GOLDBERG v. KELLY
John Kelly, acting on behalf of New York residents receiving financial assistance either under the federally-assisted program for Families with Dependent Children or under New York State's home relief program, challenged the constitutionality of procedures for notice and termination of such aid. Although originally offering no official notice or opportunity for hearings to those whose aid was scheduled for termination, the State of New York implemented a hearing procedure after commencement of Kelly's litigation.
Does a state's termination of public aid, without affording the beneficiary a hearing prior to termination, violate notions of procedural due process as set out in the Fourteenth Amendment's Due Process Clause?
Legal provision: Due Process
Yes. In a 7-to-2 decision, the Court held that states must afford public aid recipients a pre-termination evidentiary hearing before discontinuing their aid. Noting that welfare benefits are statutory entitlements, rather than "privileges," the Court weighed welfare recipients' need for procedural due process against the competing considerations of the possible harm they might suffer from discontinuation and the government's interest in summary adjudication. The Court concluded that state interests in conserving administrative costs are not sufficient to override public aid recipients' interest in procedural due process. With respect to New York's newly implemented hearings, the Court found them deficient insofar as they did not permit recipients to present evidence, be heard orally in person or through counsel, or cross-examine adverse witnesses.
Argument of John J. Loflin, Jr.
Chief Justice Warren E. Burger: And we will hear now Loflin against Albert.
Excuse me, Goldberg against Kelly.
Mr. Loflin and Mr. Albert as counsel.
Mr. John J. Loflin, Jr.: May it please the Court.
In this case unlike the California case you just have described, there were two separate statutory forms of benefits involved.
The federal benefits which are substantially the same as those in the California case and what in New York is known as home relief.
The presence of the home relief recipients as plaintiffs in the cases that are here consolidated accounted for at least in part the decision of the court below to reach constitutional issues rather than leave the decision to rest upon a statutory basis.
They reasoned that even if they could resolve the case as to the federal beneficiaries, they would still have to face the problem of what to do about the state recipients.
So without pausing on that question, they went into the constitutional area.
These three cases here consolidated as per substantially identical relief, that is, as it went to the three-judge court below, plaintiffs were asking for a preliminary injunction requiring defendants to cease terminations without having a prior hearing which according to plaintiff's judgment would meet the standards of due process of law.
In addition, they wanted a declaratory judgment.
As we got to the three judge hearing stage, the declaratory judgment section of their relief focused upon a new New York State regulation which was in fact promulgated after the first of these cases was filed.
I would like to dwell for a moment on the sequence of events because it did have some influence I believe on the decisions below.
At the time the first of these cases was filed in New York, there was no pre-termination conference hearing procedure.
It was entirely possible and frequently happened that a beneficiary would simply receive a notice in saying your benefits have been cutoff, refer to your handbook or your pamphlet as to any rights you might have to have a fair hearing.
This led to unfortunate circumstances, unfortunate damage to a number of recipients and led directly to the filing of a lawsuit.
Shortly after the suit was filed, New York State followed California in adopting a pre-termination regulation.
Now this is a regulation which is here before this Court, Number 351.26.
As you may know in the State of New York, well over half of the total welfare recipients reside in the City of New York.
The state however promulgated this new regulation without consultation with the city; it reached the city officials in late February and was to become effective by its terms on March 1.
The state however did not provide hearing officers or training or any real guidelines much less any financing so that this machinery could be setup on what was at the time two or three days notice.
The city reacted to this by asking for conferences with the state officials to see if the impact of this new procedure on the city administration could be less.
In fact, after a series of conferences at which the difficulties of enforcing the new state regulation in a city with approximately 1 million people on welfare was pointed out.
The state resented its original regulation and then at the same time put out the regulation which is now before this Court.
It consists of two parts, 351.26 (a) and 351.26 (b).
A welfare district which New York City is one --
Chief Justice Warren E. Burger: Excuse me counsel, where -- could you -- could find in the -- briefs are -- the record will be (Voice Overlap) --
Mr. John J. Loflin, Jr.: Well, in the record its set forth at 127 (a).
And that's the regulation as finally adopted.
Justice Byron R. White: Is that the same as in your brief on pages 2 to 4?2 to 5?
Mr. John J. Loflin, Jr.: Yes sir.
351.26 (a) and (b).
Justice Byron R. White: 2 to 5?
Mr. John J. Loflin, Jr.: They are quoted in several different places, that's one.
Justice Byron R. White: Does that fall in your brief, pages 2 to 5?
Mr. John J. Loflin, Jr.: Yes sir, that's correct.
Justice Byron R. White: Was the date April 26, 1968?
Mr. John J. Loflin, Jr.: Correct.
Justice Byron R. White: That's the one?
Mr. John J. Loflin, Jr.: Yes sir.
Now, both of these subparagraphs that is (a) and (b) were challenged by the plaintiffs below.
The court examined both of them, held in fact that subparagraph (b) which had been adopted in New York City was unconstitutional as not affording proper due process of law and in particular, the deficits that they pointed out were the lack of confrontation and cross examination.
The three-judge court in the southern district saw no room for that in the procedure before it under subparagraph (b) and held that those were essential elements which must be present.
And since there was some ambiguity as to subparagraph (a), they construed subparagraph (a) to require confrontation and cross examination of adverse witnesses and said in effect, “If you don't operate it in that fashion, that Section too would be unconstitutional and a denial of due process of law.”
The state did not appeal in this case.
The city with an interest in subparagraph (b) is here before the court.
It is vital to our case for the court to understand that we do not rest alone on subparagraph (b) of 351.26.
It is the pattern or regulation in the State of New York for a city welfare district particularly, one of the size of the city in New York to adopt its own implementing regulations subject to state approval.
That was done in this case.
Our local regulation is known as procedure 68-18.
Now that is set forth in the record following pages 147 and 148.
I stress the importance of our local procedure because I think the court needs to have the full process before you and understand particularly how the client first becomes involved in these procedural steps.
Under our local procedure, the caseworker is obliged to notify the client when information comes to him indicating there is a question as a continued eligibility to receive benefits.
The caseworker has the duty of calling the client in and discussing these matters with them in a face to face conference.
The client is in a position then to discover what it is that has led the city to believe that this person is no longer eligible.
That client is in a position to tell the city why it is making a mistake if it is and to correct error if error there be.
In the event, the caseworker determines after a conference with the client that there is probable reason to conclude that the client is in fact no longer eligible, the case file in the caseworker's recommendation go to the unit supervisor where the entire matter is subject to review.
It is only if the unit supervisor concurs in the judgment of the caseworker, does the formal notice contemplated by 351.26 (b) issues -- that notice tells the recipient --
Justice Thurgood Marshall: Is that what you consider due process notice as -- is what you're talking about now?
Mr. John J. Loflin, Jr.: Your Honor I believe that the due process as I see it begins at the point where the client is called in for the conference with the caseworker.
Justice Thurgood Marshall: So your idea of due process is that the caseworker calls the person and just two of them in the room and he gives them notice and that's the type of notice that still process notice?
Mr. John J. Loflin, Jr.: That's where the process begins Your Honor.
If it stop --
Justice Thurgood Marshall: But is that a due process notice or not?
