Wheeler v. Montgomery Brief Amicus Curiae on Behalf of Appellants

    In the Supreme Court o f the 

United States
October T eem 1968

No. 634

Mae W heeler, et ah,

vs.

J ohn Montgomery, et al.,

Appellants,

Respondents.

On Appeal from the United States District Court 
for the Northern District of California

Amicus Curiae Brief on Behalf o f Appellants

T homas L. F ike 
T homas Schneider 
B urton Danziger 
David Nawi

1815 Telegraph Avenue 
Oakland, California 94612

Attorneys for Amicus Curiae, 
Legal Aid Society of 

Alameda County

S O R G  P R IN T IN G  C O M P A N Y  O F  C A L IF O R N IA , 3 4 6  F IR S T  S T R E E T , S A N  F R A N C IS C O  9 4 1 0 5



SUBJECT INDEX

Interest of Amicus Curiae, Legal Aid Society of Alameda 
County ........................................................................    1

Summary of Argument ........................................   3

Argument.......................................................................................... 6

I. The notice and informal conference provided by the 
challenged regulation prior to termination of benefits by 
a county welfare department do not afford the protec­
tions required by due process........................................... 6

A. There is no compelling public necessity or other
justification for the procedural inadequacies of the 
regulation.............................................  8

B. A  decision to terminate categorical aid benefits is
an adjudicatory act, requiring, as a minimum, ade­
quate notice, opportunity for confrontation and 
cross-examination, a decision based on evidence 
produced at a hearing, an impartial trier of fact, 
and a decision on the merits. The challenged regu­
lation provides none of these................................... 10
1. The regulation fails to provide adequate notice 10
2. The regulation provides no opportunity to test

the credibility and probative value of evidence 12
3. The regulation fails to reqire a decision based

on evidence produced at a hearing....................  13
4. The regulation fails to provide an impartial

trier of fa c t ..........................................................  14
5. The regulation fails to require a decision on

the merits..............................................................  16

C. The availability of a subsequent hearing does not
justify the elimination of an adequate prior 
hearing ........................................................................  17

II. The notice and informal conference provided by the 
challenged regulation prior to termination of categori­
cal aid benefits by a county welfare department do not 
afford the protection required by the California Legis­
lature .................................................................................... 22

Page



11 S u bje c t  I n d e x

Conclusion ........................................................................................ 28

Appendix A— California State Department of Social Welfare 
Public Social Services Manual Regulation 44-325 ...........App. 1

Appendix B—A Comparison of Certain Procedures of Selected 
Administrative Agencies...................................................... App. 11

Page

Appendix C— “ Opposition to Introduction of Additional Evi­
dence ’ ’ filed by California Attorney General in the Court of 
Appeal of the State of California in McCullough vs. 
Tei'zian....................................................................................App. 17



TABLE OF AUTHORITIES CITED

Cases Pages
Armstrong v. Manzo (1965) 380 U.S. 545 ................................... 9

Cafeteria & Restaurant Workers Union v. McElroy (1961)
367 U.S. 886 ....................................................... -................... 4, 8, 21

Carroll v. California Horse Racing Board (1940) 16 C.2d 164,
105 P.2d 110 ..............................................................................  23

Covert v. State Board of Equalization (1946) 29 C.2d 125, 173 
P.2d 545 .............................................. .......................................23, 25

Dixon v. Alabama State Board of Education (5 Cir. 1961) 294 
F.2d 150, Cert. Den 368 U.S. 930 ...........................8,14,19, 20, 21

Edwards v. California (1941) 314 U.S. 160............................ 9
Endler v. Schutzbank (1968) 68 C.2d 162, 436 P.2d 297, 65

Cal Rptr 297 .................................... -........................................  7, 8
English v. City of Long Beach (1950) 35 C.2d 155, 217 P.2d

22, 18 ALR 2d 547 ..................................................................  7,13
Escobedo v. State of California (1950) 35 C.2d 870, 222 P.2d 1 27

Fascination Inc. v. Hoover (1952) 39 C.2d 260, 246 P.2d 656 21

Goldberg v. Regents of University of California (1967) 248
C.A.2d 867, 57 Cal Rptr 463 ..................................................  21

Gonzalez v. Freeman (D.C. Cir. 1964) 334 F.2d 570 ..............  21
Greene v. McElroy (1959) 360 U.S. 474 ...........................7,12,13, 23

Hannah v. Larche (1960) 363 U.S. 420 .............-........................  7
Hornsby v. Allen (1964) 326 F.2d 605 .................................. 7,10, 21

I.C.C. v. Louisville & N.R. Co. (1912) 227 U.S. 8 8 ...........14,17, 21
In re Murchison (1955) 349 U.S. 133 ......................................  7

Keenan v. S.F. Unified School District (1950) 34 C.2d 708,
214 P.2d 382 .............................................................................. 26

