BLUM v. BACON

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ORAL ARGUMENT OF ROBERT S. HAMMER, ESQ.

Chief Justice Burger: Mr. Hammer, you may begin.

Mr. Hammer: Mr. Chief Justice, and may it please the Court, this case presents the question which the court left open in Quern v. Mandley back in 1978, namely whether a state emergency assistance law which does not cover all possible emergencies and, as the court below held, which conforms to the Federal Social Security Act, whether this statute also conforms to the Equal Protection Clause of the Fourteenth Amendment.

Specifically, we are dealing this morning with amendments to Section 350-J of the New York Social Services law, which were added by Chapter 77 of the laws of 1977, Section 10, effective May 1, 1977.

Specifically, these amendments denied cash emergency assistance to Aid to Families with Dependent Children recipients and eligibles.

It also denied the replacement of lost, stolen, or mismanaged cash.

It also forbad the duplication or replacement of any portion of a regularly recurring grant.

In the instant case, as I... the Second Circuit has upheld the statute under the Supremacy Clause.

However, and, we would submit, erroneously, the court held these same provisions unconstitutional as denials of equal protection of the law.

The known facts of this case are simple and essentially not in dispute.

Shortly after these new amendments took effect, the plaintiffs, who are all AFDC recipients, received their regular welfare checks.

They cashed them, in some cases made purchases or paid rent, and then, through some unexplained course of events, either the money was lost or stolen.

In all of these cases the thefts were reported to the local police and to the Westchester County welfare officials.

It is assumed by both sides, and the record reflects that, but for the amendments to the statute, all of these individuals would have been eligible for emergency assistance.

They were, in fact, denied cash emergency assistance on the basis of the new statute.

Of the main plaintiffs, Miss Bacon received a special food voucher from her case worker and was referred to voluntary agencies for further cash assistance.

The record is silent as to whether she pursued this referral.

Likewise, the record is silent as to whether any of the other plaintiffs were referred to voluntary agencies.

I mention this merely because that among the components of emergency assistance is referral and counseling.

However, as I indicate, the papers in this case as prepared by the plaintiffs do not indicate one way or another whether resort was made to voluntary assistance.

It's also apparent from a close reading of the plaintiffs' papers that although there is in each case an allegation of utter destitution and inability to get along without any cash assistance, the fact remains that from the time of the incident as reported to the police and then as reported to welfare officials and, in one case, reported to counsel even before the individual went to the welfare officials, there elapsed a period of an average of a week or so, in one case a little less, a couple of cases a little more, from the time of the incident until a temporary restraining order was obtained in court.

I mention it because although there is the allegation in the complaint and in the supporting affidavits that these people were utterly destitute and unable to get along without cash emergency assistance, there is no allegation that somehow they couldn't manage.

Somehow, it would appear, at least, I submit, from the silence in the plaintiffs' papers, that somehow they did manage.

There is no allegation that anyone missed a mean.

Unidentified Justice: Mr. Hammer, may I just understand the thrust here?

Are you challenging their standing?

Mr. Hammer: No, sir, I am not.

Unidentified Justice: Then what is the legal point you're making?

Mr. Hammer: The point that I'm trying to make, Mr. Justice Stevens, is that the claim of necessity for public cash emergency assistance which is being advanced by the papers is one which is certainly not totally established by the record, to say the least.

Unidentified Justice: Well, will that prevent us from--

Mr. Hammer: It is important because ever since Dandridge v. Williams, this Court has held that a state or, indeed, Congress, when it appropriates its portion, need not take care of each and every possible need that a welfare recipient conceivably may have.

The thrust of these decisions--

Unidentified Justice: --But still what you are saying, then, is these people are not being denied what they seek because of their membership in the class of AFDC recipients but rather for some other reason?

Mr. Hammer: --No, sir.

My point is that the decisions of this Court which permit the granting of less than the established needs of a welfare recipient, I submit, not only demonstrates as a matter of law but demonstrates as a matter of fact that it is possible in such a situation as was presented here for people to get by.

Apparently they did get by, and I think it's important because--

Unidentified Justice: Were they denied assistance because they "got by"?

Mr. Hammer: --No, sir.

They were denied assistance--

Unidentified Justice: Well, if they weren't, what are you arguing it for?

Is it in this case?

Is it?

Mr. Hammer: --I think it forms an important context, part of the context of the case, Your Honor.

Unidentified Justice: Did you just think of it?

Mr. Hammer: No, sir, I didn't.

The action as brought in the district court sought to declare this statute unconstitutional as a denial of the equal protection of the laws.

There was also a claim that it violated the Supremacy Clause of Article VI of the Federal Constitution.

An injunction against enforcement was sought.

In addition, there was a claim of bad faith enforcement so that damages was also claimed.

The basis of this was the Second Circuit's decision in Lynch against Philbrook, the Seventh Circuit's decision in Mandley against Trainer, which was reversed sub non, Quern against Mandley, and Williams against Wobemuth, a similar Third Circuit case.

This latter claim for damages was ultimately dropped.

Initially, since this Court had not yet decided Quern and there was room, certainly, for argument at the circuit level, the District Court, relying on the Second Circuit's Lynch case, held that the statutes violated the Supremacy Clause.

The Circuit affirmed upon the decision of the District Court.

At this point this Court had heard argument in Quern and we petitioned the Circuit for rehearing.