Mr. John J. Loflin, Jr.: For the purposes of this case, under these facts, I believe that it is, yes.
Justice Thurgood Marshall: Well, how does that fit with the constitution of your idea of what due process is?
Do you want to call this due process or not?
Mr. John J. Loflin, Jr.: I have accepted the fact that a welfare recipient faced with termination is entitled to due process appropriate to the circumstances.
This to me does not necessarily mean the type of due process that would be appropriate under circumstances of criminal law or civil case law or any number of other factual patterns.
Justice Thurgood Marshall: Well, what is it similar to?
Or do you say if something as peculiar to welfare?
Mr. John J. Loflin, Jr.: There are many facets which are peculiar to welfare.
There is no other --
Justice Thurgood Marshall: Do you have any other cases that you could cite to, other than a welfare case?
Mr. John J. Loflin, Jr.: As was adverted to earlier this morning, it bears some resemblance to the cases where public employees have been called up on charges and suspended but later given an opportunity to be heard.
There is a situation where monetary benefits of one sort or another or ultimately cutoff --
Justice Thurgood Marshall: But do you see any difference between a government employee making 20 thousand a year and a welfare worker as to be -- in able to live doing this due process period?
Mr. John J. Loflin, Jr.: Well, obviously the impact on the individual is much worse if we make an error in the case of someone who is destitute than if we make an error in the case of someone who is well off.
I don't doubt that.
Justice Thurgood Marshall: Well, why wouldn't you then be inclined to give them some due process?
Mr. John J. Loflin, Jr.: I definitely would be inclined and my position is that this --
Justice Thurgood Marshall: Your idea of due process is that the caseworker that's investigated it and has made up his or her mind that this recipient doesn't deserve it anymore calls him in and gives him a notice and hearing and the termination, that's your idea of due process?
Mr. John J. Loflin, Jr.: I don't accept the hypothesis sir that the caseworker has a closed mind at the time he advised the client to come in.
Justice Thurgood Marshall: Well, who investigated it?
Mr. John J. Loflin, Jr.: It may be the caseworker, information may come from other sources.
Information comes to the welfare department from many sources.
It may come from a bank, from a landlady, from a friend --
Justice Thurgood Marshall: Well, wouldn't the caseworker asked him to come in if the caseworker hadn't thought that there was bare possibility that perhaps the recipient might be wrong?
Mr. John J. Loflin, Jr.: That's the reason he is called in. the caseworker has some information which he wants clarified.
He gets hold of information which is of sufficient weight that he says, “I need a personal conference with this person to hear their side of the story and maybe he can explain this away.”
Justice Thurgood Marshall: Well, a personal conference is nothing close to a due process hearing, isn't it?
Mr. John J. Loflin, Jr.: Your Honor I contend that it is part of a procedure which when taken in its entirety constitutes such basic fairness that it is due process of law.
Justice Thurgood Marshall: That's your idea of fairness?
Mr. John J. Loflin, Jr.: Taken altogether, it is my idea of fairness but not truncating it and chopping it off at one little chapter and saying, “Well, this is all the due process the person is going to get.”
That's not my position.
But that's not the end of the process.
Justice Thurgood Marshall: When the supervisor says, “It's alright”?
Mr. John J. Loflin, Jr.: No sir.
Justice Thurgood Marshall: Well, when?
Mr. John J. Loflin, Jr.: We've had the meeting with the caseworker.
We've had the review by the unit supervisor.
We've had the notice go out to the client that gives him seven days to come in with any written information with the aid of counsel he'd like to present.
That is then reviewed by still a third level of officials who has no personal involvement in the decision at the caseworker level.
This supervisory person gets the record and anything submitted by the client, reviews the entire matter and its only after he is satisfied that the person is ineligible that the benefits are cutoff.
Justice Thurgood Marshall: That's your idea of due process?
Mr. John J. Loflin, Jr.: I think that meets due process, yes sir.
Chief Justice Warren E. Burger: Mr. Loflin, I suppose up in Mariposa County where they have a few recipients and few staff members, it would be possible that the man who made the decision to grant the benefit in the first place might be the same man who listened to the recipient in this process you're describing.
Mr. John J. Loflin, Jr.: New York regulation prevents those decisions being all --
Chief Justice Warren E. Burger: I'm transporting Mariposa in New York and I suppose that's not right.
Mr. John J. Loflin, Jr.: I have to admit I'm not as (Voice Overlap) --
Chief Justice Warren E. Burger: Suppose you (Voice Overlap) --
Mr. John J. Loflin, Jr.: -- with Mariposa County as might be.
Chief Justice Warren E. Burger: A small community in New York that would not have a large staff of workers or a large number of recipients, if you have any such a community.
Is it possible then that the man who granted the relief might be the man who was considering its termination?
Mr. John J. Loflin, Jr.: I believe that would not comply with the state regulation in New York (Voice Overlap) --
Chief Justice Warren E. Burger: Under the new regulation?
Mr. John J. Loflin, Jr.: Under the new regulation, that's right, whether it could happen, I can't tell you.
It is not administratively set up that way in the city of New York where of course we do have the highest the volume in the country.
So, we have gone through these three layers of administrative review before any action adverse to the welfare recipient is taken.
If the decision ultimately after the review officer has gone over the entire matter and reached the conclusion, if he decides that benefits are to be terminated, a notice to that effect is sent to the client and a notice also includes a clear statement to the effect that the decision may be reviewed in a fair hearing.
And what I suggested to Mr. Justice Marshall that the entire process has to be looked on in order to see whether or not due process has been observed, I think it starts with the initial conference with the caseworker and does not conclude until after the fair hearing.
Now true --
Justice Potter Stewart: After the fair hearing is an opportunity for judicial review, is there not (Voice Overlap)?
Mr. John J. Loflin, Jr.: Yes sir, under Article 78 of the New York Civil Practice Law and Rules, any decision of a hearing officer that results in a denial of benefits, the person whose benefits denied is considered an aggrieved person and he may sue the state hearing officer and have it -- the entire package, the record of the case reviewed by a State Supreme Court justice.
So, we do have this gap that can occur and Mr. Justice Marshall is entirely right and there's no denying that a person who is in fact destitute can be heard between the period when the review officer cuts off the benefits and the time when in fact we are wrong, the state's fair hearing officer restores those benefits.
Justice Potter Stewart: Is there any way of knowing how long that time is on the average or in the typical situation?
Mr. John J. Loflin, Jr.: Well, there is evidence in the case that it varies tremendously.
New York had fallen behind beginning about in 1967.
I might point out in the first half of 1967, fair hearings were running at the rate of 200 or 300 per month.
In the last half of 1967, they jumped to as high as eleven hundred per month.
Now, this problem has been alleviated somewhat the total number of hearing officers has been increased by 50%.
We had only 8 for the state.
At the beginning of this period we now have 12 and additional staff has been provided so as Mrs. Palmer advised the court, California has responded to the increased case loads so as New York.
I can't tell you that we have completely caught up on our backlog, we haven't but we're making deep inroads into it and we hope to bring the State of New York into compliance with the time table that the Federal Government has proposed.
Justice Potter Stewart: And that's 50 days?
Mr. John J. Loflin, Jr.: Yes sir.
