WYMAN v. ROTHSTEIN
Term:
- 1960-1969
Facts of the Case
None
Question
None
Argument
Wyman v. Rothstein - Oral ArgumentWyman v. Rothstein - Oral Argument, Part 1Wyman v. Rothstein - Oral Argument, Part 2 Conclusion
Decision: 5 votes for Wyman, 2 vote(s) against
Legal provision:
Legal provision:
None
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Transcript:
Argument of Peter L. Strauss
Chief Justice Warren E. Burger: We will resume arguments in Number 896 Wyman against Rothstein.
Mr. Peter L. Strauss: Mr. Chief Justice --
Chief Justice Warren E. Burger: Mr. Strauss, you may proceed.
Mr. Peter L. Strauss: -- may it please the Court.
Yesterday, I believe I was asked at the close of the session about remand, ought there to be a remand, ought this Court finally to pass on the statutory issue here.
I think I should say, I think there would be a substantial point in remanding it, there’s no need to pass on the statutory issue finally.
And this is a preliminary injunction.
All that’s necessary is that the Court be convinced that the appellees probably will succeed upon their cause of action in the court below.
And as I was starting to say, the State of New York in this most recently enacted statute, of which I believe the Court has copies, has made some policy judgments which I think go to the heart of some of the doubts.
Unknown Speaker: [Inaudible]
Mr. Peter L. Strauss: Sure.
Unknown Speaker: If we were the remand [Inaudible]
Mr. Peter L. Strauss: No, I should think not.
To affirm the preliminary injunction, but on the basis that appellees had shown that they probably would succeed that there was no abuse of discretion on the part of the --
Chief Justice Warren E. Burger: Succeed on the constitutional issue or on the statute?
Mr. Peter L. Strauss: On the statute, I think this Court can pass on that issue here.
It remarked with some strength in footnote in the Dandridge case regarding the right of appellees to put forward any ground that would support the judgment which they received below.
It remarked with some strength in Rosado, that statutory issue should be reached before constitutional issues and I think on those basis that this Court would have no difficulty reaching the statutory issue and making the judgment on the basis of the facts which New York has I think conceded.
Unknown Speaker: [Inaudible]
Mr. Peter L. Strauss: I think that was left open in Rosado.
I think the situation in this Court in Rosado however was that the petitioners there had relief before this Court.
Here petitioners come into this Court, relief having been granted.
We take the position that that relief is no more than an order of compliance with the federal standard which in our view New York is in any event obligated to comply.
We believe that petitioners have made the showing, a sufficient showing that New York is out of compliance with that standard to justify such an order.
It leaves free to New York the choice which this Court said New York must have in Rosado, that is the choice of withdrawing entirely from the federal program.
And then the point I wanted to make them the basis of the statute is that New York has in fact made that choice.
In the statute the legislature said and I’m quoting at line nine of the first page, if you have it there, “The legislature hereby declares its intent to make provision for the state to meet all necessary federal requirements under the Social Security Act.
And again at line three, “It is the intent of the legislature that the Department of Social Services shall determine and establish the standards of need for public assistance in this state in conformity with federal requirements.”
And again, within the adopted amended Section 131 (a) itself on page 4 at line twelve, “If federal requirements make it necessary to adjust any schedule of grants and allowances or part thereof, the department shall make such adjustments.”
So that I think New York’s judgment in this case is entirely clear and as we set out in the rather long footnote of the end of our amicus brief, is the judgment in which all states of the union have essentially concurred.
And there was also the question yesterday and I think this goes back to what I was trying to say during the short time I had then, “Why was the Government had put as part of its question presented, whether the New York State plan improperly favors residents of New York City over residents of other areas of the state,” and this goes I think to the heart of the issue.
The impropriety is not in itself in the payment of more money in New York City than New York State, but as I was trying to state yesterday in considering that residents of New York State need services, need goods, need items which are not under any circumstances made available to residents of any other part of the state even though their need for those items might equally be made the same.
And it seems to us that this is directly inconsistent with the statute, with the provision of the statute which in both cases, Section 602 (a) and Section 1382 (a) provides that a state plan for aid and services must provide that it shall be in effect in all political subdivisions of the state and if administered by the subdivisions must be mandatory upon them.
And it has been since the beginning of the act to the departments understanding and interpretation that that means that you cannot say within a state the people in part of the state are entitled to goods and services, I’m not talking about amounts of money at this point, entitled the goods and services to accounting for those goods and services which people in another part of the state simply have no access too.
Justice Potter Stewart: I don’t quite understand ultimately what it is that you submit that the federal statute requires in the way of uniformity.
I gather you -- the claim as that it requires a -- the same -- that the same criteria they used in establishing the standard of need throughout the states, is that it?
Mr. Peter L. Strauss: Yes, I think that’s right Mr. Justice Stewart.
In --
Justice Potter Stewart: But in New York City, for example there are subways, that’s the way people get back and forth and every -- anybody, most people who live uptown or work downtown, live in Harlem, work in midtown have to use those subways and as in a little town up right Alexandria Bay, you walk.
I don’t see how this can be worked out uniformly because there is a need for a service in New York City that does not exist in Redwood or Alexandria Bay.
Mr. Peter L. Strauss: Well, I think it’s correct that it doesn’t exist in Redwood or Alexandria Bay, but I don’t think it can be said on the basis of this record that that need doesn’t exist in Nassau County or in Westchester County which are crowded, congested areas, where necessary services and jobs may also --
Justice Potter Stewart: I think New York City is the only city in the state that has a subway system and where that the people have to use it?
Mr. Peter L. Strauss: Well, suppose it comes down to how particular judgment you were to make.
As I understand the New York standard of need, the list of basic needs which New York State recognizes claims to recognize in its standard of need doesn’t include any allowance for transportation, that is at page 47 of the appendix, food, clothing, personal incidentals, household supplies, school expenses, utilities, laundries and sales taxes.
Now, it is certainly our position that New York State could if it felt it was necessary to the residents of that state make provision for transportation expenses to take your example.
And it could do so either on a basic need basis, or on a special need basis, I think the Court is familiar with that difference from Rosado.
If it does on a basic needs basis, that means that the cost is to be figured in to the flat ground for every resident of the state.
In figuring that cost, the state has the option of doing it on an average basis or doing it on a local regional basis, and if they did it on a local regional basis, I would certainly agree that the amount for New York City would quite possibly be higher than the amount for other parts of the state.
From the evidence of the record it might also be lower than let’s say Nassau County.
Chief Justice Warren E. Burger: Then your argument really comes down to the fact that there’s been a mistaken judgment here, a legislative judgment any/or an administrative misjudgment?
Mr. Peter L. Strauss: No, it’s more than that Mr. Chief Justice.
We are talking here not about or at least I am talking here, not about the Equal Protection Clause with the judgments of rationality which this -- to which this Court referred in Dandridge, but about federal standards.
And the federal standard I’m talking about is the requirement that in deciding what it is its public assistance beneficiaries required, the state must reach this decision on a uniform, statewide basis.
It may cost it on a local basis, but the legislature cannot make the judgment and it is not simply a disagreement of judgment, it’s a question of consistency.
The legislature may not make the judgment.
The people in New York City are conclusively presumed to need transportation and people outside New York City are conclusively presumed not to need transportation.
Justice John M. Harlan: I suppose under your theory of remand, we go no further [Inaudible] basis to probability of success in this case then go back to District Court and the District Court would be free to reject to which the HEW [Inaudible]
Mr. Peter L. Strauss: I would suppose all issues would be open for trial.
Justice John M. Harlan: [Inaudible]
Mr. Peter L. Strauss: That’s right.
We are only showing here probability of success.
Justice John M. Harlan: But the fact is that we don’t have to accept that this level, the HEW recommendations?
Mr. Peter L. Strauss: No, you need only --
Justice John M. Harlan: All we have to say is that the temporary injunction has got a sufficient basis, probability of success justify it’s continuance and then send the case back to the District Court to sort out the problem?
Mr. Peter L. Strauss: That’s right.
If I can go back for a moment because appellants raise this issue, they talk about the California differential and they talk about the Maryland differential, how are those different from the situation in this case.
There are three situations in which HEW does recognize cost variances.
They’re all provided for in these regulations which begin at 34 Federal Register 1394 and which we cite in our brief.