The Circuit held the petition until the decision in Quern came down and they sent the case back to the District Court for reconsideration in light of this Court's ruling.

Upon remand, the District Court held, first, that the Supremacy Clause was not violated, citing Quern, and that of the three subdivisions, that the no cash provision violated equal protection.

However, the denial of replacement for lost or stolen case was upheld as a reasonable means of avoiding fraudulent claims and, likewise, the prohibition against duplication was upheld as a reasonable means of determining what emergencies were to be handled.

The Circuit heard the case again, this time upon the appeal of plaintiffs.

The Circuit upheld us on Supremacy Clause grounds, but reversed the District Court on the issue of lost or stolen cash, claiming that there was no reasonable basis shown to treat AFDC people differently from others.

The Circuit affirmed on the issue of the no cash.

This time, however, with respect to the replacement provision the District Court's decision was not appealed, so that the District Court decision on replacement of a grant stands as the law in the case.

What I should like to discuss during the time allotted to me is basically three points... that under the authority of decisions such as Dandridge the non-duplication provisions being as they are a reasonable exercise of the state's discretion as to how its money should be allotted covers essentially the entire issue raised by the plaintiffs.

To a certain extent, the statute is redundant because if you say in our submission that you need not duplicate a regular grant, by the same token, you need not duplicate the grant because part of it was lost or stolen.

Likewise, you need not duplicate part of a cash grant which was given to AFDC people.

Additionally, we view that the loss or theft provisions is an appropriate prophylactic measure to assure that fraudulent claims are not received or paid.

And, finally, we would submit from the record that the lower courts simply missed the point and erred in holding the AFDC people were treated substantively in any different way than non-AFDC people.

The only evidence in the record was an affidavit submitted by the state and it was never controverted by the plaintiffs in any respect.

Unidentified Justice: Well, I take it the Court of Appeals disagreed with you.

Mr. Hammer: They disagreed, Your Honor, but--

Unidentified Justice: And it's... on purely a matter of state law, isn't it a matter... it's a construction of the state statute.

Mr. Hammer: --I submit, Your Honor, that there's no real accurate construction on what state--

Unidentified Justice: Well, you might say they made a mistake, but don't we usually take the Court of Appeals' word on the construction of state law?

Mr. Hammer: --That may be true, Your Honor, but the problem here is that on the face of the cases relied upon both by the plaintiffs and by the Court of Appeals, it is far from clear that state law is what they say it is.

Unidentified Justice: Well, they thought it was plain on the face of the statute.

Mr. Hammer: Under the circumstances, Your Honor--

Unidentified Justice: And your answer is well, we haven't construed it that way and the Court of Appeals should be bound by your construction.

Mr. Hammer: --They should, Your Honor, have given more deference to the administrative construction.

Certainly if they had any doubts, they should not have relied either on my say-so or my learned friend's, but should have remanded for a hearing.

Chief Justice Burger: We will resume there at 1:00, counsel.

Mr. Hammer: Thank you, Your Honor.

Chief Justice Burger: You may resume, counsel.

ORAL ARGUMENT OF ROBERT S. HAMMER, ESQ. -- Resumed

Mr. Hammer: Thank you, Mr. Chief Justice.

If the Court please, I should like to follow up on the question that Mr. Justice White posed Just before we recessed.

If I may, I would like to invite the Court's attention to pages 16-A and 17-A of the jurisdictional statement, which contains the opinion of the Court of Appeals.

And one will see that what the Court did and, I submit, erroneously, they have claimed... the Court held that Mr. Hickey's affidavit was not supported by the record.

Indeed, Mr. Hickey's affidavit is the record.

There's nothing else.

As to its interpretation of state law, the cases relied upon by the Court of Appeals include cases which interpreted the old regulation that was replaced by the statute as well as regulations... I'm sorry, as well as other cases which followed it.

And these cases confirmed our position that the statute has been interpreted generously by... certainly by the lower courts in New York.

There has been no definitive Court of Appeals ruling since Jones against Berman.

Unidentified Justice: Well, the... as I understand the Court of Appeals, it says that your position is contrary to the plain language of the statute.

That's what it says.

Mr. Hammer: Well, Jones against Berman... the Court of Appeals... you're speaking now of the Second Circuit.

Unidentified Justice: I'm just asking you, don't you understand it to have held that your position is contrary to to the plain language of the statute?

That's what it says.

Mr. Hammer: That's what they say, Your Honor.

Unidentified Justice: Then we should--

--Why should that bother you?

Mr. Hammer: Your Honor, it doesn't bother because I do press the point.

I submit that the Court of Appeals was wrong.

That's why we're here.

The Court of Appeals was wrong because it ignored Rule 56(e).

They were wrong because they misread state decisional law.

Unidentified Justice: Well, you're saying our scope of review is broader if they make an error of law than they make an error of fact.

Mr. Hammer: Obviously, Your Honor, and this is certainly, I would submit, is an error of law, both error of misinterpretation of state law and an error of misapplication of Rule 56(e).

Unidentified Justice: Well, how can you account for three New York Judges making that mistake?

All three of them had considerable experience with New York law, didn't they?

Mr. Hammer: You're speaking of the Circuit Judges, Your Honor.

Unidentified Justice: Yes, sir... all three of them.

All three of them practice right in New York City.

Mr. Hammer: That may be so, Your Honor, but even so they are not infallible.

Unidentified Justice: It may be so.

That's the record.