Now I would point out to you that in this case in addition to the constitutional issues which drew the focus of attention in the court below, there is a statutory regulatory scheme which provides a framework with when -- within which the case could also be examined.
Justice Hugo L. Black: Which are you rest in?
Mr. John J. Loflin, Jr.: I will rest on either Your Honor.
I claim that we have granted due process if it's to be measured by constitutional standards.
I also claim here and I believe that the record will show we are in compliance with the HEW regulations on this subject.
Hereto, this was a development during the course of this case; the regulation to which I refer became effective July 1, 1968 well after this cases had started.
But the regulation is set forth in part on page 12 of Solicitor General's brief and it's very brief if I may refer to it, its cited to the HEW handbook, Section 2300 (d) (5) and it states that advanced notice of questions, it has about an individual's eligibility so that a recipient has an opportunity to discuss the situation before receiving formal written notice of reduction in payment or termination of assistance is required.
Justice Potter Stewart: Well, I gather Mr. Loflin that like California, the city also concedes that constitutionally there is some obligation of some form of due process before termination may be made.
Mr. John J. Loflin, Jr.: Yes.
We have not denied that.
I just point this regulatory framework out to afford another basis for the court's examination if you wish.
The court below turned away from that entirely and went to the constitutional issue.
But we do not here claim that a welfare beneficiary whose benefits are about to be terminated is not entitled to some pre-termination procedures -- constitutionally entitled to some pre-termination procedure.
Justice Byron R. White: Do you think that New York's procedure satisfies the federal law?
Mr. John J. Loflin, Jr.: I do sir.
You will note that the --
Justice Byron R. White: I take the New York statute goes as far as, according to the due process, before the termination as the Solicitor General's brief?
Mr. John J. Loflin, Jr.: I believe it goes as far as the Solicitor General's brief says is required.
I would point out to you that annex to the reply brief filed by my opponent is another brief filed in the court below in which the Federal Government took the position explicitly that both subparagraph (a) of the regulation and (b) complied with the federal regulation.
Justice Byron R. White: What is there that New York statute requires (Inaudible)?
Mr. John J. Loflin, Jr.: That comes up under our procedure 68-18, the local procedure adopted to implement the state regulation.
Justice Byron R. White: Under what paragraph?
Mr. John J. Loflin, Jr.: Under paragraph (b).
And that procedure had to obtain state's approval.
In other words we --
Justice Byron R. White: (Inaudible)
Mr. John J. Loflin, Jr.: Yes sir.
The procedure 68-18 appears in the record following pages 147, 148A.
It's annex to an affidavit of the appellate here, the Commissioner of Social Welfare, Jack Goldberg.
I consider those procedures adopted through the local regulation as complimentary to the state regulation.
We couldn't have implemented the state regulation without adopting local procedures and I believe that we are properly entitled to be judged by what we actually did, not by theoretically what we might have done and these procedures of course were before the court below.
They were not adopted after the decisions at that time.
The regulation by the state came out in the spring of 1968, the revised regulation.
It took -- I would say roughly close to a month before the regulation became effective in New York City.
During part of that month, the review officers had to be selected and guidelines had to be developed.
In addition, the procedure that the city of New York intended to follow had to be submitted to the state for its approval.
Justice Potter Stewart: Do you state actual city procedure?
Mr. John J. Loflin, Jr.: Yes sir.
It is the city's procedure which imposes first of all the duty on the case worker to call the client in for a conference and explain to him the reasons why his benefits may be terminated.
I stress the fact, maybe terminated nothing has happen at this point.
The client has called in and told that we have certain information which leads us to believe that you may no longer be eligible.
The client of course has an opportunity to rebut, to explain or to say anything he had liked in response to this information.
Following that conference which is summarized in some detail by the caseworker, all of the information concerning this matter is referred to the unit supervisor.
This is a man next up the ladder above the caseworker.
The unit supervisor reviews the whole matter and that it is only -- if only concurs that the notice contemplated by this paragraph be goes out, still no benefits have been terminated.
The client receives a notice saying that your benefits may be terminated within seven days, unless you request a review.
The reasons for the proposed termination are as follows and then the reasons are explained and it further goes on to say that if you which to have a review, you may submit anything you would like for review by a review officer and you may have the assistance of counsel in submitting anything that you would like.
Now, this submission does not constitute a hearing in the classic sense in our confrontation with witnesses.
But it is the continuation of the process that began with a face to face meeting between the caseworker and the client and it does bring in to play another and a higher official who has no stake in the decision reached by those subordinate officials below.
And it is only after his review that any impact in any monetary sense is felt by the client.
Justice Thurgood Marshall: I noticed in this notice of decision, it says, “If you were to satisfy this decision, you may request a fair hearing in capital in writing or orally.”
Is that word fair hearing declared in the state law?
Mr. John J. Loflin, Jr.: There is state law provisions for fair hearings but it -- the reason that --
Justice Thurgood Marshall: Because if you used that term and does it define what it mean?
Mr. John J. Loflin, Jr.: Yes sir it does.
Justice Thurgood Marshall: Where is that?
I'd like to see just what statutory thing we're talking about.
Mr. John J. Loflin, Jr.: Well, the fair hearing requirement originates in federal law and any state plans submitted to the --
Justice Thurgood Marshall: You mean there's no definition of it in the state law?
Mr. John J. Loflin, Jr.: Yes sir, there is.
I can't cite it to you off hand but --
Justice Thurgood Marshall: Well, what is it in the state law?
Mr. John J. Loflin, Jr.: Alright, that's easier for me.
A state fair hearing is a hearing in the traditional sense.
By that I --
Justice Thurgood Marshall: You're not talking about judgment now, what does the statute make a fair hearing?
Mr. John J. Loflin, Jr.: There is a state hearing officer first of all, not a city official.
These original decisions that I'm talking about to terminate are at the city level.
The hearing officer on a state fair hearing is a state official.
Evidence is introduced although it is administrative rules of evidence that apply and by that I mean it is possible that some hearsay may be introduced as is true in most administrative proceedings.
The client whose benefits may be terminated or restored has a right to examine before the hearing any evidence that the state or the city intends to introduce against him.
In other words, if there are written documents involved, they must be displayed to the recipient or his counsel in advance of the hearing.
Witnesses are examined and a verbatim transcript is made of the proceedings and a writ --
Justice Thurgood Marshall: Does the statute require that?
Mr. John J. Loflin, Jr.: The regulations require that sir.
Justice Thurgood Marshall: He defines that as a part of a fair hearing?
Mr. John J. Loflin, Jr.: That is correct sir.
Justice Thurgood Marshall: But Mr. Loflin --
Mr. John J. Loflin, Jr.: And finally a written decision comes down.
Justice Thurgood Marshall: Isn't there in New York statute that says that you shall have a fair hearing in certain cases?
Mr. John J. Loflin, Jr.: Yes.
Justice Thurgood Marshall: Certain -- isn't there a statute that says just that?
Mr. John J. Loflin, Jr.: Yes sir.
Justice Thurgood Marshall: That's what I think Mr. Justice Black had.
Do you have citations of that statute?
Mr. John J. Loflin, Jr.: I will give it to you subsequently.