Kelly v. Wyman (S.D.N.Y. 1968) 294 F.Supp. 893, probable 
jurisdiction noted sub nom Goldberg v. Kelly (1969) 37 
LW 3399 ................. .'................................ .......................6, 11, 14,15

La Prade v. Department of Water and Power (1945) 27 C.2d 
47, 162 P.2d 13 ....................................................................23, 25, 26



Mendoza v. Small Claims Ct. (1958) 49 C.2d 668, 321 P.2d 
9 ..............................................................................................17,18,19

iv  T able  of A u th orities  C ited

Pages

North American Cold Storage Company v. City of Chicago 
(1908) 211 U.S. 306 ..................................................................  16

Ohio Bell Telephone Co. v. P.U.C. (1936) 301 U.S. 292 .......7, 8,13

Parrish v. Civil Service Commission (1966) 66 C.2d 260, 425 
P.2d 223, 57 Cal Rptr 623 ......................................................  20

Ratliff v. Lampton (1948) 32 C.2d 226, 195 P.2d 792, 10 ARL
2d 826 ........................................................................ 23, 24, 25, 26, 27

Russell-Newman Manufacturing Co. v. N.L.R.B. (5 Cir. 1966)
370 F.2d 980 .................................................... .................. ......  7,10

Shaughnessy v. United States (1953) 345 U.S. 206 ...............  22
Shively v. Stewart (1966) 65 C.2d 475, 421 P.2d 65, 55 Cal

Rptr 217 ....................................................................................  21
Slochower v. Board of Education (1956) 350 U.S. 551 ...........  21
Sniadach v. Family Finance Corp. (1969) .......U.S........... , 37

LW 4520 .......... ...........................................................................  17
Sokol v. Public Utilities Commission (1966) 65 C.2d 247, 418

P.2d 265, 53 Cal Rptr 673 ...................................4, 8, 16, 17, 18, 19
Steen v. Board of Civil Service Commissioners (1945) 26 C.2d 

716, 160 P.2d 816 ............. ......... ...................................23, 25, 26, 27

Walker v. City of San Gabriel (1942) 20 C.2d 879, 129 P.2d,
349, 142 ALR 1383 .................................................................. 12, 25

Wasson v. Trowbridge (2 Cir. 1967) 382 F.2d 807 ...................  7,14
Willner v. Committee on Character and Fitness (1963) 373 

U.S. 96 ..................................... ................. .......................... ......  7,12

Constitution

United States Constitution, 14th Amendment........................... 3

Statutes

Calif. Code Civil Procedure
§ H 7 ( j )  ...................................................................................... 18,19
§ 1159 et seq................................................................................  19



T able  of A u th orities  C ited v

Calif. Welfare & Institutions Code
§ 10000 ...................................... ................................................. 22
§ 10600 .......................................................................................  22
§ 10950-10965 ............................................................................  4
§ 10950 et seq..........................................................................7, 24, 27
§ 11458 ..............   24
§ 12200 .......................................................... ......................... . 23
§ 12700 ........................................................................................ 23
§ 13750 ........................................................................................ 23

R egulations

Supreme Court Rules, Rule 42 ..................................................  3

U.S. Dept, of Health, Education and Welfare, Handbook of 
Public Assistance Administration (Federal Handbook)
§ 6200(k) .................................................................................... 9
§ 6200(j)  .................................................................................... 27
§ 6300(g) .................................................................................... 9
§ 6500(b) ...............    9

California State Department of Social Welfare 
Operations Manual

§§ 22-043—22-065 ..................................................................  27
Public Social Services Manual

§ 44-325.1 ............................    16
§ 44-325.421 ..............   16
§ 44-325.43 .......................................... 2, 3, 6,10,14, 17,19, 24, 26

Pages



In the Supreme Court o f the 
United States

October Term 1968

No. 634

Mae W heeler, et aL,

vs.

J ohn Montgomery, et al.,

Appellants,

Respondents.

On Appeal from the United States District Court 
for the Northern District of California

Amicus Curiae Brief on Behalf of Appellants

INTEREST OF AMICUS CURIAE, LEGAL AID SOCIETY 
OF ALAMEDA COUNTY

The Legal Aid Society of Alameda County is a non profit 
California corporation established in 1929 for the purpose 
of furnishing legal services to those residents of Alameda 
County who are unable to afford the services of private 
attorneys. Staff attorneys of the Society have training and 
experience in Welfare law. They are currently representing 
plaintiffs and respondents in McCullough v. Tersian,1 a

1. The record on appeal in McCullough v. Terzian, consisting 
of a “ Clerk’s Transcript on Appeal” , has been lodged with the 
Clerk of this court.. References to “ C.T.” in this brief are references 
to said “ Clerk’s Transcript” . Since this is an amicus curiae brief, 
the facts of the McCullough case are not before this Court, and it 
was thought unnecessary to file a formal record of the California 
State Court proceedings.



case now pending in the Court of Appeal of the State of 
California, First Appellate District, Division Three, 1 Civil 
No. 25830. At issue in that case is the validity with respect 
to California statutes and the California and United States 
Constitutions of the identical regulation passed on by the 
three judge court below and at issue herein, State Depart­
ment of Social Welfare Public Social Service Manual 44- 
325.43 (hereinafter referred to as PSS 44-325.43).

