WHEELER v. MONTGOMERY
Legal provision: Due Process
Argument of Peter E. Sitkin
Chief Justice Warren E. Burger: Number 14, Wheeler and others against Montgomery and others.
Mr. Peter E. Sitkin: May it please the Court.
My name is Peter E. Sitkin.
Chief Justice Warren E. Burger: Mr. Sitkin, you may proceed.
Mr. Peter E. Sitkin: This case involves the question of what procedural rights are to be afforded to the most dependent members of our society: the aged, the disabled, the blind, and the children of the poor.
The basic issue presented by this case is whether welfare recipients, after being found eligible, after full and vigorous investigation, are to have their benefits terminated without an opportunity for a full and fair adjudicative hearing.
In California, at the present time, there is a hearing which comports with the requirements of due process after the termination of welfare benefits.
Under the regulations adopted by the Department of Health, Education, and Welfare, this hearing takes place-- should take place within 60 days from the date of termination of benefits.
In point of fact, the hearing takes place long after that 60-day period, as has been conceded by appellees of this case.
Justice Potter Stewart: Is this a federally part-- federally funded program?
Mr. Peter E. Sitkin: Yes, it is.
The appellants who I’m representing specifically are old age security recipients who are recipients under the Categorical Aid Program funded by the Social Security Act.
The regulation at issue in this case concerns all of the categorical aid programs, that is, the Aid to Families with Independent Children, Aid to the Blind, Aid to the Disabled, as well as Old Age Security.
Prior to termination of benefits, a welfare recipient is not afforded an adjudicative hearing to contest the reasons upon which the department has based its decision to terminate.
A welfare recipient is only provided with an opportunity to confer informally, usually with the very individual who has made the initial decision to terminate at a conference which can take place at a minimum of three days before a check will be terminated or a check will be withheld.
There is no opportunity within this short period of time to adequately prepare for this conference, nor is there an opportunity at the conference to have an opportunity to fairly and fully adjudicate the questions which might involve continuing eligibility.
Questions, for example, such as whether an individual has intended to transfer property to remain on public assistance, questions which are traditionally been decided in adjudicative hearings with the procedural protections usually connected with such hearings.
Justice Potter Stewart: Mr. Sitkin, you said that a person becomes eligible after a full investigation.
What is the procedure?
That’s not a trial type hearing, is it?
A person applies for old age assistance.
There’s no trial type hearing before he’s found to be eligible, is there?
Mr. Peter E. Sitkin: No, there is no trial type hearing prior to eligibility.
Justice Potter Stewart: What is the procedure?
Mr. Peter E. Sitkin: An individual applies to the Welfare Department and information is provided by that individual.
The regulations of the Department of Health, Education, and Welfare indicate that the recipient himself is to be the primary source of the information regarding his eligibility.
The department obtains consents from the individual and, if necessary, investigates the individual’s eligibility by contacting collateral sources with respect to the income that the individual might have or with respect to other particulars that concern his eligibility.
Justice Potter Stewart: But there’s not an open hearing with confrontation and cross-examination and--
Mr. Peter E. Sitkin: Not for an individual who’s applying for assistance.
Justice Potter Stewart: No.
Mr. Peter E. Sitkin: The issue before this Court is whether or not an individual who has already been found eligible prior to the withholding of those benefits should be afforded an opportunity--
Justice Potter Stewart: I understand what the issue is.
I’m-- we’re talking about the process by which somebody eligible becomes ineligible.
Mr. Peter E. Sitkin: Right.
Justice Potter Stewart: My question was directed to the how did he become eligible in the first place and that’s, as I understand it, not anything like a trial type hearing.
Mr. Peter E. Sitkin: There is no hearing.
There is a full investigation with respect to the individual and, I might add, that as an individual remains on public assistance, he is periodically reinvestigated and is required to provide the department with information to maintain his eligibility.
Justice William O. Douglas: Who determines the eligibility?
Mr. Peter E. Sitkin: Initially?
Justice William O. Douglas: Yes.
Mr. Peter E. Sitkin: The County Welfare Department in the particular-- in California, the welfare programs are administered locally by County Welfare Departments, although the overall supervision of the program rests with the State Department of Social Welfare, but it is the individual County Welfare Department, usually in the person of the social worker or the social work supervisor who initially approves the application for eligibility.
If there is a dispute with respect to eligibility, the individual is afforded an opportunity for a hearing to contest the reasons why the department has refused to grant assistance in the first instance.
Justice Potter Stewart: Is that a trial type hearing?
Mr. Peter E. Sitkin: Yes, that is a trial type hearing.
Justice William O. Douglas: Is it your contention that once a person has been declared eligible by this county authority that he cannot be cut off without depriving him of a constitutional privilege?
Mr. Peter E. Sitkin: Yes, it is our position that once a person is found eligible for public assistance, if he is not afforded opportunity to be heard with respect to the reasons for discontinuance, then his rights in the Due Process Clause would be violated since he is not being afforded a fair opportunity to contest the very reasons upon which the governmental agency has made its decision to terminate benefit.