I don't have it --
Justice Hugo L. Black: What I want to know is what New York have said as a fair hearing cause I'm not familiar with that term in the constitution and I want to see it in the statute.
Mr. John J. Loflin, Jr.: I have reserved one or two minutes for rebuttal and when I rebut, I will give you the precise citation to the statute and to the regulations that give you the details.
They are substantially as I have outlined them to Your Honor and I will reserve that opportunity if I may for that time.
Chief Justice Warren E. Burger: Mr. Albert.
Argument of Lee A. Albert
Mr. Lee A. Albert: Mr. Chief Justice, may it please the Court.
In discussing the procedures that had been added since this case was or the administrative changes since this case was before the District Court in -- between January and June 1968, it is well, I think to look at briefly the situation, the procedures used for the terminations of the 20 appellees, not each one, individually of course in this very case.
Each of them --
Justice Byron R. White: Are those the ones that you are trying to contest upon?
Mr. Lee A. Albert: Those I think are the situations Mr. Justice White that present the typical issues of a contested termination.
That is to say the typical kind of --
Justice Byron R. White: How about my question, are those the ones that we have to decide on this case?
Mr. Lee A. Albert: Those are certainly the people who still -- who -- but for this lawsuit and the injunction below are faced with the same kinds of termination problems that they already experienced.
Many of them were restored to aid solely by virtue of --
Justice Byron R. White: I mean the change in the New York situation doesn't change anything?
Mr. Lee A. Albert: Mr. Justice White, some of the interveners in this suit were actually terminated under the New York change, that is the Option B procedure the city wishes to reinstate by virtue of this appeal.
Justice Byron R. White: Some of it?
Mr. Lee A. Albert: That's correct Mr. Justice White.
Justice Byron R. White: So which ones are we going to be arguing about, all of them or just some of them?
Mr. Lee A. Albert: I think Mr. Justice White, all of them present the kinds of that the -- and because they continue to receive welfare benefits and therefore are confronted with the same kinds of issues of termination or unlikely to be confronted with such issues very similar to a kind of union employer continuing relationship, one strike being settled doesn't necessarily solve all the legal problems for the future.
I think that the -- we're really confronted with all those cases of the people who still continue to receive benefits who still are involved in this case, work relationship.
The terminations of the appellees, I think can be grouped briefly and to several categories.
It's important to note that all of them had a conference or interview with their caseworker before termination.
Indeed, that interview which is part of -- which is long been required for the periodic recertification of eligibility in New York and most other states, all other states was actually the cause of termination in many of this cases.
For example, appellee John Kelly, a New York peevee terminated because during that interview, they had a dispute with the caseworker about where they should live.
As a result of their disagreement with the caseworker over where they should live that they were terminated.
Two weeks before Angela Velez who has discussed the opinion of Judge Feinberg below, before she was terminated, she had an argument with her caseworker over an extraneous matter, over a special grant and she asked, actually asked the caseworker to leave the home.
Two weeks later, she received the notice of termination informing her I should say, she was terminated for concealment of assets, nothing further.
During a hearing subsequently it was found out that refer to a landlady's report to the caseworker that her husband had returned home.
Justice Potter Stewart: Were this under the -- were this action taken out on the procedures that are now before us?
Mr. Lee A. Albert: Mr. Justice Stewart all the procedures except for -- well, some of them have taken place under all the procedures Mr. Justice Stewart.
Justice Potter Stewart: Well, I'm talking about this (Voice Overlap) --
Mr. Lee A. Albert: These particular ones, there was no Option B.
Justice Potter Stewart: Exactly and that's (Voice Overlap) --
Mr. Lee A. Albert: And that opportunity --
Justice Potter Stewart: (Voice Overlap) my Brother White's question and what's before us now is Option B as part and parcel of a whole procedural process that's been described by counsel for the city, isn't that correct?
Mr. Lee A. Albert: But Mr. Justice Stewart all -- the process that has been described by the city -- the city does not rely on Option B as a particularly important element.
I don't think in that process, they rely on the whole process.
I'm merely trying to establish Mr. Justice Stewart that there was a certainty -- the caseworker interview and the unit supervisor approval, the consultation with the unit supervisor that Mr. Loflin has mentioned long before Option B was added, Option B provides one further step.
Justice Potter Stewart: Yes.
Mr. Lee A. Albert: That one -- that several of the appellees did invoke in this case, for example, one of the appellees Antonio Sotto was terminated for he received a notice informing him failure to attend rehabilitation COC, and I should say Your Honors that that notice meant as much to him at that point as it may mean to you now.
He did not know what rehabilitation COC was.
It turns out upon investigation that the caseworker believed that he was taking drugs and they had a dispute over that and she wanted him to attend some particular rehabilitation center.
Chief Justice Warren E. Burger: Well, wouldn't you think there was a reasonable administrative basis for some ambiguity on that notice so as not to --?
Mr. Lee A. Albert: The basis I think for the ambiguity is the fact that we're dealing with formed notices issued by caseworkers with very, very heavy caseloads and this is to be sure an assembly line type of operation in that regard.
Chief Justice Warren E. Burger: Yes, but he knows that his benefits are being at least questioned and he has already waited to find out what they have in mind by these symbols?
Mr. Lee A. Albert: Well, in fact in his particular case, he unlike most welfare recipients did have an attorney to assist them Mr. Chief Justice and his attorney found out the case unit to find out some information.
That's reflected in the record and his attorney, Mr. Greenberg, has written an affidavit that's in this record.
The information wasn't very helpful.
He, unlike most recipients received a copy of the review decision under this Option B which Judge Feinberg refers to in his opinion below and the review decision by the case supervisor, this neutral official states that Mr. Sotto was terminated because he was a parricide, because he was playing a game.
I'm quoting from that decision and which is also printed in the record Mr. Chief Justice.
As to the facts involved, Mr. Sotto has never yet learned just what this dispute was about nor has his attorney Mr. Greenberg.
Upon intervention in this lawsuit, the city dropped the term “parricide and playing a game” and restart them to the roles.
Chief Justice Warren E. Burger: Well, was his restoration retroactive?
Mr. Lee A. Albert: His restoration probably was retroactive Mr. Chief Justice but I'm not clear on that.
Certainly from July 1, 1968, upon subsequent vindications in the subsequent fair hearing, the payments themselves are retroactive.
Chief Justice Warren E. Burger: Then his complaints have been redressed in that respect?
Mr. Lee A. Albert: His benefits were not terminated for any length of time because he was -- he did intervene in this lawsuit soon afterwards.
I think in terms of your question, I think one -- if one looked at the cases such as -- there are few interveners here.
The harms in this case were minimized for most of the appellees by virtue of this lawsuit.
There were a few however who came into this lawsuit, who came to attorneys, late in the process of termination while they were awaiting the fair hearing as in the case of (Inaudible) and Angela Velez.
In their particular cases, as this record makes clear, they suffered eviction, living in one room with four children in a Sister's overcrowded apartment, living on handouts, attending Harlem Hospital for treatment of dysentery.
Mrs. (Inaudible) in the welfare center while waiting for an emergency grant for food.
The retroactive payments based on the amount of money that she would have received had the case -- had this not been -- had there been deliberation before termination.