And the first of them is the California situation in which the state establishes a standard of need on a statewide basis, but is unable to pay the total amount of that standard applies a ratable reduction or it applies a maximum, so that there’s a gap between need on the one hand and actual payments on the other.
In that situation, any local subdivision may fill the gap and that’s what some of the California subdivisions do.
They may make payments between the level of state payments and the level of need as determined by the state under its uniform standard, and those payments will not be counted as income of the recipient and therefore do go to supplement the program.
Now, of course those payments aren’t subject to federal matching, the local subdivisions receive no funds for the federal -- from the Federal Government for that.
The second situation is a situation in which New York City, let us say determined that its residents needed transportation and there was no provision in the New York State standard of need for transportation as there is now, New York City could then provide those services which weren’t provided for in the state plan.
And again there would be no conformity issue, and there would no reduction of payments but again New York City’s payments for transportation would be not matched by federal payments, there would be no federal funds involved in that.
And then the third situation is the one under which New York State seeks to justify its payments here that there maybe differences in payments where those differences are justified by differences in costs, but before one can get to the question of differences in costs and this again is the essential point here, there must be a uniform standard of need and that is what we think is lacking here.
Justice Potter Stewart: Well what is the -- which system has been followed in Maryland and Dandridge against Williams.
Although [Voice Overlap] I remember had a maximum of 250 months, and the rest of state 240?
Mr. Peter L. Strauss: Maryland has not been -- I should say that Maryland hasn’t been called on to justify this by HEW and what I’m saying is no more than a belief of the officials and the department as to what that is about, but the Maryland’s sums includes sums for housing.
The maximum is in all inclusive maximum including housing expenses, and our belief is that that difference reflects a difference in the cost of urban housing.
Justice Potter Stewart: Are staff discussions still going on in this case between the staff of HEW and the appropriate authorities in New York State?
Mr. Peter L. Strauss: My understanding is that New York has not responded to the letter of November.
Justice Potter Stewart: Well, that doesn’t answer my question.
You say that in your brief, but then you say staff discussions have not yielded at any acceptable showing to support the difference and that was your brief on file earlier this month which implies the staff discussions have taken place, are they still going on?
Mr. Peter L. Strauss: I couldn’t -- I don’t believe people are meeting today.
I think it’s at the stage of a decision in the regional office, whether to bring a formal conformity proceeding or not, but more than that I’m afraid I simply don’t know.
Justice Byron R. White: Mr. Strauss, well although you read the items that went into New York standard of need -- now those items are standard statewide?
Mr. Peter L. Strauss: Yes, and all the evidence is that the cost to those items is standard statewide.
Justice Byron R. White: And you say that the standard is -- insofar as the standard is described by those items, that is the same statewide?
Mr. Peter L. Strauss: That’s right.
Justice Byron R. White: And your intention is that New York has not substantiated the difference in cost for those items as between the different parts of the state?
Mr. Peter L. Strauss: Well, I --
Justice Byron R. White: That the legislature may not conclusively presume that are different like the --
Mr. Peter L. Strauss: No, I think New York is trying to justify that difference on a different basis.
It’s not saying that those items cost more in New York City.
Justice Byron R. White: So what is the different basis --
Mr. Peter L. Strauss: As I understand their basis, they are saying in addition to those items, New York City residents require money to pay for security locks, and New York City residents require money to pay for transportation.
Justice Byron R. White: You mean within those broad categories making up the standards, you need like household items?
Mr. Peter L. Strauss: Well, I think --
Justice Byron R. White: They must be fitting them in somewhere?
Mr. Peter L. Strauss: It’s a household supplies, I don’t think in the same sense that furniture wouldn’t come within household supplies or personal incidentals, I don’t believe that under the ordinary circumstances hardware would, I maybe wrong in that. These -- as I understand this list, it doesn’t provide for durables with the exception of --
Justice Byron R. White: Well you’re saying -- your claim is not that the legislature has made a judge -- an unacceptable judgment about cost of various items but if -- but that they want to pay for items for New York City residence, if they refuse to pay for elsewhere?
Mr. Peter L. Strauss: That’s right, museums, cultural activities and so forth.
Well, if I may just say in conclusion in Rosado, this Court put New York under an obligation fully and realistically to reassess the recurring needs of its welfare recipients in this case, the issue is whether the state must not do so on a uniform statewide basis, and we believe it must.
Thank you.
Chief Justice Warren E. Burger: Thank you Mr. Strauss.
Mr. Weinberg you have 13 minutes left.
Argument of Philip Weinberg
Mr. Philip Weinberg: Thank you Your Honor.
May it please the Court.
I think the short answer to Mr. Strauss’ argument about albeit the District Court started of on the wrong foot, why don’t we simply take it the other way and affirm the injunction anyway because they’re probably right about the statutory ground as well.
The short answer to that is that the sweeping injunctions that were granted below aren’t supported by the statutory ground.
And this Court’s decision in Rosado makes that clear because what the Court did below was issue an injunction against enforcement of the statute at all unless it were corrected and objectives -- what they thought were objective standards were imposed, which would have been a valid injunction under the Equal Protection Clause assuming a violation of that clause had been shown.
The language is, other -- they’re enjoined from enforcing this statute at all other than according to objective, non-discriminatory standards based upon the cost of the needs of such recipients.
Now, a statutory nonconformity as in Rosado doesn’t support any such injunction, and indeed this Court, Rosado made that clear.
The most that could be done there would be a remand to the District Court to what -- assuming that the probabilities were that the HEW is right and we were wrong about the statutory argument, the most that could be done would be to remand the case of District Court for a much more narrow injunction such as the one this Court discussed in Rosado.
Now, over and above that when we --
Justice Byron R. White: Because the District Court has never fashioned an injunction -- preliminary injunction based on the possible statutory validity?
Mr. Philip Weinberg: Precisely.
Justice Byron R. White: Is that your point?
Mr. Philip Weinberg: Yes, they started off on the wrong foot.
They aimed toward the constitutional ground and they did just what this Court in Dandridge said they shouldn’t do and what we cited earlier cases suggesting that they not do, namely they decided the constitutional issue and let the statutory --
Justice Byron R. White: What precisely would be different in the injunction that should be entered.
Just assume for the moment that New York is probably correct or that the Government is probably correct on the statutory ground, now what injunction on that basis should be issued?
Mr. Philip Weinberg: Mr. Justice White, the -- this Court in Rosado indicated that in a nonconformity situation which is what that would be, the most that could be fashioned would be an injunction against that --
Justice Byron R. White: The nonconformity.
Mr. Philip Weinberg: Against the nonconformity or against the receipt of the federal funds by the state of New York.
Indeed in Rosado, the plaintiffs wanted all along that the statute be enjoined for nonconformity and that although the Court agreed with them on the merits, the Court didn’t grant such an injunction.
And in Rosado it specifically sent the case back to District Court in Brooklyn to fashion -- to see what the state would in 1970 first of all, which is not applicable here but the point is that even if the state remained in the nonconformity, this Court’s opinion in Rosado seem to make it clear that the most could be an injunction against the receipt of federal funds, if we remained in nonconformity.
Justice Byron R. White: Until that should be formed?
Mr. Philip Weinberg: Precisely.
Justice Byron R. White: Well, let’s assume we decided on the statutory ground here that New York was wrong and the Federal Government is right then that’s the only difference could be [Inaudible]
Mr. Philip Weinberg: Unless the state board itself into conformity assuming the court ruled that it was out of conformity but that’s a far different sort of injunction from the injunctions that were granted below.
Chief Justice Warren E. Burger: Has New York had any conformity proceedings in the past in this area at all?
Mr. Philip Weinberg: Not to my knowledge.
Of course, every change that’s ever made or any claim or standard of need has to conform to federal law and there you have to be submitted to HEW.
Chief Justice Warren E. Burger: I mean the enforcement process by the Department of Health Education and Welfare?
Mr. Philip Weinberg: To my knowledge, no.
Chief Justice Warren E. Burger: Have they in any other states to your knowledge?
Do you any information on that?
Mr. Philip Weinberg: Again to my knowledge, no.
As I’ve said they’ve -- as I indicated yesterday they permitted the Maryland and California disparities which Mr. Strauss just discussed to continue over the years.
Chief Justice Warren E. Burger: But there is a complete procedure or a procedure provided by Congress to achieve conformity by a state as a condition to getting the federal grants, isn’t there?