Justice William O. Douglas: And there never was any contest of that originally of eligibility?
Mr. Peter E. Sitkin: At the time that the individual applied for aid, he did meet the qualifications for the program.
Justice William O. Douglas: He met the qualifications, but was there any trial type procedure?
Mr. Peter E. Sitkin: Well, there would be no need in--
Justice William O. Douglas: Was there any-- was there any trial type procedure when he was first declared eligible?
Mr. Peter E. Sitkin: There would only have been a trial type procedure if the Welfare Department had initially found the individual to be ineligible and then he took an appeal from that initial determination.
Justice William O. Douglas: Is it your answer then that there was no trial type procedure in these cases?
Mr. Peter E. Sitkin: There is no trial type procedure when an individual applies to welfare.
Justice William O. Douglas: He is ineligible without any trial type of procedure, and you’re argument is that it’s unconstitutional to cut him off without a trial type procedure.
Mr. Peter E. Sitkin: That is our position.
Unless an individual is able to convince the very individual who made the initial determination that a person is ineligible, unless he is able to convince that person that this informal conference held, as I mentioned, three days prior to the date that it should be held, he has no opportunity to have his aid continue until the state administrative hearing is provided at least 60 days after the termination of his benefits.
In determining the extent to which procedural protection should be afforded to a welfare recipient, this Court in numerous occasions has indicated that one must examine the system in which the procedural protections will operate, examine the interest of the individual concerned, and examine the interest of the state or the governmental agency involved.
The one overwhelming and unique factor which is present in the welfare programs, which is present in no other government program is that maintenance of the welfare grant is the difference between survival, between starvation and continuation of some type of sustenance.
It is this fundamental interest on the part of the individual that, we assert, must be protected by those procedures which this Court has considered to be appropriate in adjudicative hearings.
Protections such as the right to cross-examine and confront where appropriate, the opportunity to have a decision made by at least a relatively impartial arbiter, not the very individual who made the initial determination, to withhold benefits, that an individual be afforded a reasonable opportunity to prepare for the hearing, a hearing which might, in the many instances, involve the preparation of some interpretation.
For example, in the case of Mrs. Wheeler, the appellant in this case, Mrs. Wheeler had to submit one or two affidavits to the Welfare Department.
This would take some time.
She’s given just a three-day period.
She must, in many instances, retain a representative or counsel.
Mrs. Wheeler was 77 years of age when her benefits were terminated and did need the assistance, first, of a lay representative and, ultimately, of an attorney.
Justice Potter Stewart: The real issue between you and your adversary, I-- unless I’m mistaken, is when this hearing need be given, isn’t it?
Mr. Peter E. Sitkin: That is the basic issue in the case.
Justice Potter Stewart: Because the hearing of the kind and quality that you’re talking about is ultimately given under the law, isn’t it?
Mr. Peter E. Sitkin: Yes, it is.
Justice Potter Stewart: That’s ultimately given.
Mr. Peter E. Sitkin: The hearing is ultimately given, but it is our contention that given the injury that occurs to an individual when benefits are withdrawn, that in those relatively few cases, and I underscore that, the relatively few cases where the question of ineligibility is contested, an individual should be given an opportunity to have this type of hearing prior to the withdrawal of benefits.
We are not talking about a hearing procedure which is going to be available for all one million welfare recipients in California nor the 23,000 old aged security recipients who have been discontinued from assistance, for the figures bear out that it is a relatively few number of welfare recipients that appeal the determination of the Welfare Department.
In many instances, there is agreement.
An individual obtains employment and is no longer eligible for assistance.
His income now exceeds the welfare limitations.
In another instance, an individual may have remarried and may no longer be in need of additional public assistance.
So that, we are only concerned about those issues we are-- those situations where serious questions of fact have arisen between the welfare recipient and the County Welfare Department, and it is to that issue that we search an adjudicative hearing having basic protections is necessary.
Justice Thurgood Marshall: With the second, suppose California said after this three-day hearing, we will continue, but if you don’t successfully meet the appeal procedure within 60 days, you’re out.
Mr. Peter E. Sitkin: That-- if that administrative decision was made by the State of California that would be satisfactory to the appellants in this case.
The problem about--
Justice Thurgood Marshall: So, to make it final, your real criticism is to cut off the money for two months.
Mr. Peter E. Sitkin: Yes, if in fact California was adhering to the 60-day requirement.
Justice Thurgood Marshall: Suppose California said you lose in the first instance and you win in the second instance and so, we give you the two months if you win.
Mr. Peter E. Sitkin: If-- you’re saying that if we lose in the first instance and we win in the second instance and then we get retroactive benefits, that is not sufficient to fully make whole, if you will, the individuals who were terminated from assistance.
As this Court has noted in a case decided last term, in Nash versus the Florida Industrial Welfare Commission, the fact that an individual ultimately can recoup through retroactive payments is not a satisfactory answer when the funds are necessary to provide the difference between continuing subsistence and possible starvation.