McCullough is a class action in which plaintiffs and re­
spondents represent all persons receiving public assistance 
under the categorical aid programs in the State of Cali­
fornia. Defendants and appellants are H rayr T erzian, Di­
rector of the Alameda County Welfare Department, and 
J ohn Montgomery, Director of the Department of Social 
Welfare of the State of California. Respondent Montgom­
ery was a defendant in the three-judge court below and is 
a respondent in the instant appeal.

The trial court in McCullough rendered judgment in 
favor of plaintiffs, which judgment declared PSS 44-325.43 
invalid “because and to the extent it does not provide a 
hearing with adequate procedural safeguards . . . prior to 
the withdrawal or termination of public assistance benefits 
under the [categorical aid] programs as required by State 
law and the United States and California Constitutions.” 
(C.T. 103:29-104:6)# The judgment further ordered de­
fendant Montgomery to provide categorical aid benefits to 
which recipients are otherwise entitled “until a decision, if 
any, of ineligibility is rendered” pursuant to the State “ fair 
hearing” or its equivalent.

Plaintiffs in McCullough have a direct interest in the out­
come of this litigation. Their claim, (and the decision of 
the State Trial Court) is based in part on the contention

2

See footnote 1, p. 1, supra.



that PSS 44-325.43 violates due process requirements of 
the Fourteenth Amendment of the United States Constitu­
tion, which is the very issue presented in the instant case. 
This Court’s decision on the scope of Fourteenth Amend­
ment due process will provide a minimum standard below 
which no state’s law, whether decisional or statutory, may 
fall. Furthermore, amicus has carefully studied the Cali­
fornia law as it bears on the sufficiency of the procedures 
at issue in the instant case, and has concluded that the 
State law, as well as federal, compels a reversal of the 
judgment of the District Court.

With the consent of both parties pursuant to Rule 42 of 
the Supreme Court Rules, Legal Aid Society of Alameda 
County respectfully submits its Amicus Curiae brief in 
support of appellants.

SUMMARY OF ARGUMENT
The District Court has upheld a regulation (PSS 44-325. 

43, reproduced in Appendix A) which prescribes the pro­
cedure followed in California before welfare benefits are 
withdrawn or withheld. The regulation applies only to re­
cipients of the “ categorical aids,” Aid to Families with 
Dependent Children (AFDC), Aid to the Blind (AB), Aid 
to the Disabled (ATD), and Old Age Assistance (OAS).

The regulation requires notice to the recipient, in writing, 
immediately after a decison is made to withhold aid and in 
no case later than three days before aid is actually with­
held. It further provides that the affected recipient will 
be given an opportunity within the three days to meet with 
a caseworker or other unspecified person to learn the nature 
and extent of the information upon which the withholding 
action is based, to provide an explanation, and to “ discuss 
the matter informally for purposes of clarification and, 
where possible, resolution.”

3



It does not provide adequate time to marshall or present 
contradicting evidence; it does not provide for the sub­
poena and cross-examination of witnesses; it does not pro­
vide for a review of the evidence by a clearly designated 
and impartial trier of fact; and it does not provide for a 
decision on the merits based solely on the record. In short 
it contains none of the procedural safeguards expressly 
included in the subsequent “ fair hearing” (Calif. Welfare 
and Institutions Code §§ 10950-10965 hereafter, W  & I 
Code) proceedings and generally contemplated by the re­
quirement of a hearing.

It is uncontroverted that the constitutional adequacy of 
a “ hearing” depends on the nature of the governmental 
function as well as the nature of the private interest in­
volved. Cafeteria and Restaurant Wothers Union v. Mc- 
Elroy (1961) 367 U.S. 886; Sokol v. Public Utilities Com­
mission (1966) 65 C.2d 247, 418 P.2d 265.

The District Court opinion is based on the assumption 
that the obvious procedural inadequacies of the regulation 
(and the error and hardship which necessarily flow there­
from) are justified by the availability of a subsequent hear­
ing at the state level after termination of benefits by the 
County (the fair hearing) and the competing public interest 
of time and expediency.