Mr. Hammer: It does not mean that they are infallible upon issues of interpretation of state law.

Unidentified Justice: They are less fallible than you.

I suppose they were not specialists in welfare law.

Mr. Hammer: No, sir.

As of the members of the Court, Judge Kerse practiced on Wall Street, Judge Feinberg, the Chief Judge, has been on... while he's had a number of welfare cases upon which he has sat, and Judge Adelstein.

They've all had these cases, but insofar as the particular point of law is concerned, I think their decision has to be looked upon upon its own merits, not because they may be--

Unidentified Justice: I don't know of... who on this bench has practiced welfare law?

I don't know either.

You need welfare lawyers as judges?

Mr. Hammer: --Not necessarily, Your Honor, but it is a specialty.

All I am saying is not that it's necessary to have a patent lawyer to decide a patent case or a securities lawyer to decide a securities case.

All I am saying is that simply because they are experienced New York judges does not make their decision sacrosanct, with all due respect to them... and I have the utmost personal respect for the three individuals concerned.

I submit they were wrong simply because they misapplied a Federal rule and they misinterpreted the governing... such state decisional law as is available.

Unidentified Justice: Meaning what case, counsel?

Mr. Hammer: They misinterpreted... they first misrelied upon Jones against Berman because it predated the statute and the cases of Nazaro, of Orr v. Shang.

All these indicated that in administrative practice the state was interpreting the language much more generously than the face of the statute might suggest.

Maybe the welfare officials were wrong.

Maybe they were being too generous with the public purse, but the fact remains that there seemed to be an indication, at least in the lower courts, Justice O'Connor that these people and members of the class who are represented here today under certain circumstances would be getting emergency cash assistance.

Unidentified Justice: But not if they lost the check, is that right?

Mr. Hammer: On that I would say there is no question, Your Honor, they would not get it.

Unidentified Justice: And all of these plaintiffs involve that situation, is that right?

Mr. Hammer: That's correct.

Unidentified Justice: So every one of the people in the class before us alleged they had lost the check or cash.

Mr. Hammer: They had lost the proceeds.

If it were simply a lost check, the piece of paper would be replaced without any difficulty, but we're talking now about the cash.

Unidentified Justice: The proceeds, the cash.

And under an uncontested rule of New York law, they were ineligible, then, for relief?

Mr. Hammer: That's correct.

Unidentified Justice: And none of them ever got any further than challenging that first rule about the replacement of the proceeds of a check, as I understand it.

They didn't actually get to the point of applying for cash relief?

Mr. Hammer: Well, they did apply for cash.

They applied for cash and the welfare officials turned them down on the ground that the new amendment said you may not replace... you may not get cash because you're an AFDC recipient and you may not get cash because you are replacing part of your regular recurring grant.

Unidentified Justice: So they were turned down on both grounds.

Mr. Hammer: Plus the additional ground that... a somewhat redundant ground of subdivision (f) that they could not replace a grant in general or duplicate a grant.

Unidentified Justice: Mr. Hammer, let me see if I understand your argument.

As I read the Court of Appeals opinion, they said that you didn't content there was a rational basis for the discrimination but, rather, you said there was no discrimination.

Mr. Hammer: That's correct.

Unidentified Justice: And you do now agree that because they are AFDC beneficiaries they can't get cash.

Mr. Hammer: That's right.

Unidentified Justice: Are you arguing that no other citizen of New York gets cash?

Mr. Hammer: Our contention is... and this is the Hickey affidavit... someone, because the cash that is sought to be replaced is part of the regular recurring grant they are treated no differently than other categorical recipients or non-recipients of public assistance who get... who get cash because whatever class you fall into you get it only once.

You cannot get it twice.

This is the whole point.

Unidentified Justice: But am I correct in believing that some non-AFDC recipients can get cash pursuant to this statute?

Mr. Hammer: They get cash pursuant to the statute as emergency assistance because it is for an emergency rather than for the replacement of the regular recurring grant.

This is the nub of the argument against allowing AFDC recipients to get cash.

The AFDC recipient gets cash as part of the regular grant.

If the AFDC recipient were to get the cash as emergency assistance on top of it, the emergency assistance program would then, contrary to the intent of the legislature, become a supplement to AFDC rather than emergencies and this is what, as I understand the Court recognize in the Quern case, that the states were free to tailor the emergency assistance programs to their own desires, to decide what emergencies were to be covered and, indeed, the Court in its opinion alluded to the New York program.

Unidentified Justice: I have to confess I don't thoroughly follow your argument.

May I just try again in a way?

Are they, these people, denied cash because of this statutory provision?

Mr. Hammer: AFDC recipients?

Unidentified Justice: Yes.

Mr. Hammer: Yes.

Unidentified Justice: And other people who are not AFDC recipients may get cash.

Mr. Hammer: That's correct.

Unidentified Justice: Now why is that not a difference in treatment?

Mr. Hammer: It's not an invidious discrimination.

Unidentified Justice: Well, then, forget invidious.

Is there any difference at all in the treatment?

Now it seems to me you've said one gets cash and the other does not.

Mr. Hammer: The--

Unidentified Justice: Because if there's a difference, the Court of Appeals said, if I read the opinion correctly, you haven't even offered any rational explanation for the difference.

Your argument, rather, is there is no difference, but you just admitted there was a difference.