Had there been an examination of this decision that she contested from the outset surely cannot in any way be commensurate or in any way repair ameliorate those kinds of indignities, those kinds of harms and of course no one is entitled to damages for those kinds of injuries.
Chief Justice Warren E. Burger: Well, is this still a relevant problem for us?
Mr. Lee A. Albert: A -- it most certainly is.
Chief Justice Warren E. Burger: Under the new regulations, under the change?
Mr. Lee A. Albert: It most certainly is Mr. Chief Justice.
Chief Justice Warren E. Burger: For this particular person?
I thought you said he was reinstated and got retroactive benefits.
Mr. Lee A. Albert: He was vindicated after this procedure was passed in the fair hearing.
He is still or she, I should say and most of these appellees are still receiving welfare benefits and still face the procedures that are to be used in regard to a termination of those benefits.
Indeed some of the termination issues in regard to some of the appellees, he was never even resolved the city just because of this lawsuit finding these people as something different because of this lawsuit dropped the matter of termination.
We think that the -- were the -- they're not in these lawsuits, they are faced with that ever present danger and of course they do represent the class of individuals very similarly situated.
Our legal argument is based essentially on three prepositions.
The first is that the due process guarantees to the Fourteenth Amendment against Government arbitrariness and capriciousness apply to the --
Justice Hugo L. Black: Now did you say that -- because the due process (Inaudible) those words?
Mr. Lee A. Albert: No.
The due process -- the guarantee that no person shall be deprived of life, liberty, or property without due process of law, that guarantee we submit --
Justice Hugo L. Black: That proceeding, doesn't it?
Mr. Lee A. Albert: I'm sorry Mr. Justice Black.
Justice Hugo L. Black: Were that the proceedings required by law?
Mr. Lee A. Albert: Without due process of law, without the proceedings --
Justice Hugo L. Black: (Voice Overlap) proceedings required by law or the proceedings, a majority of this Court might think were arbitrary or unreasonable?
Mr. Lee A. Albert: No, Mr. Justice Black.
We're not relying on notions of reasonableness or arbitrariness --
Justice Hugo L. Black: They are used a number of times?
Mr. Lee A. Albert: With -- we're relying on the well-established obligation in the decisions of this Court.
Justice Hugo L. Black: Are you relying on obligations imposed by the language of the constitution outside of due process for this latitude and area in definition?
Mr. Lee A. Albert: We think that the procedural aspect of due process is not -- does not permit the latitude or leave the justices at bay in the sense that substantive due process may be said to.
We're talking about those procedures which this Court time and time again has deemed --
Justice Hugo L. Black: You mean, notice?
Mr. Lee A. Albert: We -- I mean notice and the elements --
Justice Hugo L. Black: No doubt the constitution uses the word “notice”, doesn't it?
Mr. Lee A. Albert: I think due process, its well accepted Mr. Justice Black but due process refers to a adversary proceeding proceeded by notice.
Justice Hugo L. Black: The well-established thing you're talking about certainly had considerable questioning, come year to year and decade to decade during this century.
Mr. Lee A. Albert: There may be some question as to what context, what it requires in certain context but I think the point here is that it's conceded Mr. Justice Black that the due process guarantees against our government arbitrariness and capriciousness apply to public assistance programs.
That's not really an issue here.
None of the parties --
Justice Byron R. White: Do you mean it's not an issue between the parties?
Mr. Lee A. Albert: Nor is it an issue -- certainly its not an issue in the Government's view also in its memorandum and nor I think properly viewed --
Justice Byron R. White: Which a part of preposition --
Mr. Lee A. Albert: Certainly not Mr. Justice White and that is one of the reasons why we established that preposition de novo --
Justice Byron R. White: (Inaudible)
Mr. Lee A. Albert: I think -- I'm sorry Mr. Justice White.
Justice Byron R. White: What are you going to think in response to this, don't you think in responding to Mr. Justice Black's question, we have to really --
Mr. Lee A. Albert: Say why it does, no question, I do.
And I'd like to briefly address myself to why that concession is well founded.
Justice Hugo L. Black: Are you arguing that it's arbitrary and capricious for the Government to cutoff a gift or gratuity?
Mr. Lee A. Albert: I think one has to make some certain distinctions Mr. Justice Black.
If you're talking about an emergency handout program in a period of disaster or if we're talking about the 19th century pattern of relief, the 19th century distribution of benefits, private or public for which there was very little distinction, I think it's quite different from the kinds of programs we're dealing with here.
Concededly these programs establish a statutory entitlement for all eligible individuals.
Concededly that entitlement cannot be denied or revoked I should say without an administrative finding that the person is no longer eligible.
Concededly, eligibility -- that finding must be supported by evidence.
Concededly where a caseworker to merely terminate a person because I don't like -- because he didn't like the color of his hair for example, that would be arbitrary administrative action under these programs and unconstitutional, that would be a denial of due process.
Justice Hugo L. Black: Well, that's quite a difference between what you are saying there and this law?
Mr. Lee A. Albert: Mr. Justice Black I think it's very important that -- we recognize we're not dealing with the kind of program that you've mentioned regarding the civil war.
Justice Hugo L. Black: I would gather from your -- I would rather -- your argument be hard to repeal of gratuity once you've given it on the ground be to arbitrary and capricious.
Mr. Lee A. Albert: Not at all.
Chief Justice Warren E. Burger: Mr. Albert the --
Mr. Lee A. Albert: I think the question of --
Chief Justice Warren E. Burger: Mr. Albert if you will bear the pending question in mind, we will recess at this time.
Mr. Lee A. Albert: Certainly Mr. Chief Justice.
Chief Justice Warren E. Burger: Before we resume arguments, we will again entertain the motion of Mr. Hill.
Mr. Hill this was in -- Mr. Albert you may resume.
Mr. Lee A. Albert: Mr. Chief Justice, may it please the Court.
We left off before the lunch time, recess on the threshold and fundamental question of whether the due process procedural guarantees apply to public assistance benefits at all.
If one looks to the nature of the factors that this Court has traditionally deemed relevant, the nature of the individual interest, the nature of the Government interest, the burden on the program or proceedings, one finds that all of those factors compel one answer.
The nature of the individual interest is what's examined is in a statutory entitlement of enormous value to the beholders, a statutory entitlement on which the very quality of life depends.
This record makes very clear the consequences of erroneous withdrawal of that entitlement.
It is --
Justice Byron R. White: What's the closest case in this Court for that preposition?
Mr. Lee A. Albert: I think that factor of gravity of harm Mr. Justice White is reflected in for example the deportation of alien cases in which the agency is held to the highest degree of procedural safeguards before an alien may be deported though he has no vested right to remain here.
But because as this Court once said, deportation may deprive one of all that makes life worth living.
Justice Byron R. White: What about Fleming and Nestor, is it --
Mr. Lee A. Albert: Fleming and Nestor refers to -- the question in Fleming -- Fleming and Nestor is support for our proposition.
It certainly said that the statutory entitlement under OASDI is within the due process guarantees against arbitrariness and capriciousness.
It only went on to say an issue not involved here, whether it's vested in all circumstances or other circumstances where it's not vested.
We are not arguing with the substantive grounds but they're relevant to the procedures.