Amicus contends that notwithstanding the availability 
of a subsequent hearing due process requires an adequate 
hearing prior to the time official action takes effect. An ade­
quate hearing is one that preserves all the elements of an 
adjudicatory proceeding unless there is a compelling public 
interest that requires the omission of one or more elements 
of such a hearing. Further, common sense dictates that where 
one element of judicial practice is omitted from administra­

4



tive adjudication, compensating safeguards are all the more 
necessary. The challenged regulation, however, far from 
compensating for procedural deficiencies, compounds them, 
by eliminating nearly all of them. It provides an informal 
proceeding appropriate for ordinary social worker-client 
relationships, but totally inappropriate when the client and 
the welfare department have become adversaries. Welfare 
aid is usually withheld or terminated because of changed 
circumstances about which there is no disagreement. Rele­
vant here, however, are those cases in which the recipient 
denies an alleged change of circumstances. This is usually 
no mere misunderstanding that can be cleared up by in­
formal conferences among people of good will with common 
interests. It is a dispute about facts, the resolution of which 
has the profoundest consequence for the recipient. The tra­
ditional procedures that have developed in our courts are 
still the best way, and the only constitutional way, to assure 
justice to all parties in adversary positions.

The following pages argue that the state has shown no 
such compelling public necessity as would justify the pro­
cedural inadequacies of the challenged regulation. In the 
McCullough* case, in a motion before the California Court 
of Appeal, California’s Attorney General has expressly 
stated that costs are not in issue. (See Appendix C.) Other 
public interests, such as administrative convenience, are 
hardly “ compelling” .

The argument continues to show that three days notice 
provided for by the challenged regulation is insufficient to 
permit a recipient to prepare his case; that without subpoe­
na power, and without the right of confrontation and cross-

5

#See footnote 1, p. 1, supra, and text thereto.



examination, a hearing is not an adjudicatory procedure, 
but only a tool of discovery; that without a record, the per­
son who decides must decide on the basis of matters outside 
the record and may decide on a version of the evidence 
different from that which the recipient confronted; that the 
unnamed person in the welfare department who must de­
cide is likely to be partial, not impartial; and that in per­
mitting discontinuance of aid on the ground of “probable 
ineligibility” rather than “ ineligibility” California author­
izes a drastic result on vague and inadequate grounds.

Lastly, this brief argues that the California statute and 
ease law may require even greater protection for the re­
cipient than the United States Constitution, and, a priori, 
can require no less. The California Welfare and Institutions 
Code permits aid to be cancelled, suspended or revoked 
only “ for cause” or “ after investigation.” Previous Cali­
fornia interpretations of analogous language show that such 
language requires a hearing with all the usual procedural 
safeguards the word implies.

ARGUMENT
I. The Notice and informal Conference Provided by the Chal­

lenged Regulation Prior to Termination ©f Benefits by a County 
Welfare Department Do Not Afford the Protections Required 
by Due Process.

The District Court held that the informal conference pre­
scribed by PSS 44-325.43 is a constitutionally adequate 
“hearing” prior to termination of benefits, in the light of 
subsequent “ fair hearing” requirements. This decision not 
only conflicts with the decision in Kelly v. Wyman (S.D. 
N.Y. 1968) 294 F. Supp. 893, probable jurisdiction noted, 
sub. nom Goldberg v. Kelly, 37 LW  3399, but with basic 
constitutional principles.

6



An erroneous decision to terminate aid to a welfare 
recipient is disastrous to the individuals affected. Under 
California Welfare and Institutions Code (hereinafter re­
ferred to as W. & I. Code) Sections 10950 et seq. the review 
of such a decision does not stay its effect, and the review 
takes two months or longer. Since most recipients are under 
an incapacity which prevents them from supporting them­
selves (e.g. blindness, old age, infancy or medical disability) 
they will not have minimum subsistence for this period. 
The existence of a hearing subsequent to termination, there­
fore, affects neither the importance of the prior decision 
nor its basic adjudicatory character.

As a general rule, due process requires that such a deci­
sion be made in accordance with “ procedures which have 
traditionally been associated with the judicial process.” 
Hannah v. Larche (1960) 363 U.S. 420, 442. These pro­
cedures have been held to include adequate notice, Russell- 
Newman Manufacturing Go. v. N.L.R.B. (1966) 370 F.2d 
980; see, Hornsby v. Allen (1964) 326 F.2d 605, 608; the 
right to confrontation and cross-examination, Greene v. 
McElroy (1959) 360 U.S. 474; Willner v. Committee on 
Character and Fitness (1963) 373 U.S. 96; a decision based 
on evidence produced at a hearing, Ohio Bell Telephone 
Co. v. P.TJ.C. (1936) 301 U.S. 292; English v. City of Long 
Beach (1950) 35 C.2d 155, 217 P.2d 22; an impartial trier 
of fact, Wasson v. Trowbridge (1967) 382 F.2d 807; In re 
Murchison (1955) 349 U.S. 133; and a decision on the merits, 
Endler v. Schutzbank (196S) 68 C.2d 162, 436 P.2d 297.