Justice Harry A. Blackmun: What’s the case you’re referring to?
Mr. Peter E. Sitkin: The case was the case in Florida where an individual was when the Florida law precluded--
Justice Harry A. Blackmun: Did the case reach this Court?
Mr. Peter E. Sitkin: Yes, it was.
Justice Harry A. Blackmun: It was decided.
Mr. Peter E. Sitkin: Nash versus Florida Industrial Commission.
Justice Harry A. Blackmun: What’s the citation?
Mr. Peter E. Sitkin: The citation to the case is 389 US 235.
In addition, if the Court would review particularly the affidavit of Henry Fraser which is contained at the rec-- in the record, not in the appendix, in the record at pages 137 through 140, the Court will graphically appreciate the circumstances that individuals are placed when benefits are withheld even for a period of 60 days.
In the situation of a number of the interveners in this case, the individuals were reduced to a diet of potatoes to not having the ability to purchase any type of clothing and to severe injury, but it must be made plane that in California, at the present time, not even the 60-day requirement is being met.
One would assume, however, that if the hearing preceded termination that the 60-day requirement would be met, indeed, the experience in a number of states who have instituted a continuation pending the hearing has resulted in a situation where hearing decisions are rendered within two weeks, so that when there is the additional interest on the part of the state, both to rapidly adjudicate the decision so that additional moneys are not paid out in some instances to potentially ineligible persons, the hearings are held expeditiously and rapidly.
This flexibility is available within the administrative agencies involved and the individual, the recipient, can be afforded those rights which are traditionally associated.
Justice Lewis F. Powell: May I ask you of-- suppose a pension has been granted or receipt or whatever you call it, and the Congress or the legislature wants to repeat it.
Is it your position that the constitution forbids it?
Mr. Peter E. Sitkin: No, it is not our position.
Our position is that an individual does not have, we use the term, “vested right” to the benefits which he is be-- receiving, but however we characterize that interest, it is a substantial one and it is an interest which should not be taken from an individual without according that individual basic elements of procedural fairness and due process.
Justice Lewis F. Powell: Has that ever-- question ever been tested with reference to any pension, Revolution War pension, Civil War pension, Spanish-American pension, or the First and Second World War pension?
Mr. Peter E. Sitkin: I don’t believe that the specific issue before this Court in this case has been tested with respect to the procedural rights that are to be afforded individuals, but there have been cases that have been decided by this Court that have indicated that however one characterizes the interest, that government must act in a fair and reasonable way in the administration of programs where basic interests are involved, whether one characterizes it as a right, as a vested right, or as a privilege.
Justice Lewis F. Powell: Well, would it be your position that a pension cannot be cut off where once it’s been decided that a man gets a pension without giving him some kind of hearing before it’s cut off?
Mr. Peter E. Sitkin: One-- to answer that question directly, one would have to be aware of the circumstances under which the pension was granted.
Justice Lewis F. Powell: Just the pension?
Just the pension, just granted because he was in the army--
Mr. Peter E. Sitkin: Well, under those--
Justice Lewis F. Powell: Of course the government doesn’t have to grant it.
Mr. Peter E. Sitkin: The government does not have to grant it in the first instance, but once it does grant it and assuming that the legislation remains in effect, then the individual should be entitled to continue to receive that pension until he is afford-- unless there’s a determination which is reached after a reasonable opportunity to adjudicate the matter, the individual is no longer eligible for that pension.
Chief Justice Warren E. Burger: You’re not suggesting that the legislature would have to consult with anyone if the legislature decided to repeal the entire program, would-- are you?
Mr. Peter E. Sitkin: No, not at all.
I’m not suggesting at all that that legislature does not have within its power the right to withdraw the-- any government benefit program.
The issue is whether or not once the legislation has been passed and once benefits are being provided to individuals, before specific individual’s welfare assistance is removed, he should be afforded those opportunities which have been afforded individuals in like circumstances by this Court.
Justice Byron R. White: How about employment termination?
You’re working for the federal government.
Do you have a constitutional right to-- not to be terminated until there has been a trial type hearing?
Mr. Peter E. Sitkin: My position that you do have a right to have a hearing which ahs the basic elements of due process before termination--
Justice Byron R. White: What’s this Court said about that?
Mr. Peter E. Sitkin: This Court, in the case of Green versus McElroy which, admittedly, was not a constitutional decision but spoken constitutional terms, indicated that basic procedural protections are indeed essential before the right to-- public employment is withdrawn.
Chief Justice Warren E. Burger: But in Cafeteria Workers that was not made quite as rigid, was it?
Mr. Peter E. Sitkin: No.
In Cafeteria Workers it was not made as rigid, but the Court clearly indicated that due process applied and, with the analysis I suggested earlier, should be undertaken.
In that case, it was felt that the interest of the government and national security and the fact that the individual involved in that case was not so substantial that procedural safeguards of the type we’re seeking here should be afforded.
In that case, the individual was only stopped from working at one particular base.