Mr. Hammer: --What we're saying is that when you compare the various categories of assistance... and this is, again, I am referring to the affidavit of Mr. Hickey and I think it's at 161-A of the joint appendix... he points out that whatever the class of recipient, one may get cash, the other may get services in kind.

To the extent that the AFDC recipient does not get cash it is because the AFDC recipient has already gotten cash as part of a recurring grant.

Unidentified Justice: But if he was some other kind of public beneficiary, he would have already gotten cash pursuant to some other grant.

How does that differentiate it?

I don't understand it.

Mr. Hammer: Well, in this case the statute would preclude any beneficiary of public assistance, whether it be home relief or aid to dependent children.

Unidentified Justice: Well, now are you saying no one can get cash?

Mr. Hammer: In essence--

Unidentified Justice: A minute ago you said others could.

I just really don't understand your argument.

Mr. Hammer: --The non--

Unidentified Justice: You're saying, are you not, that people other than welfare recipients can get cash.

Mr. Hammer: --That's correct, because--

Unidentified Justice: But no welfare recipient under any categorical program can get additional emergency cash?

Mr. Hammer: --That is correct, Your Honor.

And that is in keeping with the philosophy that this is for emergencies and not to act as the insurance policy for lost cash or a supplement to the regular recurring grant.

Unidentified Justice: Can a welfare recipient not also have an emergency?

Mr. Hammer: That's correct, of course.

But the emergencies that are covered are emergency services.

They are covered as, in some cases they are covered under the AFDC program itself as advance grants, in the case of special grants to avoid utility turnoffs or evictions, so that what is the net result--

Unidentified Justice: Are you saying basically that a welfare recipient faced with an emergency, while they might not get cash, can be given other forms of relief to get them out of the emergency?

Mr. Hammer: --That's quite so.

They can be given certain services in kind.

I must say, however, there are some situations where the emergency simply will not be covered, just as under... and we submit that this is lawful since just as under the Dandridge and the cases that followed it a state need not take care of every certified need that a welfare recipient may have.

With the Court's permission, I should like to reserve the remainder of my time.

Unidentified Justice: Just one question.

You can answer it yes or no.

Is is your position that where the interests of children, minor children, are involved, the state is more generous than it is where minor children are not involved?

Is that it?

That's yes or no.

Mr. Hammer: I wish I could answer it yes or no, Your Honor.

The program... the emergency assistance program is one which deals with minor children by definition--

Unidentified Justice: And the state... are you arguing the state is more generous with respect to them than with respect to cases where minor children are not involved?

Mr. Hammer: --I think the state is equally generous and equally penurious in both, with respect to both classes.

Chief Justice Burger: Mr. Schwartz?

ORAL ARGUMENT OF MARTIN A. SCHWARTZ, ESQ. ON BEHALF OF APPELLEES

Mr. Schwartz: Mr. Chief Justice, and may it please the Court, at the outset I think it's important to clarify what I think may be two misconceptions.

One of the state statutes in this case specifically singles out AFDC families that are... those are the families where there is an absent or a disabled parent with children... the automatic denial of cash emergency assistance in any circumstances.

The restriction that is placed in the statute to emergency services means that these families cannot get emergency assistance in the form of cash.

They cannot get payments in kind.

They cannot get voucher payments.

Now, a home relief family who is also in receipt of public assistance and, I might add, same exact level of benefits as an AFDC family, are eligible for emergency assistance in the form of cash or services... indeed, cash and services.

These families, Mr. Chief Justice, to respond to your question, typically in New York consist of intact families with children.

So in terms of whether we are talking about different treatment of families with or without children, I don't see that as being a factor here.

I think what Mr. Hammer's argument is is that AFDC families, while not eligible for cash emergency assistance, are eligible for a special grant under New York's public assistance program.

Unidentified Justice: Are home relief families ineligible for AFDC assistance?

Mr. Schwartz: They are ineligible for AFDC assistance, Your Honor, but they are equally eligible for the special grant under section 131 of the New York Social Services law.

Unidentified Justice: That's the cash grant.

Mr. Schwartz: It is a cash grant, Your Honor.

If one looks to the statute authorizing the cash grant--

Unidentified Justice: Is that because there are minor children involved?

Mr. Schwartz: --The statute that authorizes the special grants is not limited to families with or without minor children.

It includes potentially al welfare recipients in the State of New York.

Unidentified Justice: Well, where is the disparate treatment on which the equal protection rests?

Mr. Schwartz: This disparate treatment comes about because this special grant statute is much more limited than the emergency assistance statute.

The language of the special grant statute that pertains to emergency situations is quite clear in section 131-A, subdivision 6.

Unidentified Justice: Where is it?

Where is it in these papers?

Mr. Schwartz: The state has set it forth in their brief, Your Honor.

Unidentified Justice: In the jurisdictional statement?

In the jurisdictional statement or the brief?

Page five of the jurisdictional--

--No, of the brief.

Mr. Schwartz: It's page--

Unidentified Justice: Five.

Mr. Schwartz: --Five, towards the bottom of the page.

The statute refers to special grants for the replacement of necessary furniture and clothing and then goes on, in cases of fire, flood or other like catastrophe.

Well, the question arose in the New Yor State courts, what is meant by this phrase "other like catastrophe".

The New York Court of Appeals ha construed that provision as including only natura events and, therefore, excluding a man-made catastrophe such as a burglary.

The lower New York State courts have also construed this provision in a similar vein as excluding the intentional destruction of property.