Mr. Philip Weinberg: Yes, indeed and they can compel that.
When we look at the standard of need, we see that in fact New York has one standard of need and it’s the same throughout the state just as the federal statute says it must be.
This isn't a case where we have one standard of need for the city and one for outside the city, although the Government tries to paint it that way.
It’s simply isn’t so.
The standard of need isn't in statutory in New York -- it’s administrative.
It’s prepared by Commissioner Wieman, by the department of social services and it lists the various components of that standard of needs; food, household appliances, shelter, although rent is paid separately, clothing, and so on and so forth.
But it would be simply contrary to reality to expect that every welfare recipients or indeed any welfare recipient adhere so precisely to that standard of need which tells them how many razorblades he has to buy in the course of the year and how many newspaper, and so on, obviously, there’s a great deal of flexibility in the standard of need.
The state arise that it figured that they consider to be an approximation of what the social realities are, and then they give that money to a welfare recipient and he’s presumed to purchase with that money what he has to buy.
Nobody is there to make sure that he buys a newspaper everyday or a razorblade three times a week or whatever the standard of need happens to work out.
That’s an administrative averaging process, and if the standard of need in New York City doesn’t list buying the lock for door, or a window guard, if a persons lives in a bad neighborhood, or if he doesn’t say anything about taxi cabs, well the fact that there’s a higher sales tax in New York City, it’s simply flies in the face of reality to expect that welfare recipients aren’t going to nevertheless buy locks if they need locks.
Justice Thurgood Marshall: What happens if the people living in the ghettos in Westchester County and Nassau County, and believe me there’s some ghettos out there?
Mr. Philip Weinberg: I know that very Justice Marshall.
Justice Thurgood Marshall: And they need a gauge too, don’t they?
Mr. Philip Weinberg: Yes, they do but the legislature was entitled to find that statistically comparing New York City with its enormously high crime rate and narcotic addiction and all the rest with the rest of the state taken as a whole and they saw fit to draw the line at that particular point, that problem was greater in New York.
Justice Thurgood Marshall: Then why not throw New York City and then draw the line?
Mr. Philip Weinberg: Well, they could have drawn the line to say cities over a hundred thousand people.
Well, they could have drawn Westchester in with New York, but they didn’t.
It's a -- again we’re in the area which where a legislature has to have some discretion or it doesn't have any discretion at all.
Justice Thurgood Marshall: Is the crime rate in New York higher than Buffalo?
Mr. Philip Weinberg: Well the legislature saw fit to do so.
Justice Thurgood Marshall: Did they find that it works?
Mr. Philip Weinberg: Yes, they did.
Now crime isn’t the only component of that.
For example, the utility rate is lower in the western of state than it is in New York.
Justice Thurgood Marshall: Is it lower in Westchester?
Mr. Philip Weinberg: Utilities, no.
Justice Thurgood Marshall: In Nassau?
Mr. Philip Weinberg: No, utilities are the same in the New York area.
Justice Thurgood Marshall: Those are the two counties that are here?
Mr. Philip Weinberg: Yes.
Justice Thurgood Marshall: So what you take, the state of New York takes position that you can’t defend this across the board but you had throw all these little components in and they slide in this way.
You mentioned razorblades where I assume that a hippie doesn’t need one.
[Laughter] I mean I just don’t see New York’s position except that for some reason unclear to me, New York City was set aside from the surrounding area, Nassau and Westchester County?
Mr. Philip Weinberg: Well Mr. Justice Marshall --
Justice Thurgood Marshall: You say subways, they have elaborate bus systems in those counties and I would assume the bus fare is as high as the subway fair, I would assume?
Mr. Philip Weinberg: The evidence in the record indicates that it is but the legislature found that --
Justice Thurgood Marshall: That it’s different?
Mr. Philip Weinberg: The legislature found that the New York City child on AFDC has a greater need to avail himself and his parents also to avail themselves of the municipal transportation system in taking their child to a park or a zoo which in New York City to a ghetto resident is up to not be near where he lives.
Justice Thurgood Marshall: Well, how about the --
Mr. Philip Weinberg: Now that might well also be true in --
Justice Thurgood Marshall: How about the beach in Westchester?
Mr. Philip Weinberg: Well they might --
Justice Thurgood Marshall: They got beaches too?
Mr. Philip Weinberg: No, question about it Mr. Justice Marshall but this is a legislative determination based on discretion and some of these things are simply factual, such as the sales tax about which there is little dispute.
And others are perhaps more debatable but as long as reasonable people can differ about them then I don’t see how were -- how the legislature can be held to have transgressed the Equal Protection Clause or not have a statewide standard of need, the fashion and after objective and equitable standards which what the statute says.
Justice Byron R. White: Do you really want to -- are you really trying to justify deciding the equal protection argument before the statutory argument?
Mr. Philip Weinberg: Well, we maintain this as we have throughout that the District Court improperly went to the equal protection arguments.
Justice Byron R. White: Right.
Mr. Philip Weinberg: The statutory argument obviously is different -- different and as we’ve indicated it won’t support the injunction that was granted below.
Justice Byron R. White: Well, it may not but you may not be in compliance either, that’s what the --
Mr. Philip Weinberg: That’s very true.
But HEW has never said we’re not in compliance except in effect in their brief in this Court.
The letter from their commissioner which is the only evidence otherwise that we have indicates that --
Justice Byron R. White: Well, the United States says that, yes there’s -- looks like there’s uniform standard in terms of these are the items.
But apparently, they argued that you’re giving New York City residents money for items that you won’t give money to suburban residents for.
Now, what’s your response to that?
Are you or aren’t you giving money for certain expenses that you won’t give suburbanites?
Mr. Philip Weinberg: We are, because -- well, let me rephrase it --
Justice Byron R. White: That is because -- is it because those items aren’t available in these surrounding counties or is it because they cost more in New York City or what?
Mr. Philip Weinberg: The answer to that Mr. Justice White, varies with the item we’re talking about in the case of the locks, and window guards, and taxi rides, and the other things that go with the higher crime rate in the New York City ghettos and that’s a matter of fact, I mean no doubt this crime in Buffalo and in Yonkers and we’re not going to suggest that there isn’t, but statistically it’s enormously greater in New York than it is in the rest of the state if you make that division.
And the case of those things no doubt a lot would cost the same wherever you bought one but if you don’t need a lock living in a small town, or if you needed even less in a suburb and you needed more in New York City, the legislature has a right to take that into account and give the New York City welfare recipient a little bit more money for that cab ride, for that lock to pay the sales tax which concededly doesn’t exist in these are the places.
Justice Byron R. White: So are you -- would you categorize this justification as saying that in just costing out the standards, it costs more in New York?
Mr. Philip Weinberg: Precisely.
Justice Byron R. White: Rather you’re saying --
Mr. Philip Weinberg: Not because any individual items except for the sales tax cost more, but the components that go into a person’s way of life simply require more money in New York City.
A standard of need isn’t some kind of an ironclad procrustean thing, as I tried to indicate in mentioning razorblades and things like that.
A welfare recipient has to buy what he needs in order to survive and if the legislature found that it takes more in New York City then certainly it didn’t have to so find that’s debatable, but how can it not be objective and equitable for them so find and how can it be a violation of a statute saying they have to have a statewide standard of need when they have a statewide standard of need.
Justice Byron R. White: And it’s so obvious, why is there such difficulty in demonstrating this to the HEW?
I mean if it’s just perfectly obvious about the crime rate and about the sales tax and things like this then why is there -- this big rumble between you and the HEW?
Mr. Philip Weinberg: I think it’s obvious that there’s a higher crime rate and sales tax in New York City, the other factors aren’t so obvious and then --
Justice Byron R. White: But what did HEW say to you?
I mean why can’t -- if you expect us to see this, they ought to be able to see it, didn’t they, if you’re right?
Mr. Philip Weinberg: We never got very far in the dialog with HEW because all that ever happened was their Regional Commissioner Callison wrote us a letter --
Justice Byron R. White: Which you had never answered?
Mr. Philip Weinberg: That’s true, because of the pendency of this litigation, but as the Government indicated lower level discussions have been going on, we’ve never heard a definite pronouncement from HEW except for the brief that they filed here.
Justice Byron R. White: Well would you object -- why would you object, I guess just because you don’t have to litigate but would you object demonstrating this in the District Court, if you can’t settle it -- if you can’t settle it administratively?