What we have in this particular situation is the withdrawal of the very means of subsistence to an individual.
Justice Byron R. White: Do you mean that the pay of a federal employee may not be stopped pending a hearing?
That before he could be suspended from the job and his pay stopped there must be a trial type hearing, and you say this Court has held that?
Mr. Peter E. Sitkin: This Court has held in cases where there has not been the overwriting interest of national security that a public employee does have an opportunity to be afforded an opportunity be heard--
Justice Byron R. White: Before his pay--
Mr. Peter E. Sitkin: Before his--
Justice Byron R. White: Before his pay is stopped.
Mr. Peter E. Sitkin: Before his benefits are-- before his wages are taken.
Chief Justice Warren E. Burger: In what case did the Court hold that?
Mr. Peter E. Sitkin: As I indicated, in the case of Green versus McElroy--
Chief Justice Warren E. Burger: It didn’t deal, did it, with the question of when the pay could be stopped in relation to the time of the hearing?
If I recall correctly, McElroy was put on suspended status and his pay was stopped and such hearing, as he was given, was given at a later date.
When he was ultimately reinstated, he got backpay retroactive to the date of the suspension.
It seems to me, that’s the point to which Mr. Justice White is addressing himself.
I’m not sure you’ve answered it.
Mr. Peter E. Sitkin: In the case of Sloucher versus the City of New York, the individual in that particular case was afforded an opportunity to be heard before his wages were withdrawn.
Justice Byron R. White: Did the Court hold that the state had to do that?
Mr. Peter E. Sitkin: Excuse me?
Justice Byron R. White: Did the Court hold that the state had to do that, to afford such a hearing?
Mr. Peter E. Sitkin: I believe so.
Justice Byron R. White: Well let’s assume, for example, that there is no constitutional requirement for a trial type hearing before termination of employment and before at least termination of the man’s pay, although he has-- may have ultimately a right to a trial type hearing.
Would you say that, nevertheless, the welfare recipient is entitled to a trial type hearing prior to termination of benefits?
Mr. Peter E. Sitkin: I would say that the welfare recipient is entitled to such a hearing.
Justice Byron R. White: Regardless of what the employee is--
Mr. Peter E. Sitkin: Regardless of what the employee is entitled to--
Justice Byron R. White: Now, what if--
Mr. Peter E. Sitkin: Because, again, the individual was on public assistance, really is receiving the last public defense.
Justice Lewis F. Powell: I’d like the answer to be clear about this part of your argument.
Is it your position that when Congress or a state enacts a gratuity piece of legislation, giving somebody something out of the treasury and declares that issue be found eligible by agencies, that they can never be declared ineligible without going through a tri-- a type of trial procedure?
Mr. Peter E. Sitkin: Not at all.
Our position is that an individual can be found initially ineligible by the Welfare Department, but he must be notified of that fact and, if he contests that determination, then should be entitled to a hearing which affords him basic procedural safeguards when such a vital interest is involved.
Justice Lewis F. Powell: But then I guess-- maybe I’m-- my question was right.
I don’t quite understand your answer.
Is it your position that when there’s a gratuity given, such as has been given in many wars, after many wars, bread, meat, gratuity of various kind, somebody is found eligible by an agency, that the government cannot deprive that person of that gratuity without going through a trial type procedure?
Mr. Peter E. Sitkin: If there is an individual dispute regarding eligibility, then the individual should be afforded a hearing.
The problem I have with the question is the term “trial type.”
Justice Lewis F. Powell: Well--
Mr. Peter E. Sitkin: We’re not asking for a hearing which has all the--
Justice Lewis F. Powell: Well, I’m saying you say they have to have notice before the--
Mr. Peter E. Sitkin: Yes.
Justice Lewis F. Powell: Government cut it off?
Mr. Peter E. Sitkin: Right.
Justice Lewis F. Powell: Now, after the Civil War, there were large numbers of gratuity given in this country of food and meat and raiment of various kinds.
Was there any show-- any case record involved in that gross gratuities?
Mr. Peter E. Sitkin: Not to my knowledge.
Justice Lewis F. Powell: Has there ever been one before with reference to gratuity where it has been insisted that a pure gratuity, a man has such a right to it after he once gets it, that he must have notice before the government cuts it off?
Has it ever been directly held and, if so, when?
Mr. Peter E. Sitkin: There is no direct holding with respect to a welfare--
Justice Lewis F. Powell: Not the wel-- this statute and on any statute in the history of the government.
Mr. Peter E. Sitkin: There-- in the case of Goldsby versus Garfield, which, was decided in 1908--
Justice Lewis F. Powell: What was that?
Mr. Peter E. Sitkin: Goldsby versus Garfield.
Justice Lewis F. Powell: What report?
Justice Potter Stewart: Citation.
Justice Lewis F. Powell: What report is the case?
Mr. Peter E. Sitkin: I don’t have the citation.
I will attempt to furnish it to you.
Justice Lewis F. Powell: And what Court was it?
