with
no compelling State interest, and I think this is a
particular fact, with many other facts, which shows
the statute’s irrationality and lack of State interest
to really justify this requirement, but I do grant you
that in terms of—

JUDGE KRAFT: Has it ever occurred to you in
making such a stipulation that you may cause some
inquiry to be made by the Immigration Department
as to whether this is a meretricious living together or
whether it is in fact a common law marriage under
the Pennsylvania law, and if they find that it is a
meretricious relationship that she may be susceptible
of removal from the country?

MR. STEIN: We have made inquiry to the ex-
tent that Mrs. Leger was lawfully admitted to this
(16) country and is lawfully residing here.

JUDGE KRAFT: That is not what I said. I
don’t think you followed me.

Colloquy 83a

MR. STEIN: Well, we were aware of this com-
mon law marriage as being an element going to legal-
ity of residing here, and we found after an inquiry
that Mrs. Leger is lawfully here and is lawfully re-
siding here.

JUDGE KRAFT: There is no dispute that she is
lawfully here. My inquiry was has it not occurred to
you that you may be prejudicing possibly this woman
by injecting the common law marriage issue into it?
A lot of people call it a common law marriage merely
because they live together period. That isn’t a com-
mon law marriage as I comprehend it in Pennsyl-
vania. If this matter should become one which is the
subject of investigation by the Immigration Depart-
ment and they find she is living in 4 meretricious
relationship and that it is a common law marriage,
the very fact that this spectre is injected into it in
what I regard as an extraneous and irrelevant issue
may ultimately subject her, if they find immorality in
the situation, to deportment.

MR. STEIN: Well, Your Honor, there is that
conjectural possibility, but at least we are confident
(17) that that won’t affect her current status in the
country.

JUDGE KRAFT: I don’t think you have given
it much thought, have you?

MR. STEIN: We have given thought to the
legality of her staying here.

JUDGE KRAFT: Oh, you have given thought to
the legality of one thing, whether she is legally in,
and that is not disputed at all, Go ahead.

84a Colloquy

JUDGE ADAMS: Now, you have two wit-
nesses.

Mr. Work, do you have anything at all?

MR. WORK: No, Your Honor, we have no
witnesses.

JUDGE ADAMS: Can you make every effort
to keep it as short as possible?

MR. STEIN: Yes, we shall, Your Honor.

JUDGE ADAMS: Because I think it is conceded
—and I think Judge Wood has properly pointed out
a minute or so ago—that this is pretty much going to
be decided on the record that we now have plus the
statutes and the previous cases.

MR. STEIN: Right. We shall try to make it as
brief as possible.

MR. WORK: Your Honor, at this time may |
be entered on the record as voicing an objection to
the (18) introduction of testimony because of the
fact that the issue is a narrow legal issue which is
very clear, and that is whether or not the statute of
Pennsylvania violates either the Constitution or the
Federal Supremacy Clause.

The Commonwealth has agreed that it does deny
to aliens general assistance. With respect to an in-
quiry into an intent behind the statute, the law is well
settled and clear that such an inquiry may not be
made. The statutory intent is set forth in the pream-
ble to the statute and the Courts have long said that
we cannot inquire behind that to determine what the
legislative intent was.

Deborah Davis—Direct 85a

JUDGE ADAMS: Your objection of course will
be noted and we will watch the testimony with that
objection in mind.

MR. WORK: Thank you, Your Honor.

JUDGE ADAMS: Do we all agree that this is
the stipulation that you have been talking about?

MR. STEIN: Yes, sir.
MR. WORK: Yes, sir.

JUDGE ADAMS: The reporter will take it and
have it available with the notes.

JUDGE KRAFT: Do I understand that we are
(19) reserving decision on the motion to exclude, or
the objection? Very well.

MR. STEIN: I would like to call our first wit-
ness, Miss Deborah Davis.

DEBORAH DAVIS, having been duly sworn, was
examined and testified as follows:

Direct Examination

BY MR. STEIN:

Q. Miss Davis, can you please state your name
and address.

A. Deborah Davis; address, Camp Hill, Pennsyl-
vania.

Q. What is your position with the Department of
Public Welfare?

A. I am Director of the Bureau of Assistance,
Policies and Standards in the Department of Public
Welfare.

a

86a Deborah Davis—Direct

Q. And the responsibilities of that position are,
very briefly?

A. Developing the rules and regulations by which
assistance is granted.

Q. How long have you beer working with the
Welfare Department in the State?

A. I have been working with the Welfare De-
partment for 35 years.

(20)Q. Have you been and are you familiar with
the workings of the citizenship requirement in the
Public Welfare Code?