Mr. Philip Weinberg: Well, we’ve been trying to demonstrate it all along.
We’ve certainly prepared to demonstrate it whether before HEW or before the District Court.
We’ve attempted to demonstrate here to the extent necessary to reverse these injunctions that these things are debatable.
I’m not suggesting that they’re obvious certainly reasonable minds can differ in as Mr. Justice Marshall indicated in his earlier questioning that certain things may not be necessary for certain people and perhaps --
Justice Byron R. White: Yeah but the end of that argument is that you shouldn’t have to litigate it at all?
Mr. Philip Weinberg: Well, we’re not suggesting that we’re immune from litigation on this point if we had it a patently arbitrary standard then we wouldn’t make the statutory criterion?
Justice Byron R. White: You’re suggesting that you come to the end of the litigation, though once you demonstrate the legislative judgment about something that reasonable minds can differ on.
From then on, you ought to stop at that point, don’t you?
Mr. Philip Weinberg: Oh --
Justice Byron R. White: You don’t want to go on and say really which reasonable man is right.
You don’t want to have to decide that in litigation?
Mr. Philip Weinberg: Well, I think that’s why HEW wants a conformity hearing to the extent that -- but it seems to me when you look at the words objective and equitable which are employed in the HEW regulations, they’re really imposing their own reasonable man test.
Now, perhaps at a conformity hearing, they would have the last word, these are the states subject to the states appeal through the courts but they’re imposing their own reasonable man test.
Special grants are an individual thing and in the Rosado case this Court may quite a point of saying that individual special grants were important.
Indeed this Court noted that New York City lost its special advantage which it previously had when individual grants were eliminated in Rosado.
Justice John M. Harlan: Of course this whole discussion [Inaudible] tend to mix up this statutory arguments [Inaudible] and constitutional argument and the Federal Government [Inaudible] to New York on any basis it wants, any basis it wants.
Therefore what New York would be entitled to do as a matter of equal protection is wholly irrelevant it seems to me of what whether or not on Congress has [Inaudible] the use of these federal funds on the tax of the HEW says the case?
Mr. Philip Weinberg: I agree.
All Congress said, it was that there has to be a uniform statewide plan.
Justice John M. Harlan: The question of what New York further tax -- could not do in drawing distinctions between out state or out of the city province or not is wholly irrelevant to the statutory problems?
Mr. Philip Weinberg: Right.
Justice John M. Harlan: Congress say that they couldn’t make this non-uniformity?
Mr. Philip Weinberg: We’ve talked about the question of whether New York was arbitrary or within the embed of the legislatures permissible discretion because the injunction we’re appealing was based solely under equal protection argument.
Justice John M. Harlan: How can you deal with the question it seems to me that possibly the scope of the injunction that’s a different question, but the main question is on the statutory ground is HEW view of the statute peripheral?
Mr. Philip Weinberg: Well, as to that even if it is, we submit the injunction still have to be reversed and --
Justice John M. Harlan: That’s the question of -- that injunction if that turns out to be the case?
Mr. Philip Weinberg: I agree that’s a separate issue.
And as to the propriety of HEW’s used when the wrong regulations used words like objective and equitable, no doubt you’ve got give the practical -- the benefit of the practical construction of the statute that an administrative agency administering a system is entitled to one of the cases, although here, it’s an awkward here as we indicated yesterday that there’s no long consistent history of construction.
In fact they’ve ignored this problem until this case and get ordered in this until the appeal came to this Court.
They weren’t heard from in the District Court.
Justice John M. Harlan: That maybe a question of whether we should deal with it up here, they are taking a flatfoot position up here rightly or wrongly that this violates HEW regulations and the statute?
Mr. Philip Weinberg: There’s also Mr. Justice Harlan, the question of whether a violation of the regulation alone and the regulation uses the words objective and equitable would constitute nonconformity.
That’s not nonconformity with an act of Congress as we had in Rosado or in King against Smith.
That’s merely a regulation and -- I question again as we indicated in our reply brief whether that would be sufficient to grant this injunction or any injunction for that matter.
Justice Hugo L. Black: You say injunction was based on the Equal Protection Clause?
Mr. Philip Weinberg: Yes, the injunction below was based solely on the Equal Protection Clause the court --
Justice Hugo L. Black: Did they base it on the statute?
Mr. Philip Weinberg: No, didn’t they --
Justice Hugo L. Black: What do you say about the Equal Protection Clause?
Mr. Philip Weinberg: We say that a legislature has to have discretion to deal with these problems as it sees fit and that what the court below did just as plain as day, Mr. Justice Black was to substitute its own views on policy for what the constitution commands.
Justice Hugo L. Black: And that give us quite a number of cases that we have to pass on all those [Inaudible] from every state of the union.
Mr. Philip Weinberg: It certainly would.
That was just our point and we’ve kept -- we’ve kept try to keep in focus throughout this appeal that that was the ground on which the court below acted.
Justice Hugo L. Black: You know how many counties there are in the state of Texas?
Mr. Philip Weinberg: I think there’s 365 if I’m not mistaken.
Justice Hugo L. Black: That raised quite a problem just to decide county by county wouldn’t it, whether each one have to get a uniform --
Mr. Philip Weinberg: I don’t think it’s an issue that belongs in this Court barring some discrimination on the ground of [Inaudible] they’re obvious basis like that.
Justice Hugo L. Black: Legislative decisions on those points are based on broad approximation, the Court's mostly be based on actual judgment, based on the evidence, reach that after careful conclusion, isn’t that right?
Mr. Philip Weinberg: That’s exactly our point here.
We think the legislature had a right to make a findings such as it did that based on certain things which are somewhat intangible in some instances and quite tangible like a sales tax and other instances, had a right to find that the ghetto resident, the welfare recipient in New York City was entitled to a little bit extra compensate with those factors.
And it’s ironic that this litigation came up at a time when every enlightened social commentator was asking people to do more about the cities and to concern themselves with the problems of the urban core.
Justice Hugo L. Black: Do you think if they decide to make a uniform rate they ever get person in Texas of the 367 counties or whatever it is, that we would have to pass on the evidence on each one of those to see whether or not, they had the reached the correct conclusion on such difficult problems as how much you to cost to live in that county?
Mr. Philip Weinberg: Mr. Justice Black we’ve tried to indicate throughout that we don’t think the Equal Protection Clause reaches that far unless if where a case of something like racial discrimination or just complete patent arbitrariness where the state just didn’t come forward with anything at all.
Chief Justice Warren E. Burger: But you got a District Court with a different view of the matter now.
Mr. Philip Weinberg: Yes, they certainly did.
They completely violated what this Court said in Dandridge and what this Court has said earlier in cases like McDonald which we cited to them.
Chief Justice Warren E. Burger: Is it your view that Congress intended the confirmaty proceedings as the primary method of resolving the differences in standards between the states in the Federal Government?
Mr. Philip Weinberg: In the situation that we have here, yes sir, I believe so sir.
Chief Justice Warren E. Burger: And that would be in a District Court proceeding, would it, a single-judge district court, a regular evidentiary case?
Mr. Philip Weinberg: It would be an appeal from the HEW determination through the courts it would be, I assume a single-judge district court along, I’m frankly not sure.
Chief Justice Warren E. Burger: And then it would go to the Court of Appeals and then come here possibly?
Mr. Philip Weinberg: Yes, sir.
Chief Justice Warren E. Burger: Instead of coming in one leap from a three-judge court to this Court?
Mr. Philip Weinberg: Precisely.
And for all of those reasons, we submit that these injunction should be reversed for the reasons we’ve suggested.
Chief Justice Warren E. Burger: Thank you, Mr. Weinberg.
Justice John M. Harlan: Mr. Chief Justice, could I --.
Chief Justice Warren E. Burger: Why not?
Mr. Strauss.
Justice John M. Harlan: Mr. Strauss, I notice around your amicus brief there’s no the HEW -- there’s no HEW lawyer, did you represent at the Court of that brief represent that usually together?
Rebuttal of Peter L. Strauss
Mr. Peter L. Strauss: Oh, surely Your Honor.
Our general practice is not to put lawyers of the Government departments on our brief.
Chief Justice Warren E. Burger: Thank you gentlemen.
The Case is Submitted.