Mr. Peter E. Sitkin: It was the United States Supreme Court.
Chief Justice Warren E. Burger: Is it in your table of cases of you brief?
Mr. Peter E. Sitkin: No, it’s in the amicus brief in the companion case.
The citation to the case is 211 US 249.
Justice Potter Stewart: What’s that about?
Mr. Peter E. Sitkin: In that case, it was a question of the government providing to individuals Indian lands, and Mr. Goldsby in that case was initially found eligible for an allotment of this land provided by the federal government and the Court held in that case that the action of the Secretary in removing Mr. Goldsby from the roles of the individuals who were entitled to that land without affording Mr. Goldsby an opportunity to be heard and notice was a violation of due process.
Justice Lewis F. Powell: They held to cut him off from land that he had been legally held on, didn’t he?
Mr. Peter E. Sitkin: Well, that was the issue.
The question was whether or not he did, in fact, have the right--
Justice Lewis F. Powell: They found that he legally own it.
Mr. Peter E. Sitkin: No, the Court did not find that he did or did not legally hold that land.
That was an issue to be left for the administrative determination.
The Court was only dealing with whether the Secretary could absent any type of an opportunity to be heard on the issue of whether or not Mr. Goldsby did, in fact, have proper title to that land, whether he could continue on the land.
Chief Justice Warren E. Burger: Mr. Sitkin, I remind you, you’re now cutting into your rebuttal time.
Mr. Peter E. Sitkin: Yes, I think I will conclude at this particular point.
I would just like to make clear to the Court that what we are dealing with here is not a large mass number of individuals who will be continuing aid.
It is only in those situations where there are serious issues of fact involved that we are asserting that there is a right to continuation of assistance and, given the vital interest of the individuals who were involved here and given the fact that administrative procedures have already been developed by the state, it is our position that due process requires the procedural protections which we assert are required in this case.
Chief Justice Warren E. Burger: Thank you, Mr. Sitkin.
Argument of Elizabeth Palmer
Ms Elizabeth Palmer: Yes, Mr. Justice.
May it please the Court.
If I may directly rebut what my colleague has brought to the Court’s attention in Goldsby, the Goldsby case there was a hearing prior to the determination of eligibility to being placed on the list for the allotment of land.
Now, the Secretary struck the name from the list without any hearing, and that is not comparable to the situation that is before this Court.
I ask the Court to take a close look at the pre-withholding termination of aid procedures.
It isn’t a three-day notice.
Just there we are, “three-day notice you are going to be cut off aid.”
It is preceded by an investigation, discussion where a case worker, as soon as there is any hint of ineligibility, the recipient is the primary source of information.
Collateral resources are only consulted with the consent of the recipient who has also explained why we want to see Mr. X or whoever, the reasons for that.
If the notice does go out of withholding or contemplated withholding, it is only sent out when the evidence of ineligibility is both substantial in nature and reliable in source.
It’s not hearsay on hearsay on hearsay or gossip, rumor, or surmise.
It must be substantial in nature and reliable in source.
Justice Thurgood Marshall: Mrs. Palmer, how can the recipient test that out as to how reliable it is and how non-hearsay it is and how- how can the recipient test that out?
Ms Elizabeth Palmer: With the assistance of the Office of Economic Opportunity attorneys, Your Honor.
Justice Thurgood Marshall: I didn’t mean--
Ms Elizabeth Palmer: I didn’t-- I’m not being facetious, Your Honor, but with counsel as able as my opponent here and with the offices of the Office of Economic Opportunity, they are closely scrutinizing this and, also, Mr. Montgomery--
Justice Thurgood Marshall: They didn’t--
Ms Elizabeth Palmer: The appellee is-- I beg your pardon.
Justice Thurgood Marshall: Excuse me, Mrs. Palmer.
Ms Elizabeth Palmer: Yes.
Justice Thurgood Marshall: I’m talking about before the end of this three-day period.
How can the recipient test all these out?
Ms Elizabeth Palmer: The case record is open, Your Honor.
There is the investigator’s report.
There are the names of the sources of information.
Justice Thurgood Marshall: That’s all given to the recipient?
Ms Elizabeth Palmer: There-- the case record is right there to be opened to the recipient.
Justice Thurgood Marshall: There’s a given--
Ms Elizabeth Palmer: Any time-- at any time with counsel, Your Honor.
Justice Thurgood Marshall: Well, the recipient without counsel?
Ms Elizabeth Palmer: The recipient without counsel can walk in and look at his or her record too.
Justice Thurgood Marshall: Is it turned over to him?
Ms Elizabeth Palmer: Absolutely.
The law requires it.
Justice Thurgood Marshall: Or is it handed to him to say that “if you want to look at it, you could look at it.”
Ms Elizabeth Palmer: I beg your pardon, sir?
Justice Thurgood Marshall: Is it just said “here it is.
If you want to look at it, you can look at it.”
Ms Elizabeth Palmer: They walk in.
They ask for their case record, which is required to be kept, and it is immediately made available to them to look through, take notes with or without counsel.