A. Ye.

Q. Can you briefly describe the characteristics of
this class of aliens who have been denied general
assistance as a result of this 1939 requirement?

A. Well, generally they are persons who are not
old enough for old age assistance, who are not mar-
ried with families of children, who are not blind or
disabled. This makes them generally persons between
the ages of 50 and 60, or very young, unmarried, or
just recently married persons.

Q. Now, you did mention characteristics, at least
requirements like blindness and disability. The rele-
vance of those three or four characteristics is what?

A. There are five categories of assistance in Penn-
sylvania. Four of the categories have no citizenship
requirements. Those four categories have Federal fi-
nancial participation in them while the general as-
sistance is a State-funded program.

JUDGE ADAMS: Is it correct to say that
if there is Federal assistance the citizenship con-
cept is not present?

Deborah Davis—Direct 87a

(21) THE WITNESS: That is what I was
trying to say, yes.

BY MR. STEIN:

OQ. Now, as to the particular population of aliens,
can you speak at all to perhaps their length of stay
in the country or characteristics going to their need
for assistance?

A. We haven’t made any recent characteristic
study. Originally what happened is they came to this
country in the early 1900’s to work in the coal mines
and steel mills. In 1924 there was a change in the
immigration laws which greatiy reduced admissions to
the country. Again in 1959 there began to be a move-
ment from countries in which war was being threat-
ened, and as a result of this legislation across the
country was being passed to put controls on the ser-
vices available to noncitizens.

Q. Can you tell us about what time this was done,
this reaction to this—

JUDGE ADAMS: That was answered,
1939.

BY MR. STEIN:
Q. Did you say 1939?
A. Yes.

Q. Pardon me.

Miss Davis, have you brought with you as (22)
directed any available legal or administrative records,
reports or materials going to the rationale or purpose
of this 1939 citizenship requirement?

A. Well, we have here a study that was made
some years ago in the course of business of the Agen-
cy. It is reported that as war threatened—

« OREO

88a Deborah Davis—Direct

Q. Before you read from that, was this record
made in the Department, a record made in the normal
course of business of your agency, and was it the nor-
mal course of business of your agency to make such
studies or records as the one you have before you?

A. Yes.

MR. STEIN: I would like at this moment,
then, to have marked as Plaintiff’s Exhibit 1 and
entered into evidence this report entitled “Gen-
eral Assistance and the Alien in Pennsylvania.”

(Report entitled “General Assistance and
the Alien in Pennsylvania” was marked Exhibit
P-1.)

JUDGE ADAMS: Any cbjection?

MR. WORK: Yes, Your Honor. I am go-
ing to object on two grounds. First of all, this
purports to be prepared by a gentleman by the
name of Fielding. The source of the information
contained in the said report is not stated. There-
fore, I think for that reason (23) it is inad-
missible.

I also object to its admission because I fail
to see the relevance with respect to the issues
before the Court as to the constitutionality of the
present statutory section, irrespective of why it
was passed, Your Honor.

JUDGE ADAMS: Would you try to find
out the answer to the first point Mr. Work
raised?

MR. STEIN: Yes.

Devorah Davis—Direct 89a

BY MR. STEIN:

Q. Miss Davis, was the author of that somehow
either commissioned by the Department or was that
a study which was used by the Department and vali-
dated by the Department at that time as a critique or
analysis of this citizenship requirement?

A. Yes. It was a study that was used by the
Department. The person who made it is Field Secre-
tary for American Service Institute, and it was done
at the request of the Department, and the source of
information for the sample studies was the Allegheny
County Board of Assistance.

Q. And this does contain information going to
the administration of this citizenship requirement and
the—

JUDGE KRAFT: Counsel, may I suggest
that you refrain from leading the witness. You
are doing the testifying and she is saying “Yes”,
so you are getting (24) in on the record in pre-
cisely the language that you are very carefully
choosing. Let the witness describe it, please.

MR. STEIN: Yes, Your Honor.

BY MR. STEIN:

Q. Can you briefly describe this study, this re-
port, that you have before you?

A. I am afraid I don’t know what you mean
about describing it.

Q. Well, in terms of the light it casts upon the
citizenship requirement before the Court today, the
purpose of the requirement, the administration of it.

A. Well, the report describes the basis for the
Public Assistance Law, 1939 Amendment, and these
are the terms under which it is described:

90a

Deborah Davis—Direct

“As war threatened the United States in
1939 many anti-alien bills were introduced in
Congress and in State Legislatures. In our own
Legislature Representative John E. VanAllsburg
of Erie County introduced in 1939 an omnibus
bill making a number of changes in the Public
Assistance Laws. Some parts of this bill were
def

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0309%3A1. Public record. Not legal advice.