Occasionally, where there is a compelling public inter­
est involved, one or more of these elements may be con­
stitutionally omitted. Absent considerations of compelling 
public necessity, however, due process requires the preser­
vation of all the elements of an adjudicatory proceeding

7



necessary for the protection of the interests affected. Cafe­
teria and Restaurant Workers v. McElroy (1961) 367 U.S. 
886; Sokol v. Public Utilities Commission (1966) 65 C.2d 
247, 418 P.2d 265; Dixon v. Alabama State Board of Educa­
tion (5 Cir. 1961) 294 F.2d 150. As is shown immediately 
below, there is no compelling public interest or other justi­
fication for the procedural inadequacies of the regulation. 
Thus, the hearing preceding the termination of aid to a 
welfare recipient must preserve all the traditional elements 
of the adjudicatory process. The regulation preserves none.

A. THERE IS NO COMPELLING PUBLIC NECESSITY OR OTHER JUSTIFICA­
TION FOR THE PROCEDURAL INADEQUACIES OF THE REGULATION.

The District Court does not specify what public interest 
it relies on to justify the obvious procedural deficiencies in 
the regulation. Mere administrative inconvenience to the 
state or counties, certainly, cannot justify the sacrifice of 
safeguards required by due process. Ohio Bell Telephone 
Company v. Public Utilities Com. (1937) 301 U.S. 292, 304- 
305; Endler v. S chut shank (1968) 68 C.2d 162, 180, 436 
P.2d 297. Since adequate hearings are already provided 
after action is taken, it can hardly be claimed that the pro­
vision of such hearings prior to action would impair the 
ability of the state and county departments from carrying 
out the functions for which they are responsible.

Perhaps of ultimate concern to the State is the question 
of cost.2 By providing for an ex parte determination of

2. In the case of McCulhugh v. Terzian, in the California Court 
of Appeal, the Attorney General of California filed a memorandum 
(Appendix C) opposing the introduction of additional evidence in 
that court, stating that “ cost to the State has not been put in issue.” 
The additional evidence offered was admittedly incomplete hut 
tended to show that costs to the State resulting from the State-wide 
order of the trial court was not significant.

8



probable ineligibility without any provision for contesting 
that determination on its merits in a meaningful hearing 
prior to the withdrawal of benefits, the State Department 
of Social Welfare is obviously attempting to minimize the 
cost of paying welfare benefits to persons who maj  ̂ not in 
fact be eligible. In so doing they have apparently deter­
mined that it is more important to protect the public purse 
than it is to protect the public reputation for justice. While 
it is of course important to preserve public funds, consti­
tutional rights cannot be sacrificed in the process. Edwards 
v. California (1941) 314 U.S. 160.

Furthermore, the costs thus saved will not be great. Under 
the judgment of the California Superior Court in McCul­
lough* for example, the continued payment of benefits 
pending an adequate hearing is available only to a person 
who controverts the allegations of ineligibility in a sworn 
statement and requests a “ fair hearing” . Payment of bene­
fits to these persons pending an adequate hearing causes 
the State no financial injury at all if the recipient is found 
eligible, since binding federal regulations require payment 
of aid retroactively to the date of discontinuance. Federal 
Handbook of Public Assistance Administration (Federal 
Handbook), Sections 6200 (k), 6300 (g). Furthermore, aid 
payments pending hearing are explicity sanctioned under 
regulations enacted pursuant to the Federal Social Security 
Act. (Federal Handbook, Section 6500 (b )). Under these 
circumstances, amicus submits that the regulation fails to 
provide a hearing “ at a meaningful time and in a meaning­
ful manner” which due process requires. Armstrong v. 
Manso (1965) 380 U.S. 545, 552.

*See footnote 1, p. 1, supra, and text thereto.



10
B. A DECISION TO TERMINATE CATEGORICAL AID BENEFITS IS AN AD­

JUDICATORY ACT, REQUIRING, AS A MINIMUM, ADEQUATE NOTICE, 
OPPORTUNITY FOR CONFRONTATION AND CROSS-EXAMINATION, A 
DECISION BASED ON EVIDENCE PRODUCED AT A HEARING, AN IM­
PARTIAL TRIER OF FACT, AND A DECISION ON THE MERITS. THE 
CHALLENGED REGULATION PROVIDES NONE OF THESE.

A  decision to withdraw benefits must be based on a de­
termination that a recipient previously found eligible for 
such benefits is no longer eligible. In contested cases, such 
a determination requires the resolution of disputed factual 
issues and the application of detailed statutory and regu­
latory criteria and is therefore an adjudicatory act. See 
Hornsby v. Allen (5 Cir. 1964) 326 F.2d 605, 608. It there­
fore requires the elementary safeguards which the chal­
lenged regulation fails to provide. 326 F.2d at 608.

T. The regulation fails to provide adequate notice.
It is elementary that due process requires notice of 

charges sufficiently in advance of hearing to permit ade­
quate preparation for a hearing. Russell-Newman Manu­
facturing Company v. N.L.R.B. (5 Cir. 1966) 370 F.2d 980 ; 
see Hornsby v. Allen, (5 Cir. 1964) 326 F.2d 605.