Justice Thurgood Marshall: Well, what do they get in writing?
Ms Elizabeth Palmer: In the case record, sir?
Justice Thurgood Marshall: Yes, please.
Ms Elizabeth Palmer: In the case record, there is the narrative of every--
Justice Thurgood Marshall: No, I mean, what is the recipient handed that tells the recipient this is what is-- you were wrong about.
Ms Elizabeth Palmer: Alright.
The notice says “must include,” according to the resolution, “must include the grounds for the contemplated withholding of the aid, what information is needed to maintain eligibility.”
Now, no longer can there be the cryptic notice of “essential information is lacking,” because the “what essential information” has to be put right there in the notice, plus the fact that they are advised that they may have counsel, they are advised that they may come in at a specified time at a specified place for a conference with a case worker, eligibility worker, or other county representative.
That, in the event, no agreement can be reached between the case worker, and I must say that, in the large counties, the interview would not normally be with a case worker because there is a special complaint and review unit that is set up that the interview would be, in partial, referee.
But, you must realize that the California’s 58 counties vary greatly in size.
Alpine County has a welfare caseload of 84.
Los Angeles County has well-over half-a-million.
There is a-- the availability of staff for these interviews.
Justice Lewis F. Powell: What county was that you said had had a million?
Ms Elizabeth Palmer: Los Angeles County, Your Honor, with around 11,500 welfare workers.
Alpine County has three.
Chief Justice Warren E. Burger: 11,000 welfare workers?
Ms Elizabeth Palmer: 11,500 welfare workers in Los Angeles County and over-half-a million welfare recipients.
So, California cannot blank it and that’s why Mr. Montgomery, in promulgating regulations, has to consider the varying problems of these counties.
Regulations of the Department of Social Welfare are not-- they are only adopted after public hearing, where interested individuals, organizations, and including the welfare directors who don’t always get together on what they want, as you can very plainly see because of their different problems.
Consequently, the regulation that is being attacked here is a result of compromise, as most legislation is.
The-- then if-- then follows the fair hearing.
That is the full trial type adjudicatory hearing which is required by-- under the Social Security Act.
Justice William J. Brennan: What happens at the pre-termination stage where there is this conflict and there’s a last conflict of fact?
Do the recipient, in views of the fact, trying to make a relief and agencies in our nation says, that’s not correct.
Ms Elizabeth Palmer: Well, if it’s a factual situation, Your Honor, then it is a difficult question.
It is whether the review unit of the department feels that the evidence is substantial as to ineligibility.
Justice William J. Brennan: Well, that’s what your adversary is talking about.
Ms Elizabeth Palmer: Then, if it’s on a policy matter, there is an immediate review by the State Department, not the fair hearing, but on whether, under these facts, this policy should be applicable.
Justice William J. Brennan: I’m not talking about policy.
The policy is already set.
It’s just if the recipient is right in his taking of the facts, the policy, whatever may it be, was satisfied.
It’s not like the policy is not satisfied, it’s just the plain issue of that.
Ms Elizabeth Palmer: Your Honor, in-- the Wheeler case is a perfect example of conflicting evidence, but if the State Department had been consulted, there was a misapplication of regulations to the facts even with the dispute.
Did she get rid of this money to remain eligible on aid?
The regulation said it felt that you have to consider her purpose.
She is the primary source of whether she did or did not get rid of this money to remain eligible for welfare.
Consequently, on the very same facts, the referee held that she was eligible for aid.
So normally, in factual disputes, surely they say “I did,” somebody else says “you don’t,” and someone has to decide and the review unit of the county is the one who decides at this initial stage.
Justice Potter Stewart: This case, in fact, involved the kind of factual issue to which my brother Harlan referred to.
Ms Elizabeth Palmer: Yes.
Justice Potter Stewart: Didn’t it?
Ms Elizabeth Palmer: Yes, Your Honor.
Justice Potter Stewart: This Mrs. Wheeler was the-- received the proceeds of her deceased son’s veteran’s insurance policy.
Ms Elizabeth Palmer: That is true.
Justice Potter Stewart: At least she was the beneficiary under that.
Ms Elizabeth Palmer: That is true.
Justice Potter Stewart: And the son died, and the department claimed that she had received the proceeds and she claimed that she had transferred the proceeds to a nephew, first, claiming that it was debt of her son to the nephew and then amending her story to say that it was carrying out her son’s--
Ms Elizabeth Palmer: Dying wishes.
Justice Potter Stewart: Dying wish.
Ms Elizabeth Palmer: And with the obligation to report these funds and not having done so despite conferences with her-- interviews with her case worker, I presume that that had some human element of doubting the story. Getting to the fair hearing and the link of time that it takes for the fair hearing, in appellant’s reply brief, there is set forth a table that I found shocking of the case’s fair hearings that have been pending from one to two years.