Now these are events, emergency events, for which home relief and non-recipient families in New York--

Unidentified Justice: You mean non-AFDC recipients--

Mr. Schwartz: --Non-AFDC recipient families, as well as non-recipient families may receive emergency assistance in New York in any form.

Now there's another important difference.

Unidentified Justice: --Under what statute is that?

Mr. Schwartz: Under 350(j), the statute that authorizes emergency assistance.

Unidentified Justice: Now wait a minute.

350(j) is at page three of the State's brief, is that right?

Mr. Schwartz: It starts on the bottom of page three, Your Honor.

Unidentified Justice: All right.

Mr. Schwartz: There is no restriction in this case that would make a family that was a victim of a man-made catastrophe ineligible for emergency assistance.

Now there is a second important difference between the special grant statute and the emergency assistance statute.

The special grant statute is limited to losses of furniture and clothing.

Again, there is no such limitation in the state's emergency assistance statute.

The emergency assistance statute, for example, would cover such needs as shelter, food and medicine, all of which are excluded from the special grant provision.

So all that the Circuit Court of Appeals did is to look at these two provisions, look if you don't have to go much further than the plain language of them and say that they are simply not co-terminate with each other.

Now the fact that the state submits an affidavit from an official that seeks to conflict with the plain language of the statute I don't think calls for a different result.

Unidentified Justice: Well, the interpretation put on it by the official was different then the Court of Appeals.

Mr. Schwartz: It was different your Honor, but--

Unidentified Justice: And if you accepted him... if you accepted his construction, would you say there was no difference between the two classes?

Mr. Schwartz: --If you accepted the construction that AFDC families get special grants for the very same things that every other family gets emergency assistance for--

Unidentified Justice: There is no difference there.

Mr. Schwartz: --I would say there is no difference, with one important exception that was pointed out by the Secretary of the Department of Health and Human Services in his amicus brief in the Court of Appeals.

That is, the emergency assistance program was enacted originally primarily to meet prompt needs.

In fact, the Federal regulations contain a requirement that emergency assistance be provided forthwith.

There is no similar time requirement with respect to special grants.

Other than that timing difference, I would say yes.

If the timing was the same, I would have no problem, I don't think.

Unidentified Justice: Was the administrative construction offered in this affidavit supported by any New York cases in the--

Mr. Schwartz: Absolutely not.

Unidentified Justice: --In the lower courts or anyplace else?

Mr. Schwartz: Absolutely not.

In fact, it's quite inconsistent with the decision of the New York Court of Appeals in the Matter of Howard v. Wyman.

Unidentified Justice: And you have cited that.

Mr. Schwartz: Which we have cited, and which in a footnote in that decision specifically indicated that there may well be a distinction between emergency assistance on the one hand and special grants on the other hand.

Unidentified Justice: The Court of Appeals didn't rely on that, I think.

They just said it was a plain language.

Mr. Schwartz: The Court of Appeals did cite the Matter of Howard v. Wyman because the term "catastrophe" in the special grant statute did require construction by New York's highest court and did get that construction.

Unidentified Justice: Mr. Schwartz, if one were to read the Court of Appeals opinion as simply saying that it disregarded the Hickey affidavit because the affidavit was contrary to the plain language of the statute, would you regard that as a holding on New York state law of the kind that we ordinarily defer to a Court of Appeals?

Mr. Schwartz: Yes, I would, absolutely, Your Honor.

The situation as I see it comes Plaintiffs are denied emergency assistance under a statute which on its face singles out AFDC families for the automatic denial of emergency assistance.

The plaintiffs here didn't get emergency assistance.

They also did not get a special grant, which is significant.

They weren't offered a special grant.

They went away with nothing.

Now the plaintiffs come into court and say that statute discriminates against AFDC families in violation of the Social Security Act and the Equal Protection Clause, and the state comes back as a defense and says no, in fact there is no discrimination because if one were to look to the state law you have this other provision that covers AFDC families.

And all the District Court did, and the Circuit Court did, was say well, your reading of that state special grant provision is incorrect.

It obviously doesn't cover everything that's within the emergency assistance statute.

Unidentified Justice: You are familiar, as most judges are, I suppose, any number of state statutes or federal statutes that haven't been ultimately administratively construed just in accordance with the way they are written, and I'm somewhat troubled.

If that's Court of Appeals meant is to say how can you construe the statute this way, it's contrary to its language, whether or not this Court of Appeals shouldn't have given more deference to the affidavit in the absence of any counter-affidavit that you submitted.

Mr. Schwartz: First of all, the affidavit, as I read it, is nothing more than a self-serving, argumentative point of law.

Unidentified Justice: Any good affidavit is self-serving.

Mr. Schwartz: But it doesn't contain any factual statements.

It's a question of what the State Commissioner thinks the law of the State of New York is.

More importantly, these--

Unidentified Justice: Well, don't you ordinarily give some deference to the Commissioner's view of what the law is if he is charged with interpreting it?

Mr. Schwartz: --You ordinarily would, Your Honor, but not in a situation like this, were (a) the statute is clear on its face and (b) where it has already been construed by the highest court in the state.

And if we have a situation where we have a clear state statute and the New York Court of Appeals has construed it, it seems to me that the State welfare commissioner can't come before the court and say well, this statute simply means, in our minds, something else.

That would work havoc in terms of what state law means and what would happen when state laws like this are challenged in Federal court.