PSS 44-325.43 provides that a recipient shall be notified 
of a decision to withhold categorial aid benefits and the 
grounds therefor at least three days before aid is actually 
withheld. It further provides that the recipient shall be 
informed of the evidence on which such a decision is based 
at an informal conference which is the recipient’s sole 
opportunity to contest the county’s action before it takes 
effect.

The evidence presented to the recipient for the first time 
at the conference may be overwhelming in detail and may 
be in a form so general or unorganized that it would he 
difficult to refute under any conditions. To do so imme­
diately after first notice is often impossible. Even if the 
county’s evidence is made available to the recipient prior



11

to the conference, three days is manifestly too short a 
time to permit adequate preparation. In this briefest of 
periods, the recipient who receives notice of proposed termi­
nation must gather and present evidence to rebut a report 
which professional investigators had a month or longer 
to prepare.3 He is called upon to secure legal counsel, dis­
cover and evaluate the factual and legal grounds for the 
proposed termination, contact the county department to 
schedule an informal conference, interview adverse and 
favorable witnesses and arrange for their presence at the 
conference (without the benefit of subpoenas), and secure 
relevant documentary evidence, such as medical reports 
or wage records (again without the benefit of subpoena 
power). If all this is not adequately accomplished in a 
period as short as three days, there will be no chance of 
disturbing the ex parte determination of ineligibility and 
benefits will be withheld. In these circumstances the right 
to counsel is illusory.

The regulation involved in Kelly v. Wyman (S.D.N.Y, 
1968) 294 F. Supp. 893, probable jurisdiction noted, sub 
nom Goldberg v. Kelly, (1969) 37 LW  3399, required seven 
days written notice prior to the proposed effective date 
of the discontinuance. The District Court in that case 
deemed such notice mailed seven days before effective date 
adequate. This is one of the most important distinctions 
between the New York and California regulations.

While three days may provide notice of proposed action, 
it clearly does not provide an adequate opportunity to con­

3. The record in McCullough (see footnote 1, supra, p. 1) 
shows that the investigation by the District attorney’s office of Mary 
McCullough’s eligibility lasted at least 36 days. On February 15, 
1968, the man alleged to be living with Mrs. McCullough was inter­
viewed, C.T. 73, and the supplement summarizing the statements of 
two witnesses is dated March 21, 1968. C.T. 75. This length of time 
is not exceptional.



test the validity of that action. The California regulation 
provides a tool of discovery rather than an adjudicatory 
proceeding.

32

2. The regulation provides no opportunity to test the credibility and probative 
value of evidence.

Even if the regulation permitted adequate time to pre­
pare for the conference, it would he constitutionally in­
adequate because its failure to provide subpoena power or 
the power to administer oaths deprives both the county 
and the affected recipient of any opportunity to test the 
credibility and probative value of the evidence on which 
a decision to terminate benefits is based.

Complex factual determinations, such as whether a hus­
band and wife are disassociated or have abandoned a child, 
whether a man has lived with a woman in a spouse-like 
relationship, or whether a person is physically or psycho­
logically unemployable, are a necessary element in many 
decisions to withhold public assistance benefits. Where, as 
here, such fact findings serve as a predicate for govern­
mental action which seriously injures an individual, con­
frontation and cross-examination are an indispensable ele­
ment of a hearing. Greene v. McElroy (1959) 360 U.S. 474, 
507; Willner v. Committee on Character and Fitness (1963) 
373 U.S. 96. See, Walker v. City of San Gabriel (1942) 20 
C.2d 879,129 P.2d 349.

Under the regulation, however, a determination of in­
eligibility must be made on the basis of evidence which is 
primarily hearsay, circumstantial and untested opinion. 
“ [N]ot only is the testimony of absent witnesses allowed 
to stand without the probing questions of the person under 
attack which often uncover inconsistencies, lapses of recol­
lection, and bias, but in addition, even [county personnel] 
do not see the informants or know their identities, but



normally rely on an investigator’s report of what the in­
formant said without even examining the investigator per­
sonally.” Greene v. McElroy (1959) 360 U.S. 474, 497-499 
(footnotes omitted). Without the ability to require the 
attendance of witnesses and to take sworn testimony, a 
trier of fact has no rational or adequate method of weigh­
ing conflicting testimony and therefore cannot render a 
meaningful decision.

3. The regulation fails to require a decision based on evidence produced at 
a hearing.

A decisional process which permits a determination to 
be made on the basis of evidence heard ex parte is mani­
festly inadequate to protect the affected party against arbi­
trary action. Ohio Bell Telephone Co. v. P.TJ.C. (1937) 301 
U.S. 292. “ [T]he requirement of a hearing necessarily 
contemplates a decision in light of evidence there intro­
duced.” English v. City of Long Beach (1950) 35 C.2d 155, 
159, 217 P.2d 22, 24.