Print this transcript
Transcript:
Argument of Peter L. Strauss
Chief Justice Warren E. Burger: We will resume arguments in Number 896 Wyman against Rothstein.
Mr. Peter L. Strauss: Mr. Chief Justice --
Chief Justice Warren E. Burger: Mr. Strauss, you may proceed.
Mr. Peter L. Strauss: -- may it please the Court.
Yesterday, I believe I was asked at the close of the session about remand, ought there to be a remand, ought this Court finally to pass on the statutory issue here.
I think I should say, I think there would be a substantial point in remanding it, there’s no need to pass on the statutory issue finally.
And this is a preliminary injunction.
All that’s necessary is that the Court be convinced that the appellees probably will succeed upon their cause of action in the court below.
And as I was starting to say, the State of New York in this most recently enacted statute, of which I believe the Court has copies, has made some policy judgments which I think go to the heart of some of the doubts.
Unknown Speaker: [Inaudible]
Mr. Peter L. Strauss: Sure.
Unknown Speaker: If we were the remand [Inaudible]
Mr. Peter L. Strauss: No, I should think not.
To affirm the preliminary injunction, but on the basis that appellees had shown that they probably would succeed that there was no abuse of discretion on the part of the --
Chief Justice Warren E. Burger: Succeed on the constitutional issue or on the statute?
Mr. Peter L. Strauss: On the statute, I think this Court can pass on that issue here.
It remarked with some strength in footnote in the Dandridge case regarding the right of appellees to put forward any ground that would support the judgment which they received below.
It remarked with some strength in Rosado, that statutory issue should be reached before constitutional issues and I think on those basis that this Court would have no difficulty reaching the statutory issue and making the judgment on the basis of the facts which New York has I think conceded.
Unknown Speaker: [Inaudible]
Mr. Peter L. Strauss: I think that was left open in Rosado.
I think the situation in this Court in Rosado however was that the petitioners there had relief before this Court.
Here petitioners come into this Court, relief having been granted.
We take the position that that relief is no more than an order of compliance with the federal standard which in our view New York is in any event obligated to comply.
We believe that petitioners have made the showing, a sufficient showing that New York is out of compliance with that standard to justify such an order.
It leaves free to New York the choice which this Court said New York must have in Rosado, that is the choice of withdrawing entirely from the federal program.
And then the point I wanted to make them the basis of the statute is that New York has in fact made that choice.
In the statute the legislature said and I’m quoting at line nine of the first page, if you have it there, “The legislature hereby declares its intent to make provision for the state to meet all necessary federal requirements under the Social Security Act.
And again at line three, “It is the intent of the legislature that the Department of Social Services shall determine and establish the standards of need for public assistance in this state in conformity with federal requirements.”
And again, within the adopted amended Section 131 (a) itself on page 4 at line twelve, “If federal requirements make it necessary to adjust any schedule of grants and allowances or part thereof, the department shall make such adjustments.”
So that I think New York’s judgment in this case is entirely clear and as we set out in the rather long footnote of the end of our amicus brief, is the judgment in which all states of the union have essentially concurred.
And there was also the question yesterday and I think this goes back to what I was trying to say during the short time I had then, “Why was the Government had put as part of its question presented, whether the New York State plan improperly favors residents of New York City over residents of other areas of the state,” and this goes I think to the heart of the issue.
The impropriety is not in itself in the payment of more money in New York City than New York State, but as I was trying to state yesterday in considering that residents of New York State need services, need goods, need items which are not under any circumstances made available to residents of any other part of the state even though their need for those items might equally be made the same.
And it seems to us that this is directly inconsistent with the statute, with the provision of the statute which in both cases, Section 602 (a) and Section 1382 (a) provides that a state plan for aid and services must provide that it shall be in effect in all political subdivisions of the state and if administered by the subdivisions must be mandatory upon them.
And it has been since the beginning of the act to the departments understanding and interpretation that that means that you cannot say within a state the people in part of the state are entitled to goods and services, I’m not talking about amounts of money at this point, entitled the goods and services to accounting for those goods and services which people in another part of the state simply have no access too.
Justice Potter Stewart: I don’t quite understand ultimately what it is that you submit that the federal statute requires in the way of uniformity.
I gather you -- the claim as that it requires a -- the same -- that the same criteria they used in establishing the standard of need throughout the states, is that it?
Mr. Peter L. Strauss: Yes, I think that’s right Mr. Justice Stewart.
In --
Justice Potter Stewart: But in New York City, for example there are subways, that’s the way people get back and forth and every -- anybody, most people who live uptown or work downtown, live in Harlem, work in midtown have to use those subways and as in a little town up right Alexandria Bay, you walk.
I don’t see how this can be worked out uniformly because there is a need for a service in New York City that does not exist in Redwood or Alexandria Bay.
Mr. Peter L. Strauss: Well, I think it’s correct that it doesn’t exist in Redwood or Alexandria Bay, but I don’t think it can be said on the basis of this record that that need doesn’t exist in Nassau County or in Westchester County which are crowded, congested areas, where necessary services and jobs may also --
Justice Potter Stewart: I think New York City is the only city in the state that has a subway system and where that the people have to use it?
Mr. Peter L. Strauss: Well, suppose it comes down to how particular judgment you were to make.
As I understand the New York standard of need, the list of basic needs which New York State recognizes claims to recognize in its standard of need doesn’t include any allowance for transportation, that is at page 47 of the appendix, food, clothing, personal incidentals, household supplies, school expenses, utilities, laundries and sales taxes.
Now, it is certainly our position that New York State could if it felt it was necessary to the residents of that state make provision for transportation expenses to take your example.
And it could do so either on a basic need basis, or on a special need basis, I think the Court is familiar with that difference from Rosado.
If it does on a basic needs basis, that means that the cost is to be figured in to the flat ground for every resident of the state.
In figuring that cost, the state has the option of doing it on an average basis or doing it on a local regional basis, and if they did it on a local regional basis, I would certainly agree that the amount for New York City would quite possibly be higher than the amount for other parts of the state.
From the evidence of the record it might also be lower than let’s say Nassau County.
Chief Justice Warren E. Burger: Then your argument really comes down to the fact that there’s been a mistaken judgment here, a legislative judgment any/or an administrative misjudgment?
Mr. Peter L. Strauss: No, it’s more than that Mr. Chief Justice.
We are talking here not about or at least I am talking here, not about the Equal Protection Clause with the judgments of rationality which this -- to which this Court referred in Dandridge, but about federal standards.
And the federal standard I’m talking about is the requirement that in deciding what it is its public assistance beneficiaries required, the state must reach this decision on a uniform, statewide basis.
It may cost it on a local basis, but the legislature cannot make the judgment and it is not simply a disagreement of judgment, it’s a question of consistency.
The legislature may not make the judgment.
The people in New York City are conclusively presumed to need transportation and people outside New York City are conclusively presumed not to need transportation.
Justice John M. Harlan: I suppose under your theory of remand, we go no further [Inaudible] basis to probability of success in this case then go back to District Court and the District Court would be free to reject to which the HEW [Inaudible]
Mr. Peter L. Strauss: I would suppose all issues would be open for trial.
Justice John M. Harlan: [Inaudible]
Mr. Peter L. Strauss: That’s right.
We are only showing here probability of success.
Justice John M. Harlan: But the fact is that we don’t have to accept that this level, the HEW recommendations?
Mr. Peter L. Strauss: No, you need only --
Justice John M. Harlan: All we have to say is that the temporary injunction has got a sufficient basis, probability of success justify it’s continuance and then send the case back to the District Court to sort out the problem?
Mr. Peter L. Strauss: That’s right.
If I can go back for a moment because appellants raise this issue, they talk about the California differential and they talk about the Maryland differential, how are those different from the situation in this case.
There are three situations in which HEW does recognize cost variances.
They’re all provided for in these regulations which begin at 34 Federal Register 1394 and which we cite in our brief.
And the first of them is the California situation in which the state establishes a standard of need on a statewide basis, but is unable to pay the total amount of that standard applies a ratable reduction or it applies a maximum, so that there’s a gap between need on the one hand and actual payments on the other.
In that situation, any local subdivision may fill the gap and that’s what some of the California subdivisions do.
They may make payments between the level of state payments and the level of need as determined by the state under its uniform standard, and those payments will not be counted as income of the recipient and therefore do go to supplement the program.