I immediately called the Chief Referee of the department and he, with very little time, went through the ones that were over year old, and he found that in most of them, if not all of them, should have been closed out due to being unable to find the claimant, that the matter had been settled at the department level, that the claimant had asked for an indefinite continuance, and so on.
But, most of these-- but due to the terrific increase in fair hearing requests from 500 normal requests a month to 700 now, in July, August, and September, that they felt that they should try to meet the 60-day requirement, try to meet the state regulation that the hearing must be held within 17 days of the request for the hearing, and not bother because they haven’t had a commiserate increase in clerical staff or referees.
Consequently, they have also adopted the position that when the referee hears it, and that the claimant is right, that’s going to be the referee’s decision, that decision goes out immediately, less harm to the recipient whose hearing decision is going to be unfavorable to the claimant.
Now, that isn’t ideal, but at least it’s the best thing that the department feels that they can do under the circumstances.
So, I ask you when you would look at that chart to please do not be as shocked as I was when I looked at it, that there are reasonable explanations for that link of time.
In another table of statistics, the same series as this table 62, is table 60 which may give the Court some idea of the number of fair hearings that are filed.
Last fiscal year, there was 6,218.
This is 2,000 more than the preceding year.
That 5,915 appeals were closed last year.
That’s 2,769 more than the preceding year.
So, all I can say is that the State of California is working at it.
Chief Justice Warren E. Burger: Is there anything in this record, Mrs. Palmer, about what success the State of California has had in recouping of payments improperly made to recipients who were determined not to be eligible?
Ms Elizabeth Palmer: No.
I don’t know of any statistics, Your Honor.
I have-- I understand that it’s not too successful. California does not take liens on property as some other states do.
California-- I must also, and I’m sorry I forgot to bring to the Court’s attention that in California, one of the peculiarities of California I guess, the counties on general assistance or home relief, whatever you want to call it, it is solely county financed with solely county standards.
We are here talking only about the so-called categorical aids, the federal state finance programs which the counties also participate in California.
So, you can have as wide a range in what benefits are received under general assistance as there are 58 counties.
As a matter of fact, I assume, and I’m pretty sure of that, there are some gross inadequacies in this program, perhaps equal to $35 a month for a family of four on the average grant in Mississippi.
Justice Potter Stewart: But, we’re not-- there-- in this case, there’s no issues about general assistance.
Ms Elizabeth Palmer: No.
There is, in the next case, it is common.
Justice Potter Stewart: Is it the amount of it or how one becomes eligible or how one becomes ineligible or anything else?
This case does not involve--
Ms Elizabeth Palmer: No.
Justice Potter Stewart: Except the federal assisted categorical program?
Ms Elizabeth Palmer: Yes, and I wanted to make that clear, Your Honor, because I believe that the New York case does involve general relief or home assistance.
Justice Thurgood Marshall: May I ask of you what position you take when a person has been put on the program to get the money, the relief.
Ms Elizabeth Palmer: Your Honor--
Justice Thurgood Marshall: The state wants to terminate it.
Can it terminate it without a hearing?
Ms Elizabeth Palmer: Your Honor, we submit that we do give a hearing, but--
Justice Thurgood Marshall: You what?
Ms Elizabeth Palmer: We do, this pre-withholding procedure and hearing satisfies due process under the circumstances of the case.
This-- we conceded that there was statutory entitlement to aid as long as there was eligibility, but if there is substantial evidence on ineligibility, then the procedure that I have outlined to you satisfies due process under these circumstances, and then followed--
Justice Harry A. Blackmun: Well, do you mean satisfy the requirement for notice?
Ms Elizabeth Palmer: Notice and--
Justice Harry A. Blackmun: Hearing?
Ms Elizabeth Palmer: And a hearing or a conference says-- as it is termed.
Even a fair hearing--
Justice Harry A. Blackmun: There’s no dispute that they are not entitled to it or as to the date in which they are trying to put into effect?
Ms Elizabeth Palmer: Your Honor, when-- if I understand correctly, on following a fair hearing and the if the decision is in favor of the claimant, it is retroactive to the date of termination.
There is retroactive payment.
Justice Thurgood Marshall: Mrs. Palmer, part of due process to have a hearing officer that has no interest whatsoever in the matter?
Ms Elizabeth Palmer: It depends upon the circumstances, Your Honor.
There are cases that hold that--
Justice Thurgood Marshall: Well, is it your idea of due process that the person making the charges should arbitrate it?
Ms Elizabeth Palmer: California Supreme Court has held in Griggs against Board of Education that one--
Justice Thurgood Marshall: I have great respect of the California Supreme Court, but I still don’t believe the California Supreme Court has ever said that the person making the charge has the right to judge it.
If they have--
Ms Elizabeth Palmer: It isn’t--
Justice Thurgood Marshall: I’d like to hear that.
Ms Elizabeth Palmer: I beg your pardon, Your Honor, it isn’t a charge.
It’s questioned eligibility and it’s an exploratory and, I contend, a non-adversary proceeding to determine, is there eligibility or not?
Justice Thurgood Marshall: Well, what do you say to Mr. Sitkin’s point that it’s a question of whether the person eats or not?