The regulation provides an opportunity for the recipi­
ent “ to learn the nature and extent of the information on 
which the withholding action is based” and “ to provide an 
explanation or information.” However, it does not provide 
the recipient with the right to present any such explana­
tion or information to the person or persons responsible 
for rendering the ultimate decision, nor does it require 
that a record of the evidence be made and transmitted to 
the decision maker. Presumably the substance of the coun­
ty’s evidence and the recipient’s “ explanation or informa­
tion” must be communicated to the person who decides. 
This material may be transmitted in such a manner as to 
destroy its worth altogether. Elements may be omitted, 
distorted or colored in the retelling. The version that ulti­
mately reaches the trier of fact may be incomplete or in­

13



14

accurate, and may be quite different from the version that 
confronted the recipient at the informal conference.

Under these circumstances the opportunity offered by 
the regulation to “ provide an explanation” offers no 
meaningful opportunity to present evidence and cannot be 
deemed to satisfy due process. See, I.C.C. v. Louisville & 
N. B. Co. (1912) 227 U.S. 88, 91; Dixon v. Alabama State 
Board of Education (5 Cir. 1961) 294 F.2d 150.

4. The regulation fails to provide an impartial trier of fact.

Even if a recipient were afforded adequate notice and 
the right of confrontation and cross-examination, the fail­
ure of PSS 44-325.43 to require a decision by a person 
having no prior direct involvement in the case renders it 
inadequate to provide the protection required by due 
process.

It is too clear to require argument or extended citations 
that a fair hearing presupposes an impartial trier of fact 
and that prior official involvement renders impartiality most 
difficult to maintain. Wasson v. Trowbridge (1967) 382 
F.2d 807, 813. Under the regulation, an affected recipient 
is entitled only to a conference with his caseworker or other 
unspecified county personnel who not only may have been 
involved in prior aspects of his case, but who may have 
actually made the initial recommendation to withhold bene­
fits. The court in Kelly v. Wyman, supra, 294 F. Supp. 893, 
906 construed a regulation which provided:

“ Only the social services official or an employee of his 
social services department who occupies a position 
superior to that of the supervisor who approved the 
proposed discontinuance or suspension shall be desig­
nated to make such a review.”

The court said that, if in practice the reviewing official were 
a case supervisor who had been consulted in advance for



15

approval of proposed terminations or who might even have 
initiated the recommendation to terminate, it would be a 
clear violation of the spirit of the New York regulation. 
294 F. Supp. at 907. The California regulation does not even 
attempt to require the decision maker to be a superior of 
the one who made the initial decision. It leaves the position 
of the decision maker completely unspecified. In fact, in 
relatively small county welfare departments there may be 
only one superior in the department, so that he will un­
doubtedly be the one who made the preliminary decision. 
Thus, the California regulation cannot be construed so as 
to be constitutional, unlike the New York regulation.

To illustrate the application of the California regulation, 
in the case of Mrs. McCullough (one of the plaintiffs in 
the California State Court action*), after receiving the 
investigation reports of the Family Support Division of 
the District Attorney’s office, the social worker for Mrs. 
McCullough, along with her supervisor, determined that 
her continued eligibility for welfare benefits was condi­
tioned on her admission that she was and had been living 
with a man whose income would have to be considered in 
determining her grant. C.T. 51-52. The social worker then 
visited Mrs. McCullough, discussed the investigator’s re­
port with her, and advised her that if she admitted that 
the man in question was living with her, her grant would 
be adjusted in accordance with his income, but that if she 
denied it, aid would be discontinued. Mrs. McCullough de­
nied the allegation and two days later she was notified that 
her case was being discontinued, “because of failure to pro­
vide essential information” . C.T. 52. Although she had the 
right, before termination became effective, to again discuss

*See footnote 1, p. 1, supra, and text thereto.



the matter with her social worker, there was no right to 
independent review by any person not previously connected 
with the case. Instead of initiating an impartial review of 
the facts, her denial terminated her right to further bene­
fits. The “hearing” provided by the regulation is no more 
than the opportunity to dissuade a person who has already 
decided (and who may have a vested interest in supporting 
that decision). Impartiality and fairness under these cir­
cumstances may not only he difficult, but impossible to 
maintain.

16

5. The regulation fails to require a decision on the merits.
Finally, and perhaps most significantly, the regulation 

does not require a decision on the merits but permits the 
county to withhold benefits upon the receipt of evidence 
“which is both substantial in nature and reliable in source 
. . . indicating . . . probable ineligibility” , PSS 44-325.421 
(Emphasis added; set forth in Appendix A.)

Not only is it incumbent upon the county to withdraw 
benefits upon a determination of probable ineligibility but 
it is required to do so as soon as possible. PSS 44-325.1 
(Set forth in Appendix A ). Under these circumstances a 
county may withhold benefits without regard to the con­
tradictory evidence offered by a recipient, thereby leaving 
the ultimate decision on the merits to the subsequent hear­
ing conducted by the State Department of Social Welfare.