Unidentified Justice: Well, you could argue, I suppose, if the law were ambiguous on its face you should give some deference.

Mr. Schwartz: That's exactly my point.

Unidentified Justice: But the Court of Appeals said it i clear as a bell.

Mr. Schwartz: Not only has the Court of Appeals said it, but the District Court has reached the same conclusion and for that matter, Your Honors, the Secretary of Health and Human Services in their amicus brief says this is an obviously discriminatory provision, and they have expertise in this matter.

Unidentified Justice: But if... do you think we have to defer to a Court of Apeals statement that a law is clear on its face if we don't think it is... if we don't happen to agree that it is clear on its face?

Mr. Schwartz: I'm not arguing--

Unidentified Justice: I don't know of any examples like that.

Mr. Schwartz: --I'm not arguing that the analysis of the Court of Appeals is binding on this Court.

But--

Unidentified Justice: No, no.

Even if it were ambiguous or anything else, it wouldn't be binding, we could reverse them on that, but we normally don't.

Mr. Schwartz: --I agree.

We have cited Bishop v. Wood and a consistent line of cases that preceeded it.

In fact, the decision that post-dated it, Runyon v. McCrary, which stand for the proposition what where the constitutional question depends for its resolution, as it does here, upon the analysis of state law, and the lowe Federal court judges are in agreement as to what the state law and, moreover, where their analysis is supported by the decision of the highest court in the state, the rule has been that this Court normally gives deference to the construction of the state law of the lower Federal court judges.

Now that's not an ironclad rule, but I submit that it reflects a strong policy and is based on the common sense proposition that lower Federal court judges just simply deal with a particular state's law more often and are somewhat closer to it than this Court is.

Unidentified Justice: What was the concrete dispute between the claimant here and the state?

Mr. Schwartz: Well, there were four plaintiffs in this case.

Unidentified Justice: Well, what did they want that they didn't get?

Mr. Schwartz: They requested in three of the cases emergency assistance to replace public assistance funds which had either been lost or stolen.

In the fourth case... now there's a fourth case which is significant here.

In the case of Plaintiff Parrish, she came back from spending her day to find the family's apartment ransacked and the family's public assistance cash and food stolen, and she requested emergency assistance to replace the stolen cash and food.

Unidentified Justice: Let me pursue this.

Suppose that one class under the state law is given A and B and another class is given A.

And so there's a difference in treatment and the state doesn't offer any explanation and so the Court declares that there is a denial of equal protection of the law.

Now you wouldn't say the statute is unconstitutional on its face, would you?

You'd just say that failure to extend B to both classes is unconstitutional.

You certainly wouldn't strike it down on its face.

Mr. Schwartz: This gets to the problem of the remedy.

Unidentified Justice: No, no, no, it does not.

I would think that it gets to the problem of the remedy if you said that you can't give either class B or you give both class B, but here to the extent that the AFDC people ge A just like the other class does, I don't understand why you strike it down on its face.

Mr. Schwartz: The reason I disagree is that I think the state has different options here of curing the discrimination.

For example, the state could say no emergency assistance to anybody and that would cure the discrimination.

Or, the state could say emergency services only to everybody.

Unidentified Justice: Yes, but I would think you would strike down a statute... a state statute... only to the extent of the discrimination.

Mr. Schwartz: Well, but the statute that was struck down here, Your Honors, on its face reflects that discrimination.

The statute in two specific subsections state that AFDC families are ineligible for cash emergency assistance and are eligible only for emergency services.

Now that on the face of the statute creates clear discriminatory classification and the problem, if there is a problem, only arises here because the state commissioner comes back and says well, we know we have these two subsections and they are very clear on their face, but nevertheless we're going to point you to some other statute which in effect operates as a defense, as I see it, to the claimed unconstitutionality of this statute.

Unidentified Justice: Well, counsel, you would agree, wouldn't you, that a state can consider the entire state scheme in determining whether welfare recipients are being given appropriate forms of relief.

They don't have to provide for everything in the same section of the statute, certainly.

Mr. Schwartz: I agree, Your Honor.

I agree.

Unidentified Justice: So that's a fair defense, assuming they are correct as to what is meant by the other sections.

Mr. Schwartz: Well, I don't think in this case it's a fair defense.

I think it's potentially a fair defense in a given case.

I don't think it's a fair defense in this case for two reasons.

One, the scope is not the same.

Unidentified Justice: Well, you have been talking about that.

Mr. Schwartz: Right.

Unidentified Justice: Now for you to win, for your clients to win, don't you have to strike down subsections (c), (e) and (f) of section 350?

Don't you have to strike down all three because it... subsection (c) refers to the AFDC people, but subsection (f), for example, refers to all people who are on public assistance grants.

Mr. Schwartz: Okay.

Now I agree with Your Honor with respect to subsections (c) and (e), but I disagree with respect to subsection (f), and the reason for my disagreement is this: the district court in its opinion which is annexed to the jurisdictional statement, and the relevant page of the opinion that I'm concerned with is 44-A of the appendix of the jurisdictional statement, the District Court construed this provision as having as its purpose preventing recipients of public assistance from simply claiming that we have used up our public assistance and we need added assistance now to augment the ongoing assistance grant.

The District Court said this was the purpose of the duplication provision.

However, the District Court went further and said but it's clear that the duplication provision should not be read as precluding emergency assistance to public assistance families who are indeed faced with a crisis event or emergency situation.