We're not arguing with the substantive grounds of revocation whatsoever nor are we arguing with Congress' power or the state's power to answer those grounds or indeed -- to use an extreme example to do away with these programs.
Justice Potter Stewart: Of course --
Mr. Lee A. Albert: Programs exist.
Justice Potter Stewart: Excuse me, you finish.
Mr. Lee A. Albert: I'm sorry Mr. Justice Stewart.
Justice Potter Stewart: It just occurred to me that the deportation process is final and they're irrevocable so far as the administrative process goes, whereas, this is not, this is subject to a so-called fair hearing review in which as I understand it, you concede all of the due process qualities that you're asserting are necessary are in fact accorded.
I think it's very important in looking to that to recognize that the subsequent fair hearing in the light of these circumstances is largely an illusory and certainly an ineffective remedy.
I think this is one of those situations not dissimilar to Sniadach in this respect that the delay in relief, the operative, putting the decision into operation before an opportunity to contest it all but precludes the opportunity to contest.
If one looks to the fair hearing figures, over a course of years on termination, they're not reflected in the 6,000 hearings that were talked about by California.
They're not reflected in the many more hearings talked about by New York.
They're talked -- they're reflected in figures amounting in many states to zero out of thousands and thousands of terminations.
In New York they amount to the subsequent fair hearing approximately 50 a month from the city of New York out of 10,000 terminations and about a lesser number from upstate.
Justice Potter Stewart: Of course that could lead to quite a different inference also, couldn't it?
It could lead to an inference that people are terminated with the exception of only about 50 a month only when its very clear that they should be terminated and if they're -- as only a few as 50 a month where there's any real doubt.
Mr. Lee A. Albert: It certainly could Mr. Justice Stewart except for the -- what we do, except for the fact that we have figures in this record and no one really argues about them at the rate of administrative error in denying or terminating aid is enormous.
The rate reflect on the face of case records.
This only is the caseworker's version of why she terminated it which is meant to obviously reflect a proper version to sustain the decision so to speak.
The national rate there is between 6% and 7% on the face of the case record of erroneous terminations.
The figures upon the reversals in those hearings and in particular on the prior hearings, range from at least 25% to up to 51% in New York City today.
It can't be said that the contested decision is to terminate.
We agree that people come on welfare in periods of temporary crisis and they go off welfare.
And usually most terminations are by agreement with caseworker.
Those we have no concern with.
Our concern is with those in which the recipient disagrees with the caseworker and wishes to contest that caseworker's decision.
In that narrow group of cases, we find that the times in which the recipient as opposed to the caseworker is correct is enormous, the rate of error is just startling, it's singular I think in the Government benefit program.
Nonetheless, these decisions are not vindicated in subsequent fair hearings for a variety of reasons not the least of which is that the overwhelming impact, the interim deprivations and equally important the fact that the timing of the hearing is wholly in the hands of the Government is not without significance here.
No one really argues that the HEW 60 day rule now enforce for several years is anything but theoretical.
The period reflected in this case and still reflected in New York range from anything from 4 months to as much as 8 months.
We're not using used examples.
But for 4 months to 8 months or even 60 days Mr. Justice Stewart to go without the very subsistence, food, for clothing, shelter and money for -- I'm sorry Your Honors, money for food, clothing and shelter does not leave one in any positions -- engaged in a legal wrangle with the welfare department.
We don't know what happens to those people.
The mystery though is by no means reassuring.
Justice Thurgood Marshall: What about the voluntary legal aid program in New York?
Mr. Lee A. Albert: Mr. Justice Marshall, there's nothing one can do about the systematic sustained delay in the fair hearing process.
Indeed the attempts to retain civil relief in the New York Courts is met with the answer that this is directory.
Justice Thurgood Marshall: (Voice Overlap) with your point that they didn't have money enough to process their appeal, that was all I was (Voice Overlap) --
Mr. Lee A. Albert: I'm sorry Mr. Justice Marshall.
I didn't mean to imply they didn't have money to process their appeal.
There isn't a cost in processing the appeal.
They didn't have the wherewithal, they didn't have the weight, they were concerned with the problems of daily living and survival, the eviction and the like which accounts for this kind of low rate.
It certainly isn't in the timing of the hearing, the fact or significance in the timing, it is not the practicalities of the situation, that is the kind of hearing involved, the number of issues or witnesses that account for a delay.
As we well know, welfare termination hearings unlike most administrative proceedings of this court deals with -- involved one or two issues at most one outside source of information or to take utmost a half to 1 one hour.
Justice Hugo L. Black: What are those one or two issues?
Mr. Lee A. Albert: How -- I'm sorry Mr. Justice Black.
Justice Hugo L. Black: I said, what are those one and two issues?
Mr. Lee A. Albert: Those one and two issues fall into several categories.
One is, the landlady said that her husband has returned home.
The Board of Education says she's working for her now.
Just to use the instant cases, which aren't too typical or the caseworker says you haven't co-operated properly.
You haven't permitted to see this.
You haven't cooperated in bringing your missing husband to heal.
And these are all evaluative judgments that the – under very vague standards which arise from this very personal relationship and very singular to welfare, I should say, between a caseworker and a recipient.
That relationship being imbued with notions of warship treatment, rehabilitation as well as the pleasing function of eligibility.
Those are the typical issues in contested terminations.
And we --
Justice Hugo L. Black: What must be the financial condition of the person in New York to be eligible for this list?
Mr. Lee A. Albert: One cannot --
Justice Hugo L. Black: And how much does he get?
Mr. Lee A. Albert: He gets an average grant Mr. Justice Black for approximately $60 to 65$ a month, somewhat less for children.
And that is to take care of all -- plus rent, I'm sorry, plus rent.
That has taken all his non-rent needs, rent is paid within certain limits as it's actually incur and nothing more.
There's no question that the level of aid is penurious an to an extreme.
The resource policy requiring you to yield resources when you're found eligible and to continue to yield resources to the welfare department afterwards ensures that you cannot budget for any contingency including administrative error.
It is not though the practicalities that protract the hearing process, that's revealed in the fact that in those states in which prior hearings are now afforded.
The pattern of timing is from one to two weeks and that's really what we're talking about when we looked to the so-called cost of the extra costs or the burdens on the system which has certainly been a relevant -- is a relevant factor.
We do not argue the constitution requires the impractical or the impossible.
There is neither of that here.
Justice William J. Brennan: Did you say Mr. Albert that there are some states that provide trial type hearings before termination?
Mr. Lee A. Albert: I certainly did Mr. Justice Brennan.
Justice William J. Brennan: How many are there?
Mr. Lee A. Albert: There are approximately four or five pursuant to court orders who are agreements, stipulations during the course of (Voice Overlap) --
Justice William J. Brennan: You mean all states?
Mr. Lee A. Albert: New York State is the best example of that.
In New York State, New York City in particular, it is the largest welfare department in the country including any state welfare department I should add.
But the largest number of recipients presumably relatively more sophisticated recipients, relatively greater access to legal assistance to -- so it provides a good test case for the notion of what kind of burden this will incur.
The burden that incurs, one or evidence in the fact that New York State which shares half of these costs is not here today.