Now, of course those payments aren’t subject to federal matching, the local subdivisions receive no funds for the federal -- from the Federal Government for that.
The second situation is a situation in which New York City, let us say determined that its residents needed transportation and there was no provision in the New York State standard of need for transportation as there is now, New York City could then provide those services which weren’t provided for in the state plan.
And again there would be no conformity issue, and there would no reduction of payments but again New York City’s payments for transportation would be not matched by federal payments, there would be no federal funds involved in that.
And then the third situation is the one under which New York State seeks to justify its payments here that there maybe differences in payments where those differences are justified by differences in costs, but before one can get to the question of differences in costs and this again is the essential point here, there must be a uniform standard of need and that is what we think is lacking here.
Justice Potter Stewart: Well what is the -- which system has been followed in Maryland and Dandridge against Williams.
Although [Voice Overlap] I remember had a maximum of 250 months, and the rest of state 240?
Mr. Peter L. Strauss: Maryland has not been -- I should say that Maryland hasn’t been called on to justify this by HEW and what I’m saying is no more than a belief of the officials and the department as to what that is about, but the Maryland’s sums includes sums for housing.
The maximum is in all inclusive maximum including housing expenses, and our belief is that that difference reflects a difference in the cost of urban housing.
Justice Potter Stewart: Are staff discussions still going on in this case between the staff of HEW and the appropriate authorities in New York State?
Mr. Peter L. Strauss: My understanding is that New York has not responded to the letter of November.
Justice Potter Stewart: Well, that doesn’t answer my question.
You say that in your brief, but then you say staff discussions have not yielded at any acceptable showing to support the difference and that was your brief on file earlier this month which implies the staff discussions have taken place, are they still going on?
Mr. Peter L. Strauss: I couldn’t -- I don’t believe people are meeting today.
I think it’s at the stage of a decision in the regional office, whether to bring a formal conformity proceeding or not, but more than that I’m afraid I simply don’t know.
Justice Byron R. White: Mr. Strauss, well although you read the items that went into New York standard of need -- now those items are standard statewide?
Mr. Peter L. Strauss: Yes, and all the evidence is that the cost to those items is standard statewide.
Justice Byron R. White: And you say that the standard is -- insofar as the standard is described by those items, that is the same statewide?
Mr. Peter L. Strauss: That’s right.
Justice Byron R. White: And your intention is that New York has not substantiated the difference in cost for those items as between the different parts of the state?
Mr. Peter L. Strauss: Well, I --
Justice Byron R. White: That the legislature may not conclusively presume that are different like the --
Mr. Peter L. Strauss: No, I think New York is trying to justify that difference on a different basis.
It’s not saying that those items cost more in New York City.
Justice Byron R. White: So what is the different basis --
Mr. Peter L. Strauss: As I understand their basis, they are saying in addition to those items, New York City residents require money to pay for security locks, and New York City residents require money to pay for transportation.
Justice Byron R. White: You mean within those broad categories making up the standards, you need like household items?
Mr. Peter L. Strauss: Well, I think --
Justice Byron R. White: They must be fitting them in somewhere?
Mr. Peter L. Strauss: It’s a household supplies, I don’t think in the same sense that furniture wouldn’t come within household supplies or personal incidentals, I don’t believe that under the ordinary circumstances hardware would, I maybe wrong in that. These -- as I understand this list, it doesn’t provide for durables with the exception of --
Justice Byron R. White: Well you’re saying -- your claim is not that the legislature has made a judge -- an unacceptable judgment about cost of various items but if -- but that they want to pay for items for New York City residence, if they refuse to pay for elsewhere?
Mr. Peter L. Strauss: That’s right, museums, cultural activities and so forth.
Well, if I may just say in conclusion in Rosado, this Court put New York under an obligation fully and realistically to reassess the recurring needs of its welfare recipients in this case, the issue is whether the state must not do so on a uniform statewide basis, and we believe it must.
Thank you.
Chief Justice Warren E. Burger: Thank you Mr. Strauss.
Mr. Weinberg you have 13 minutes left.
Argument of Philip Weinberg
Mr. Philip Weinberg: Thank you Your Honor.
May it please the Court.
I think the short answer to Mr. Strauss’ argument about albeit the District Court started of on the wrong foot, why don’t we simply take it the other way and affirm the injunction anyway because they’re probably right about the statutory ground as well.
The short answer to that is that the sweeping injunctions that were granted below aren’t supported by the statutory ground.
And this Court’s decision in Rosado makes that clear because what the Court did below was issue an injunction against enforcement of the statute at all unless it were corrected and objectives -- what they thought were objective standards were imposed, which would have been a valid injunction under the Equal Protection Clause assuming a violation of that clause had been shown.
The language is, other -- they’re enjoined from enforcing this statute at all other than according to objective, non-discriminatory standards based upon the cost of the needs of such recipients.
Now, a statutory nonconformity as in Rosado doesn’t support any such injunction, and indeed this Court, Rosado made that clear.
The most that could be done there would be a remand to the District Court to what -- assuming that the probabilities were that the HEW is right and we were wrong about the statutory argument, the most that could be done would be to remand the case of District Court for a much more narrow injunction such as the one this Court discussed in Rosado.
Now, over and above that when we --
Justice Byron R. White: Because the District Court has never fashioned an injunction -- preliminary injunction based on the possible statutory validity?
Mr. Philip Weinberg: Precisely.
Justice Byron R. White: Is that your point?
Mr. Philip Weinberg: Yes, they started off on the wrong foot.
They aimed toward the constitutional ground and they did just what this Court in Dandridge said they shouldn’t do and what we cited earlier cases suggesting that they not do, namely they decided the constitutional issue and let the statutory --
Justice Byron R. White: What precisely would be different in the injunction that should be entered.
Just assume for the moment that New York is probably correct or that the Government is probably correct on the statutory ground, now what injunction on that basis should be issued?
Mr. Philip Weinberg: Mr. Justice White, the -- this Court in Rosado indicated that in a nonconformity situation which is what that would be, the most that could be fashioned would be an injunction against that --
Justice Byron R. White: The nonconformity.
Mr. Philip Weinberg: Against the nonconformity or against the receipt of the federal funds by the state of New York.
Indeed in Rosado, the plaintiffs wanted all along that the statute be enjoined for nonconformity and that although the Court agreed with them on the merits, the Court didn’t grant such an injunction.
And in Rosado it specifically sent the case back to District Court in Brooklyn to fashion -- to see what the state would in 1970 first of all, which is not applicable here but the point is that even if the state remained in the nonconformity, this Court’s opinion in Rosado seem to make it clear that the most could be an injunction against the receipt of federal funds, if we remained in nonconformity.
Justice Byron R. White: Until that should be formed?
Mr. Philip Weinberg: Precisely.
Justice Byron R. White: Well, let’s assume we decided on the statutory ground here that New York was wrong and the Federal Government is right then that’s the only difference could be [Inaudible]
Mr. Philip Weinberg: Unless the state board itself into conformity assuming the court ruled that it was out of conformity but that’s a far different sort of injunction from the injunctions that were granted below.
Chief Justice Warren E. Burger: Has New York had any conformity proceedings in the past in this area at all?
Mr. Philip Weinberg: Not to my knowledge.
Of course, every change that’s ever made or any claim or standard of need has to conform to federal law and there you have to be submitted to HEW.
Chief Justice Warren E. Burger: I mean the enforcement process by the Department of Health Education and Welfare?
Mr. Philip Weinberg: To my knowledge, no.
Chief Justice Warren E. Burger: Have they in any other states to your knowledge?
Do you any information on that?
Mr. Philip Weinberg: Again to my knowledge, no.
As I’ve said they’ve -- as I indicated yesterday they permitted the Maryland and California disparities which Mr. Strauss just discussed to continue over the years.
Chief Justice Warren E. Burger: But there is a complete procedure or a procedure provided by Congress to achieve conformity by a state as a condition to getting the federal grants, isn’t there?
Mr. Philip Weinberg: Yes, indeed and they can compel that.
When we look at the standard of need, we see that in fact New York has one standard of need and it’s the same throughout the state just as the federal statute says it must be.
This isn't a case where we have one standard of need for the city and one for outside the city, although the Government tries to paint it that way.
It’s simply isn’t so.
The standard of need isn't in statutory in New York -- it’s administrative.