I submit that that analysis by the District Court is correct.

It reflects the argument that the state has been making between the supplementation of a grant, which the state says it's its interest in not making under the emergency assistance program.

Unidentified Justice: And the state hasn't challenged that interpretation.

Mr. Schwartz: The state has not challenged that interpretation and not only have they not challenged it, but indeed they acknowledged that the purpose of the restrictions is to limit emergency assistance to crisis situations.

And that's reflected in this analysis.

More importantly, if you gave the duplication provision a literal reading and read it to its fullest extent, it would make unnecessary the loss-theft provision and the cash-services provision.

Unidentified Justice: As a matter of collateral interest, how does the state go about determining whether the alleged lost or stolen cash was used to buy lottery tickets or to bet on the horses or to use in the local crap game down the alley?

Mr. Schwartz: If the question is how do they determine a loss or theft, whether the loss or theft occurred, the state, of course, has the power to investigate an application for emergency assistance.

Unidentified Justice: How many such applications are there a year?

Mr. Schwartz: There's nothing in the record, Your Honor.

Unidentified Justice: According to Mr. Califano's report of some years ago, there are hundreds of thousands o them.

Is that right?

Mr. Schwartz: I can't say, and it's not i the record.

But with respect--

Unidentified Justice: Realistically is there any way the state can check on it?

Mr. Schwartz: --Yes, Your Honor.

The state for example, could insist that the recipient report a claim theft to the police department as a prerequisite for getting emergency assistance.

The state commissioner can check.

Unidentified Justice: How much of a check is that?

Mr. Schwartz: The state can check the police report, can interview the recipient, can make a home visit, for that matter.

But, Your Honor, that really misses the essential argument that we make with respect to the loss-theft provision, because the State of New York does provide emergency assistance in cases of loss or theft of every other type of income other than public assistance, and that includes a wide array of public benefits, including Social Security, unemployment compensation, workers' compensation, public retirement benefits, as well as the loss or theft of private income, such as wages and support payments.

Now I submit to this court that the state--

Unidentified Justice: Does that include the loss of a private pension?

Mr. Schwartz: --Yes, it does, Your Honor.

Now I submit, and I think it's significant, that the state's ability to detect a fraudulent claim is in fact greater in the case of the non-recipient who claims that a loss or theft has created destitution than in the case of the recipient.

And it's for this reason.

In the case of the recipient of public assistance, the Department of Social Services in the ordinary process of determining ongoing eligibility for public assistance and free of the crisis pressure that surrounds an application for emergency assistance, has already determined a large number of the indicia of eligibility for public assistance, including the applicant's identity, the applicant's residence, available income and resources, shelter needs, alternative sources of support.

In the case of the non-recipient that claims a loss or theft has rendered me destitute, the Department of Social Services must first make all these determinations in the first instance.

So we recognize that the state does indeed have a legitimate interest in preventing fraudulent claims.

We could not take any other position.

But our claim is that this disparity in treatment between public assistance recipients who claim a loss or theft on the one hand and non-recipients who are a group of families who claim destitution and who are given different treatment in that their applications for emergency assistance are given individual treatment is not supported by any difference in detecting fraud.

Unidentified Justice: Mr. Schwartz, the District Court disagreed with you about the checks.

Mr. Schwartz: The District Court disagreed on this.

Unidentified Justice: And they had a reason for disagreeing.

In the Court of Appeal, the only thing the Court of Appeals really said is that we do not agree with the District Court that considerations of administrative efficiency are sufficiently compelling to sustain the lines drawn by the statute.

Well, since when is the rational basis equal protection test... since when does it require something that is sufficiently compelling rather than rational?

Mr. Schwartz: That... I agree with Your Honor, but I think that that was not the basis of the Court of Appeals decision, that the basis of the Court of Appeals decision is found on page 18-A of the appendix to the jurisdictional statement, whether the Court said that there is nothing in the record to establish that public assistance recipients have a greater propensity than others for asserting fraudulent claims.

And, indeed, the Court of Appeals cited Weinberger v. Salfi, cited Dandridge v.--

Unidentified Justice: Well, isn't that a sort be... isn't that a rather factual determination by the District Court as to this propensity or whatever it is?

The District Court found that there were considerations of administrative convenience and efficiency and for rational basis purposes I don't know what case around here says that if the rational basis test applies administrative efficiency is not enough.

Mr. Schwartz: --The District Court did not make any finding of fact that there would be a greater administrative burden.

Unidentified Justice: Well, what was the Court of Appeals referring to?

They read the District Court as holding that.

Mr. Schwartz: The problem with the District Court's decision is that it, in my opinion, is that it did not focus on the two classes.

The District Court's opinion simply said that the... it is a legitimate state interest to seek to prevent fraudulent claims of loss or theft, and we find that this is sufficient to justify the automatic denial.

The Court of Appeals said, well, we agree.

The state does have a legitimate interest in seeking to prevent fraudulent claims of loss or theft.

It would be administratively burdensome and difficult to make these claims, but the same administrative burden and expense lies with respect to the favored class.

Unidentified Justice: Well, I think perhaps the Court of Appeals really just went on to say the District Court thought there was administrative efficiency considerations, but we just disagree.

There aren't any.

Mr. Schwartz: That's not how I read it, Your Honor.

I think what the Court of Appeals is saying is that there are problems with respect to--

Unidentified Justice: I know, but there's no more administrative convenience in the one case than in the other.