The burden that incurs is more better revealed in the fact that out of 60,000 terminations and of course the five months in New York City, there were 1,000 prior hearings requested out of which 51% were the recipient prevailed.
Even under the Government's test in its memorandum of whether more eligible than ineligible people request these hearings, we would prevail in this case.
The city -- in comparing also those additional costs for the one or two weeks and after all the only -- we believe permissible additional costs that can be considered here are those that are ultimately one or two week payments to people who are ultimately found ineligible.
In comparing that, one must also look to the kind of cumbersome procedure that New York City seems to offer.
We would say it's totally an effective one, the written review type thing and all these supervisors talking to each other.
But that certainly must cost and take time too.
The entire operation in New York City with 10,000 closings a month entails six review officers.
Now, I will grant you compared to the state fair hearing process which only has ten altogether for the entire state, that's quite a few.
But in terms of actual monetary burdens on the system, six review officers, we submit in a welfare department with a budget of the City of New York such as it has, is de minimis, its just not a factor that really can be accounted for.
We also would ask this Court to recognize in looking at the burdens or non-burdens that there can be no question that the effect of the present procedure of postponing and seriously postponing the fair hearing is to deter and discourage its use to the extent that prior hearings will be used more as a result of removing this deterrence.
We don't think those are appropriate costs for the simple reason we think if any policy of deliberately forestalling a constitutional opportunity to be heard in order to discourage its use regardless of the merits of the claims, we think would be impermissible, the right to be heard and must be more than a theoretical or a nominal one.
Justice Byron R. White: Well, I take it that the content of the hearing you urge goes beyond what the Federal Government thinks is warranted.
Mr. Lee A. Albert: The Federal Government isn't talking about a hearing Mr. Justice White when it talks about the advanced notice of questions.
It talks about a caseworker which has been done for a long time, it's really nothing new, tells a recipient -- involves the recipient in the re-determination process.
Justice Byron R. White: I take it though that -- you would also --
Mr. Lee A. Albert: We're talk --
Justice Byron R. White: You would also go beyond what the District Court said was required (Voice Overlap)?
Mr. Lee A. Albert: Absolutely not Mr. Justice White.
We're talking about the absolute rudiments of an adversary proceeding where the recipient requests it.
By that we mean, only that the caseworker presents the case to a relatively uninvolved official, the recipient hears the case, after all that's the first opportunity the recipient has to learn of the cases at this hearing, those cryptic notices will not reveal the case.
Has an opportunity to hear the evidence and question the caseworker of course and those are facts about the recipient, functionally, those are facts very intimately about that particular person and obviously our -- the assumption of our system is that that person is in the best position to refute them --
Justice Byron R. White: Well, then what if the -- what if there's a conflict on the evidence?
Mr. Lee A. Albert: Where there is -- where the termination, which is not all the cases Mr. Justice White rest entirely on third party information, the landlady said “blank.”
Justice Byron R. White: Or on part, yeah.
Mr. Lee A. Albert: Or in part, well, alright, or in part and not substantiated by other documentary evidence that say to third parties.
Yes, in that case where the credibility of those witnesses is called into question, we say those witnesses have to be there so that the recipient can question and there is no way to rebut anonymous accusations.
Justice Byron R. White: I didn't think the District Court would go that far in all cases.
Mr. Lee A. Albert: In cases it said, “Where the veracity -- where the evidence depends on the veracity or credibility of third parties.”
Justice Byron R. White: Or it's critical to the case?
Mr. Lee A. Albert: And critical to the case, yes.
Mr. Justice White, we're not asking to spell out a code of welfare procedure.
Justice Byron R. White: Well, what about the situation where there are no factual -- or just a questioning of the law or a question of the (Voice Overlap) or something like that?
Mr. Lee A. Albert: This -- well, this issue really is not involved in this case there's not one of the appellees who raisethe question of law.
We are not arguing now, lets be clear, we are not -- to use the Government's example that -- we're not arguing that where there's across the board reduction by the legislature or the regulation, in those -- and the validity of that reduction is being challenged as a legal matter.
In those situations you're entitled to prior hearings.
We agree that questions of statutory validity or constitutional validity are much more appropriate for the judicial process than for administrative hearings.
Administrative agencies don't have the power to resolve those questions.
We're not talking about that.
The application of regulations as in the case of Mrs. Guzman for example, we are including of course, that's where the caseworkers states that she thinks there's a policy of this kind of cooperation, the recipient states that there's no such policy, certainly the policy is based on whether there are justifiable reasons not to participate in this lawsuit.
The department recognizes that and that kind of a situation, that's an application of a regulation in the evaluative regulation at that.
We submit that that requires the hearing but not --
Justice Byron R. White: I take it that if a -- if you've got the kind of a hearing prior to termination, prior to the termination that you want, that would be the end of the matter as far as the -- that state's due process.
Mr. Lee A. Albert: Certainly as far as the Due Process Clause in the constitution is concerned, we are not asking for two hearings, we are not asking for appeals, we don't care if the hearing examiner salary is paid by the city or the state.
We think there are different view points on that as indicated in the state commissioner's view point and HEW's -- perhaps HEW view point.
Those are considerations that really have little to do with the Due Process Clause.
We're only asking for one constitutionally adequate opportunity to be heard at a meaningful time, at a time when recipients can use that at a time when the remedy can be effective, that is to say one when it can provide relief against the kinds of harms that are reflected in this record.
We think that one thing that has been left out that should be stressed here is that a good part of the reason for due process procedural guarantees is because Government arbitrariness regardless of the context is still Government arbitrariness and therefore unconstitutional.
We think that the dangers of arbitrariness in this system are about as great as any administrative program one can think of.
Justice Byron R. White: Well, would you say that if you prevail a fortiori, the same would apply to city employees?
Mr. Lee A. Albert: Absolutely not, first --
Justice Byron R. White: Why not?
Mr. Lee A. Albert: Well, for factors one observed in Cafeteria Workers against McElroy, the Government engaged in a managerial function as employer to the discretionary kinds of decisions which are slightly different and three, the question of a suspension of an employee may well fall into one of those extraordinary situations laid out by this Court where for example, the employee represents some immediate threat to the service or the department.
That is not the case here.
Justice Byron R. White: (Voice Overlap) -- I asked you about the ordinary case where the ordinary employee know unusual circumstances except someone just wants to fire you.
Would you say there is some due process requirements before stopping the salary or the wage?
Mr. Lee A. Albert: There might be at least the requirement of -- as indeed, there's the practice in the federal civil service --
Justice Byron R. White: But if you prevail that would be more likely that the (Voice Overlap) --
Mr. Lee A. Albert: I don't -- but I think an important -- I agree with you Mr. Justice White.
But I think it's important to recognize that we are not litigating a variety of Government benefit programs or Government employment which involves factors that are very different than the ones here.
There are many benefit programs that provide for benefits to continue after eligibility is ceased, social security, OASDI and disability.
The one area where there might be dispute is one of those programs, civil service mentions another.
Chief Justice Warren E. Burger: I think that is going beyond the response, unless there are other questions.
Mr. Lee A. Albert: I'm sorry.
Justice John M. Harlan: I'd like to ask one question.
Chief Justice Warren E. Burger: Yes, by all means.