It’s prepared by Commissioner Wieman, by the department of social services and it lists the various components of that standard of needs; food, household appliances, shelter, although rent is paid separately, clothing, and so on and so forth.
But it would be simply contrary to reality to expect that every welfare recipients or indeed any welfare recipient adhere so precisely to that standard of need which tells them how many razorblades he has to buy in the course of the year and how many newspaper, and so on, obviously, there’s a great deal of flexibility in the standard of need.
The state arise that it figured that they consider to be an approximation of what the social realities are, and then they give that money to a welfare recipient and he’s presumed to purchase with that money what he has to buy.
Nobody is there to make sure that he buys a newspaper everyday or a razorblade three times a week or whatever the standard of need happens to work out.
That’s an administrative averaging process, and if the standard of need in New York City doesn’t list buying the lock for door, or a window guard, if a persons lives in a bad neighborhood, or if he doesn’t say anything about taxi cabs, well the fact that there’s a higher sales tax in New York City, it’s simply flies in the face of reality to expect that welfare recipients aren’t going to nevertheless buy locks if they need locks.
Justice Thurgood Marshall: What happens if the people living in the ghettos in Westchester County and Nassau County, and believe me there’s some ghettos out there?
Mr. Philip Weinberg: I know that very Justice Marshall.
Justice Thurgood Marshall: And they need a gauge too, don’t they?
Mr. Philip Weinberg: Yes, they do but the legislature was entitled to find that statistically comparing New York City with its enormously high crime rate and narcotic addiction and all the rest with the rest of the state taken as a whole and they saw fit to draw the line at that particular point, that problem was greater in New York.
Justice Thurgood Marshall: Then why not throw New York City and then draw the line?
Mr. Philip Weinberg: Well, they could have drawn the line to say cities over a hundred thousand people.
Well, they could have drawn Westchester in with New York, but they didn’t.
It's a -- again we’re in the area which where a legislature has to have some discretion or it doesn't have any discretion at all.
Justice Thurgood Marshall: Is the crime rate in New York higher than Buffalo?
Mr. Philip Weinberg: Well the legislature saw fit to do so.
Justice Thurgood Marshall: Did they find that it works?
Mr. Philip Weinberg: Yes, they did.
Now crime isn’t the only component of that.
For example, the utility rate is lower in the western of state than it is in New York.
Justice Thurgood Marshall: Is it lower in Westchester?
Mr. Philip Weinberg: Utilities, no.
Justice Thurgood Marshall: In Nassau?
Mr. Philip Weinberg: No, utilities are the same in the New York area.
Justice Thurgood Marshall: Those are the two counties that are here?
Mr. Philip Weinberg: Yes.
Justice Thurgood Marshall: So what you take, the state of New York takes position that you can’t defend this across the board but you had throw all these little components in and they slide in this way.
You mentioned razorblades where I assume that a hippie doesn’t need one.
[Laughter] I mean I just don’t see New York’s position except that for some reason unclear to me, New York City was set aside from the surrounding area, Nassau and Westchester County?
Mr. Philip Weinberg: Well Mr. Justice Marshall --
Justice Thurgood Marshall: You say subways, they have elaborate bus systems in those counties and I would assume the bus fare is as high as the subway fair, I would assume?
Mr. Philip Weinberg: The evidence in the record indicates that it is but the legislature found that --
Justice Thurgood Marshall: That it’s different?
Mr. Philip Weinberg: The legislature found that the New York City child on AFDC has a greater need to avail himself and his parents also to avail themselves of the municipal transportation system in taking their child to a park or a zoo which in New York City to a ghetto resident is up to not be near where he lives.
Justice Thurgood Marshall: Well, how about the --
Mr. Philip Weinberg: Now that might well also be true in --
Justice Thurgood Marshall: How about the beach in Westchester?
Mr. Philip Weinberg: Well they might --
Justice Thurgood Marshall: They got beaches too?
Mr. Philip Weinberg: No, question about it Mr. Justice Marshall but this is a legislative determination based on discretion and some of these things are simply factual, such as the sales tax about which there is little dispute.
And others are perhaps more debatable but as long as reasonable people can differ about them then I don’t see how were -- how the legislature can be held to have transgressed the Equal Protection Clause or not have a statewide standard of need, the fashion and after objective and equitable standards which what the statute says.
Justice Byron R. White: Do you really want to -- are you really trying to justify deciding the equal protection argument before the statutory argument?
Mr. Philip Weinberg: Well, we maintain this as we have throughout that the District Court improperly went to the equal protection arguments.
Justice Byron R. White: Right.
Mr. Philip Weinberg: The statutory argument obviously is different -- different and as we’ve indicated it won’t support the injunction that was granted below.
Justice Byron R. White: Well, it may not but you may not be in compliance either, that’s what the --
Mr. Philip Weinberg: That’s very true.
But HEW has never said we’re not in compliance except in effect in their brief in this Court.
The letter from their commissioner which is the only evidence otherwise that we have indicates that --
Justice Byron R. White: Well, the United States says that, yes there’s -- looks like there’s uniform standard in terms of these are the items.
But apparently, they argued that you’re giving New York City residents money for items that you won’t give money to suburban residents for.
Now, what’s your response to that?
Are you or aren’t you giving money for certain expenses that you won’t give suburbanites?
Mr. Philip Weinberg: We are, because -- well, let me rephrase it --
Justice Byron R. White: That is because -- is it because those items aren’t available in these surrounding counties or is it because they cost more in New York City or what?
Mr. Philip Weinberg: The answer to that Mr. Justice White, varies with the item we’re talking about in the case of the locks, and window guards, and taxi rides, and the other things that go with the higher crime rate in the New York City ghettos and that’s a matter of fact, I mean no doubt this crime in Buffalo and in Yonkers and we’re not going to suggest that there isn’t, but statistically it’s enormously greater in New York than it is in the rest of the state if you make that division.
And the case of those things no doubt a lot would cost the same wherever you bought one but if you don’t need a lock living in a small town, or if you needed even less in a suburb and you needed more in New York City, the legislature has a right to take that into account and give the New York City welfare recipient a little bit more money for that cab ride, for that lock to pay the sales tax which concededly doesn’t exist in these are the places.
Justice Byron R. White: So are you -- would you categorize this justification as saying that in just costing out the standards, it costs more in New York?
Mr. Philip Weinberg: Precisely.
Justice Byron R. White: Rather you’re saying --
Mr. Philip Weinberg: Not because any individual items except for the sales tax cost more, but the components that go into a person’s way of life simply require more money in New York City.
A standard of need isn’t some kind of an ironclad procrustean thing, as I tried to indicate in mentioning razorblades and things like that.
A welfare recipient has to buy what he needs in order to survive and if the legislature found that it takes more in New York City then certainly it didn’t have to so find that’s debatable, but how can it not be objective and equitable for them so find and how can it be a violation of a statute saying they have to have a statewide standard of need when they have a statewide standard of need.
Justice Byron R. White: And it’s so obvious, why is there such difficulty in demonstrating this to the HEW?
I mean if it’s just perfectly obvious about the crime rate and about the sales tax and things like this then why is there -- this big rumble between you and the HEW?
Mr. Philip Weinberg: I think it’s obvious that there’s a higher crime rate and sales tax in New York City, the other factors aren’t so obvious and then --
Justice Byron R. White: But what did HEW say to you?
I mean why can’t -- if you expect us to see this, they ought to be able to see it, didn’t they, if you’re right?
Mr. Philip Weinberg: We never got very far in the dialog with HEW because all that ever happened was their Regional Commissioner Callison wrote us a letter --
Justice Byron R. White: Which you had never answered?
Mr. Philip Weinberg: That’s true, because of the pendency of this litigation, but as the Government indicated lower level discussions have been going on, we’ve never heard a definite pronouncement from HEW except for the brief that they filed here.
Justice Byron R. White: Well would you object -- why would you object, I guess just because you don’t have to litigate but would you object demonstrating this in the District Court, if you can’t settle it -- if you can’t settle it administratively?
Mr. Philip Weinberg: Well, we’ve been trying to demonstrate it all along.
We’ve certainly prepared to demonstrate it whether before HEW or before the District Court.
We’ve attempted to demonstrate here to the extent necessary to reverse these injunctions that these things are debatable.