Mr. Schwartz: --That's my point.

Unidentified Justice: That's what the Court of Appeals held.

Mr. Schwartz: Yes.

That's my point.

And the District Court did not say anything to the contrary.

The District Court simply made a general statement that the state does have an interest in avoiding administrative burdens and expenses in situations like this.

We don't quarrel with that.

If I might just take the very few minutes I have remaining, we have raised, in addition to the constitutional claim, a federal statutory claim, and we have raised it throughout this litigation.

My adversary has chosen not to address it, but I submit that it's a significant claim and it provides a basis upon which this Court can affirm the judgment of the Court of Appeals without reaching the equal protection claim.

Unidentified Justice: But it's still a constitutional claim.

Mr. Schwartz: Well, it's a Supremacy Clause claim.

Unidentified Justice: Well, that's still a constitutional claim.

Mr. Schwartz: I agree.

In the old three-judge court days it used to be referred to as--

Unidentified Justice: Well, I know, but those... that was a strange doctrine anyway.

Mr. Schwartz: --Well, the only point I'd like to stress is that six months after this Court's decision in Quern the Secretary did indeed issue an action transmittal and in that action transmittal acknowledged the holding in Quern, said that the states do have broad discretion in shaping their emergency assistance programs, but that the states must include AFDC families in their emergency assistance program.

Unidentified Justice: So you are saying we should... that was issued after this case was decided below?

Mr. Schwartz: No, it was issued during the litigation of this case.

It's been in the record all along.

It was submitted to the District Court.

Th Circuit Court had the benefit of it.

Unidentified Justice: The Court of Appeals found it was inconsistent with Quern against Mandley.

Mr. Schwartz: Yes.

The Court of Appeals did come to that conclusion.

We disagree with that.

We've argued it, I believe, fully in our brief.

In addition to the action transmittal, the Secretary did submit a full amicus curiae brief to the Court of Appeals in which the Secretary came to the conclusion that under his equitable treatment regulation state discrimination in the EAF program against the neediest families, AFDC families, is inconsistent with Federal policy and, therefore, is unlawful.

And it's our position that this is a legitimate exercise of rulemaking by the Secretary and that the judgment should be affirmed on that basis.

Unidentified Justice: Mr. Schwartz, isn't it true that the analysis of that issue is really pretty much the same as the analysis of the constitutional issue, because the bottom line is whether it's arbitrary or not?

Mr. Schwartz: That... I disagree, with all due respect, Mr. Justice Stevens, because there is no reason why the equitable treatment regulation has got to be interpreted in the same manner as the rational basis standard under the equal protection clause.

Unidentified Justice: In other words, the content of arbitrariness could be somewhat broader as construed by the Secretary than it would be as construed under the Constitution.

Mr. Schwartz: It can be, and we have lodged documents with the Clerk of the Court which we also submitted to the Court of Appeals, in which the Commissioner of Social Security of HHS has taken the position that classifications in the emergency assistance program must be tailored to the purpose of the particular program and specifically rejected rational basis review.

Our position, very briefly, is that while states do indeed have broad discretion in shaping their emergency assistance programs, that discretion is not unlimited discretion and in many categorical programs where states do have broad discretion there is still room for reasonable rulemaking by the Secretary to ensure that state plans do not conflict with the purposes of the Federal Act.

Chief Justice Burger: Very well.

Mr. Schwartz: Thank you.

Chief Justice Burger: Do you have anything further, Mr. Hammer?

REBUTTAL ORAL ARGUMENT OF ROBERT S. HAMMER, ESQ. ON BEHALF OF APPELLANT

Mr. Hammer: Yes, with the Court's permission, I think, Mr. Chief Justice, you have touched upon a very sensitive and important point, that there is no practical way of verifying an actual loss or theft, whether it's with a--

Unidentified Justice: Well, then why doesn't the State of New York decline to do anything about any of those situations?

Mr. Hammer: --They--

Unidentified Justice: Then you wouldn't have an equal protection problem.

Mr. Hammer: --That's correct.

I think, however, it's not unreasonable to do it in the case of the public assistance recipient.

Indeed, counsel--

Unidentified Justice: On the theory that they are worse off than other people?

Mr. Hammer: --No, but just as the rich person is going to defraud the Internal Revenue, if there is going to be any larceny in the case of a poor person, it's going to be directed towards the welfare system and we have counsel's own admissions, which he cited in his motion--

Unidentified Justice: There isn't anybody else th welfare recipient can defraud, really, if that's the source of all his income.

Mr. Hammer: --That's right.

So that if there is the potential for fraud there, it's not unreasonable for the state to say let's try to prevent it, and--

Unidentified Justice: Well, why do you select one group of welfare recipients and not another?

I mean, isn't the problem the same for two different groups of welfare recipients?

Mr. Hammer: --In this case, Your Honor, no distinction is made between AFDC or Home Relief.

Unidentified Justice: Well, I guess that's the issue on the first--

Mr. Hammer: In part.

As for the Supremacy Clause, as counsel indicated, I have not addressed it specifically in my main brief.

We referred to it in the small reply brief to his motion to reaffirm.

For the reasons stated therein, we think (a) it is not properly before the Court and (b) it is not a meritorious claim, but in any event, I am more than happy and prepared to answer any questions on that point that the Court may have.

Chief Justice Burger: I think that's all.

Your time has expired.

Thank you, gentlemen.

The case is submitted.