Justice John M. Harlan: I saw on the papers that had been filed, a reference to a federal regulation that require in relation to DC, for example, a relief, a continuance of benefit payments, even though they were terminated under pre-occurrence stage until the final hearing, post terminations, is that right?
Mr. Lee A. Albert: It's correct Mr. Justice Harlan.
That was promulgated a year ago by HEW.
Justice John M. Harlan: What bearing does that have on the --
Mr. Lee A. Albert: Ithink it verifies that the fair hearing requirement of the Federal Act which after all does import notions of due process into it cannot be truly effective unless the hearing is prior.
And that's what HEW said when it promulgated the regulation.
It has been postponed Mr. Justice Harlan till next July over opposition, over a variety of oppositions.
Some like New York which prefers the local agency hearings.
Some states just don't like federal encouragence, additional procedural impositions under HEW's power.
We think the relevance is that it represents the judgment of the administrative agency charged knowing something about these matters that that is required and that still current federal policy although not presently not – it's effective data is postponed.
It's still part of the federal regulations as is the federal matching formulas to encourage states to continue aid.
Justice William J. Brennan: Was that the be a requirement Mr. Albert?
Mr. Lee A. Albert: It's still supposed to be a requirement of that Mr. Justice Brennan.
Justice William J. Brennan: That is when it goes to the fact that --
Mr. Lee A. Albert: If it -- if and when it goes into effect, it will be a coercive requirement.
Justice William J. Brennan: Then what -- if it were in effect now, what effect would it have in this cases?
Mr. Lee A. Albert: It would have the effect in the AFDC recipients here providing them with relief they want as interpreted by the Government in its brief.
Justice William J. Brennan: In other words, say it's going to be obliged by the federal regulation not to terminate until what, until when?
Mr. Lee A. Albert: Until the actual subsequent statutory hearing before the state agency.
Justice William J. Brennan: So that for a fair hearing has been (Voice Overlap) --
Mr. Lee A. Albert: That's correct.
Justice Byron R. White: What's the situation now?
Mr. Lee A. Albert: The situation now is that the regulation is not effective.
The states must not -- it's not coercive until July 1, 19 --
Justice Byron R. White: Until the regulation (Voice Overlap) effective, what's the situation as far as federal matching money is --?
Mr. Lee A. Albert: The situation as far as federal matching money is concerned --
Justice Byron R. White: (Voice Overlap) the choice, the state can do it either way?
Mr. Lee A. Albert: It's both, that the state can do it either way but it's soon to be stated quite under to the in that -- the matching formula provides for continuation of payments for federal funds for continuation.
Justice Byron R. White: Up to the case hearing?
Mr. Lee A. Albert: Up to the fair hearing, regardless when a fair hearing is held by the way.
Regardless of the HEW time limits also the matching formulas does provide 90 days for the local agency to investigate, decide and implement a decision of ineligibility.
90 days is well -- it -- within those 90 days, the local hearing, the two week hearing we talk of here.
Justice Potter Stewart: Mr. Albert, you said that HEW regulation, its effective date has been postponed.
I take it HEW could rescind tomorrow, couldn't they?
Mr. Lee A. Albert: It most certainly couldn't (Voice Overlap) --
Justice William J. Brennan: Was that promulgated by the last administration?
Mr. Lee A. Albert: It was Mr. Justice Brennan.
Although it was promulgated actually in final form in January 1969, during the transition, I think fair to say with concurrence of both administrations but the postponement is of this administration.
Justice John M. Harlan: Alright, that regulation, there's no offense (Inaudible)
Mr. Lee A. Albert: That is correct Mr. Justice Harlan.
It would not resolve the issue in the home relief program.
Chief Justice Warren E. Burger: Thank you Mr. Albert.
How much time does Mr. Loflin have?
Unknown Speaker: About 5.
Rebuttal of John J. Loflin, Jr.
Mr. John J. Loflin, Jr.: If the Court please.
I ask -- particularly believe that Mr. Justice Black to check the citation.
You had asked me sir where we could find the regulations that would describe the rights afforded, those who appear in a state fair hearing.
It is in our record, following page 160.
And I particularly refer to you -- to Section 84 of the state regulations and more particularly beginning on page 2, it describes the entire procedure from the time a request was made.
Justice Hugo L. Black: What page was that?
Mr. John J. Loflin, Jr.: It follows page 160 of the record.
Immediately following that page is a resolution of the state board of social welfare which goes for two pages and then begins Regulation Number 84.2 and that entire regulation deals with the procedure under the state fair hearings.
And you will find among other things, there is a notice of the hearing which gives all the details, you would need to note to go the proper place and tell you who you're going to appear before and advice you of the right of each party to be represented to testify, produce witnesses, to present documentary evidence and to examine opposing witnesses and evidence.
84.9 gives you the right to examine the other sides evidence in advance of the hearing.
It points out that the hearing is to be conducted by any impartial hearing officer.
It goes on to detail the burden of the hearing officer to render a written opinion, what the content shall be that the decision must be sent to the client and that he be advised upon recede of the decision of his right to judicial review under New York law.
Justice Hugo L. Black: Is there anything in there that proscribes exactly when the hearings have taken place?
Mr. John J. Loflin, Jr.: Well, under federal regulations, they're supposed to take place and be completed within 60 days.
This is the 60 day period that has been referred to previously in the discussion this morning.
Justice Hugo L. Black: That is for termination?
Mr. John J. Loflin, Jr.: Yes sir.
Unknown Speaker: Justice Marshall?
Mr. John J. Loflin, Jr.: Now.
Justice Potter Stewart: Does the state law with respect to home relief in other general assistance program as the state law alone provide any time limitation?
(Voice Overlap) --
Mr. John J. Loflin, Jr.: I don't of any.
The pattern would not be much different under the home relief cases under any of the others.
Now I would refer if I may to the section of my main brief on pages 14 and 15.
Our procedures have been sharply criticized here and it has been pointed out by my adversary that under paragraph (a) which is his preferred procedure, a number of reversals of caseworker decisions have occurred.
We had a brief period, just a few months roughly from June to November of 1968 during which the City of New York operated under the provisions subparagraph (b) in its local procedure, 6818.
During that period, approximately 44% of the decisions to terminate were reversed as a result of our own procedures.
I submit to the Court that our procedures were working and during that same period of time, as is true now, some of our cases then went on to the fair hearing stage.
During those same months, the reversals on termination cases after fair hearings did not exceed three cases per month and in one month, September 1968, there were no reversals.
I think this is a demonstration that goes beyond the face of the regulations itself that the procedure is designed to be fair.
It is designed to weed out error and it works.
This Court has on other occasions and in other contexts molded constitutional requirements appropriate to the facts.
Due process has been described as a flexible, not a fixed concept.
It might also be noted that under the Fourth Amendment, in the Kamara and See cases where there was a question of the burden of proof on a locality before a warrant should be issued.
It was found by this Court that the burden of proof need not be quite as high as in a traditional criminal warrant search and seizure.
There is room for innovation at the local level, in state and local governments and I feel that our innovation meets the standards that this Court has indicated or required for due process.
Chief Justice Warren E. Burger: Thank you Mr. Loflin.
Unless there are any other questions.
The case is submitted.