That’s our understanding of what his point is.
Ms Elizabeth Palmer: Your Honor, I can’t defend the welfare system, and I don’t think anyone can.
It is indefensible.
No one is happy with it.
Certainly, the poor are not happy with it and the taxpayer is less happy than because of the enormous amount of money that goes into it.
I’m not defending the system.
I’m merely saying that the procedure that California has adopted does satisfy, at this stage of the proceedings, due process.
Justice Byron R. White: Mrs. Palmer, does the federal law permit a state to terminate benefits pending a full trial type hearing?
Ms Elizabeth Palmer: Yes, Your Honor, they do.
Justice Byron R. White: Although the federal law requires a fair hearing?
Ms Elizabeth Palmer: That requires a fair hearing and--
Justice Byron R. White: It’s enough to satisfy the federal law if you grant the fair hearing after the determination of benefits?
Ms Elizabeth Palmer: That is correct, Your Honor.
Justice Byron R. White: But, at the same time, I suppose the federal law would continue to support the state program if the state didn’t terminate pending the--
Ms Elizabeth Palmer: That is true, Your Honor.
The option is there for the state.
Justice Byron R. White: If California wanted to, after the informal conference where termination was decided on, if California wanted to continue benefits pending a full trial type hearing, the federal government would contribute?
Ms Elizabeth Palmer: That is correct.
Justice Byron R. White: But, also, if California doesn’t want to do that, which it doesn’t, the federal law--
Ms Elizabeth Palmer: That is the auction of the state.
Justice Byron R. White: So, under the federal statute, the federal authorities construe the fair hearing provision, I take it, to be satisfied by California system?
Ms Elizabeth Palmer: Yes, that is correct, Your Honor, and the brief of the Solicitor General confirms that.
Justice William J. Brennan: Mrs. Palmer, as I understand it, the state’s position is that what is now provided before actual termination satisfies due process?
Ms Elizabeth Palmer: Yes, Your Honor.
Justice William J. Brennan: And do I understand that inquisit in that is a concession that, constitutionally, something in the way of due process must be afforded before there may be a termination?
Ms Elizabeth Palmer: That- yes, Your Honor.
That was admitted at the very early stages, and that is why the appellee promulgated these regulations to strengthen the procedure.
Justice William J. Brennan: That being so, I gather the issue for us, if that concession states constitutionally the requirement is simply whether what you do provide does satisfy the constitutional conflict--
Ms Elizabeth Palmer: That is the conflict.
It’s really, do we satisfy due process with the procedure we have?
And, may I point out to the Court that, in many instances, Court judgments are based on just affidavits.
That, preliminary injunctions, temporary restraining orders, arrest warrants, and so on are just affidavits and this is more than just affidavits.
Justice Thurgood Marshall: Mrs. Palmer, I draw that if the recipient says “I need more than these three days to get these affidavits,” they would give them that extra time?
Ms Elizabeth Palmer: I can’t answer that, Your Honor. I’m sorry.
Justice Thurgood Marshall: I imagine it would vary, wouldn’t it?
Ms Elizabeth Palmer: It would vary.
Justice Thurgood Marshall: But there’s nothing in the matter before us that says it has its way on it.
There’s nothing in this record?
Ms Elizabeth Palmer: No, there’s nothing in the record about it, and I was interested in counsel stating that the only time they want the full fair hearing prior to termination is when there are “factual conflicts,” I believe was the statement.
That isn’t the prior that was asked for.
The prior asked for the full fair hearing whenever a county is contemplating suspending, terminating of ai-- or withholding of aid.
This was the position that counsel took at the public hearing on the regulation.
This was our understanding of counsel’s position.
I am surprised that that, apparently, is not their position before this Court.
In California, one can file for a fair hearing within any-- within one year.
However, Under the Macola order, and you have heard about the Macola order which was a somewhat unusual order, which ordered when the preorder hearing conference to be held, just as I’ve outlined to you.
That if the Court-- if the department was satisfied that aid should be terminated, there was-- the recipient was so advised.
Then if the recipient requested a fair hearing accompanied by an affidavit which specifically negated the reasons given by the county for ineligibility, then aid must be resumed pending the fair hearing.
In the briefs, it’s pointed out that this has not been used very much that-- or not that it has not been used, but it hasn’t crossed state very much, and I contend it’s because it hasn’t been used very much.
There were only three restorations of aid from Los Angeles County where there are over half-a-million welfare cases.
So, whether this is being one of the most, well-kept secrets, I don’t know, but at least it has not been used.
It’s a cumbersome procedure.
It’s one that takes quite a bit of county time but, regardless of that, it’s-- it hasn’t created much of a stir.
Chief Justice Warren E. Burger: Thank you, Mrs. Palmer.
The case is-- does Mr. Sitkin have any time left?
Rebuttal of Peter E. Sitkin
Mr. Peter E. Sitkin: No.
Chief Justice Warren E. Burger: The case is submitted.