I’m not suggesting that they’re obvious certainly reasonable minds can differ in as Mr. Justice Marshall indicated in his earlier questioning that certain things may not be necessary for certain people and perhaps --
Justice Byron R. White: Yeah but the end of that argument is that you shouldn’t have to litigate it at all?
Mr. Philip Weinberg: Well, we’re not suggesting that we’re immune from litigation on this point if we had it a patently arbitrary standard then we wouldn’t make the statutory criterion?
Justice Byron R. White: You’re suggesting that you come to the end of the litigation, though once you demonstrate the legislative judgment about something that reasonable minds can differ on.
From then on, you ought to stop at that point, don’t you?
Mr. Philip Weinberg: Oh --
Justice Byron R. White: You don’t want to go on and say really which reasonable man is right.
You don’t want to have to decide that in litigation?
Mr. Philip Weinberg: Well, I think that’s why HEW wants a conformity hearing to the extent that -- but it seems to me when you look at the words objective and equitable which are employed in the HEW regulations, they’re really imposing their own reasonable man test.
Now, perhaps at a conformity hearing, they would have the last word, these are the states subject to the states appeal through the courts but they’re imposing their own reasonable man test.
Special grants are an individual thing and in the Rosado case this Court may quite a point of saying that individual special grants were important.
Indeed this Court noted that New York City lost its special advantage which it previously had when individual grants were eliminated in Rosado.
Justice John M. Harlan: Of course this whole discussion [Inaudible] tend to mix up this statutory arguments [Inaudible] and constitutional argument and the Federal Government [Inaudible] to New York on any basis it wants, any basis it wants.
Therefore what New York would be entitled to do as a matter of equal protection is wholly irrelevant it seems to me of what whether or not on Congress has [Inaudible] the use of these federal funds on the tax of the HEW says the case?
Mr. Philip Weinberg: I agree.
All Congress said, it was that there has to be a uniform statewide plan.
Justice John M. Harlan: The question of what New York further tax -- could not do in drawing distinctions between out state or out of the city province or not is wholly irrelevant to the statutory problems?
Mr. Philip Weinberg: Right.
Justice John M. Harlan: Congress say that they couldn’t make this non-uniformity?
Mr. Philip Weinberg: We’ve talked about the question of whether New York was arbitrary or within the embed of the legislatures permissible discretion because the injunction we’re appealing was based solely under equal protection argument.
Justice John M. Harlan: How can you deal with the question it seems to me that possibly the scope of the injunction that’s a different question, but the main question is on the statutory ground is HEW view of the statute peripheral?
Mr. Philip Weinberg: Well, as to that even if it is, we submit the injunction still have to be reversed and --
Justice John M. Harlan: That’s the question of -- that injunction if that turns out to be the case?
Mr. Philip Weinberg: I agree that’s a separate issue.
And as to the propriety of HEW’s used when the wrong regulations used words like objective and equitable, no doubt you’ve got give the practical -- the benefit of the practical construction of the statute that an administrative agency administering a system is entitled to one of the cases, although here, it’s an awkward here as we indicated yesterday that there’s no long consistent history of construction.
In fact they’ve ignored this problem until this case and get ordered in this until the appeal came to this Court.
They weren’t heard from in the District Court.
Justice John M. Harlan: That maybe a question of whether we should deal with it up here, they are taking a flatfoot position up here rightly or wrongly that this violates HEW regulations and the statute?
Mr. Philip Weinberg: There’s also Mr. Justice Harlan, the question of whether a violation of the regulation alone and the regulation uses the words objective and equitable would constitute nonconformity.
That’s not nonconformity with an act of Congress as we had in Rosado or in King against Smith.
That’s merely a regulation and -- I question again as we indicated in our reply brief whether that would be sufficient to grant this injunction or any injunction for that matter.
Justice Hugo L. Black: You say injunction was based on the Equal Protection Clause?
Mr. Philip Weinberg: Yes, the injunction below was based solely on the Equal Protection Clause the court --
Justice Hugo L. Black: Did they base it on the statute?
Mr. Philip Weinberg: No, didn’t they --
Justice Hugo L. Black: What do you say about the Equal Protection Clause?
Mr. Philip Weinberg: We say that a legislature has to have discretion to deal with these problems as it sees fit and that what the court below did just as plain as day, Mr. Justice Black was to substitute its own views on policy for what the constitution commands.
Justice Hugo L. Black: And that give us quite a number of cases that we have to pass on all those [Inaudible] from every state of the union.
Mr. Philip Weinberg: It certainly would.
That was just our point and we’ve kept -- we’ve kept try to keep in focus throughout this appeal that that was the ground on which the court below acted.
Justice Hugo L. Black: You know how many counties there are in the state of Texas?
Mr. Philip Weinberg: I think there’s 365 if I’m not mistaken.
Justice Hugo L. Black: That raised quite a problem just to decide county by county wouldn’t it, whether each one have to get a uniform --
Mr. Philip Weinberg: I don’t think it’s an issue that belongs in this Court barring some discrimination on the ground of [Inaudible] they’re obvious basis like that.
Justice Hugo L. Black: Legislative decisions on those points are based on broad approximation, the Court's mostly be based on actual judgment, based on the evidence, reach that after careful conclusion, isn’t that right?
Mr. Philip Weinberg: That’s exactly our point here.
We think the legislature had a right to make a findings such as it did that based on certain things which are somewhat intangible in some instances and quite tangible like a sales tax and other instances, had a right to find that the ghetto resident, the welfare recipient in New York City was entitled to a little bit extra compensate with those factors.
And it’s ironic that this litigation came up at a time when every enlightened social commentator was asking people to do more about the cities and to concern themselves with the problems of the urban core.
Justice Hugo L. Black: Do you think if they decide to make a uniform rate they ever get person in Texas of the 367 counties or whatever it is, that we would have to pass on the evidence on each one of those to see whether or not, they had the reached the correct conclusion on such difficult problems as how much you to cost to live in that county?
Mr. Philip Weinberg: Mr. Justice Black we’ve tried to indicate throughout that we don’t think the Equal Protection Clause reaches that far unless if where a case of something like racial discrimination or just complete patent arbitrariness where the state just didn’t come forward with anything at all.
Chief Justice Warren E. Burger: But you got a District Court with a different view of the matter now.
Mr. Philip Weinberg: Yes, they certainly did.
They completely violated what this Court said in Dandridge and what this Court has said earlier in cases like McDonald which we cited to them.
Chief Justice Warren E. Burger: Is it your view that Congress intended the confirmaty proceedings as the primary method of resolving the differences in standards between the states in the Federal Government?
Mr. Philip Weinberg: In the situation that we have here, yes sir, I believe so sir.
Chief Justice Warren E. Burger: And that would be in a District Court proceeding, would it, a single-judge district court, a regular evidentiary case?
Mr. Philip Weinberg: It would be an appeal from the HEW determination through the courts it would be, I assume a single-judge district court along, I’m frankly not sure.
Chief Justice Warren E. Burger: And then it would go to the Court of Appeals and then come here possibly?
Mr. Philip Weinberg: Yes, sir.
Chief Justice Warren E. Burger: Instead of coming in one leap from a three-judge court to this Court?
Mr. Philip Weinberg: Precisely.
And for all of those reasons, we submit that these injunction should be reversed for the reasons we’ve suggested.
Chief Justice Warren E. Burger: Thank you, Mr. Weinberg.
Justice John M. Harlan: Mr. Chief Justice, could I --.
Chief Justice Warren E. Burger: Why not?
Mr. Strauss.
Justice John M. Harlan: Mr. Strauss, I notice around your amicus brief there’s no the HEW -- there’s no HEW lawyer, did you represent at the Court of that brief represent that usually together?
Rebuttal of Peter L. Strauss
Mr. Peter L. Strauss: Oh, surely Your Honor.
Our general practice is not to put lawyers of the Government departments on our brief.
Chief Justice Warren E. Burger: Thank you gentlemen.
The Case is Submitted.
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WYMAN v. ROTHSTEIN. The Oyez Project at IIT Chicago-Kent College of Law. 27 April 2013. <http://www.oyez.org/cases/1960-1969/1969/1969_896>.
WYMAN v. ROTHSTEIN, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1960-1969/1969/1969_896 (last visited April 27, 2013).
"WYMAN v. ROTHSTEIN," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 27, 2013, http://www.oyez.org/cases/1960-1969/1969/1969_896.