The only place in our system of justice where such a pro­
ceeding is deemed permissible is in the area of law enforce­
ment or where the public health or safety is endangered. 
Sokol v. Public Utilities Commission (1966) 65 C.2d 247, 
418 P.2d 265; North American Cold Storage Company v. 
City of Chicago (1908) 211 U.S. 306. Even in those circum­
stances there are a variety of devices available to prevent



or mitigate the injury which may flow from the necessity 
of taking governmental action before there has been a full 
hearing on the merits, such as bail, release on own recogni­
zance, preliminary hearings, etc. There are no devices for 
mitigating the damage herein or for staying the govern­
mental action and there is no threat to the public safety 
involved.

In light of the vital interest of public assistance recipients 
in an adequate hearing prior to withdrawal of benefits and 
of the absence of any significant interest of the County or 
State to the contrary, amicus submits that the termination 
procedures of PSS 44-325.43 are “ inconsistent with rational 
justice, and [come] under the Constitution’s condemnation 
of all arbitrary exercise of power.”  I.C.G. v. Louisville & 
N. B. Co. (1912) 227 U.S. 88, 91.

C. THE AVAILABILITY OF A SUBSEQUENT HEARING DOES NOT JUSTIFY 
THE ELIMINATION OF AN ADEQUATE PRIOR HEARING.

The District Court opinion implies that the procedural 
safeguards obviously omitted from the regulation are not 
constitutionally required prior to the termination of bene­
fits because a fair hearing is available afterwards. The law 
is clearly to the contrary. Absent come compelling public 
interest, due process requires procedural safeguards ade­
quate to protect the interest affected prior to action.

This Court most recently reaffirmed this proposition in
Sniadach v. Family Finance Corp. (1969) .........U.S.............,
37 LW  4520.

Two California cases are likewise instructive on the ne­
cessity of a hearing prior to the time action takes effect, 
despite subsequent procedures. Mendoza v. Small Claims 
Court (1958) 49 C.2d 668, 321 P.2d 9; Sokol v. Public Utili­
ties Commission (1966) 65 C.2d 247, 418 P.2d 265.

17



At issue in Mendoza was whether a month-to-month ten­
ant could he deprived of possession pursuant to a small 
claims court judgment where there had been no right to 
counsel. The California Supreme Court unanimously held 
that he could not; and that therefore a statute vesting juris­
diction of unlawful detainer actions in small claims courts 
violated due process because it contained no provision for 
an automatic stay on appeal and the tenant could be dis­
possessed before the appeal was determined. The small 
claims hearing, which is an informal trial before a judge 
on adequate notice, California Code Civ. Proe., Sec. 117 et 
seq., was deemed inadequate to permit dispossession of the 
tenant despite the appeal right to a subsequent trial de novo 
with counsel.

In Sokol the interest of a telephone subscriber in avoiding 
a temporary interruption of service was at stake. The opin­
ion held unconstitutional a regulation which permitted dis­
connection of telephone service on the basis of a police alle­
gation that it was being used illegally and which provided 
a hearing only after service was terminated. The court 
stated that at a minimum, due process requires that an 
ex parte determination of probable cause be made by an 
impartial tribunal prior to disconnection, and that the sub­
sequent hearing be promptly provided. 65 C.2d 247, 250, 
418 P.2d 265, 271.

In the instant case, there can be no impairment of a vital 
gOAmrnment function, such as law enforcement, which was 
involved in Sokol. On the other hand, the interest of a cate­
gorical aid recipient in continued receipt of aid pending an 
adequate hearing is far greater than the interest in con­
tinuous telephone service and is at least as great as the 
interest of the tenant in possession. The inability of the 
wrongfully terminated categorical aid recipient to pay his

18



19

rent subjects him to an unlawful detainer suit to which he 
will have no defense, and to subsequent eviction. Calif. Code 
Civ. Proc., Sec. 1159 et seq. His inability to pay utility bills 
will result in disconnection of telephone, gas and electricity. 
Yet PSS 44-325.43 contains no provision under any circum­
stances for a stay of decision pending an adequate hearing, 
such as the California Legislature added to the statute after 
Mendoza to render it constitutional. Calif. Code Civ. Proc., 
Sec. 117 j (Calif. Stats. 1959, ch. 1982, p. 4588) Therefore, 
even when a recipient appeals in good faith, as evidenced 
by the filing of the sworn statement required by the judg­
ment in McCullough * the regulation permits termination 
of his aid after a so-called “hearing” which provides far less 
protection than a small claims trial before a judge, at issue 
in Mendoza, and which does not even afford the most ele­
mentary safeguard of an impartial tribunal which was re­
quired to protect a far less vital interest in SoTcol.

So far as amicus can determine, no administrative agency 
has ever been permitted to terminate an interest comparable 
to that involved here under procedures so utterly lacking 
in elementary safeguards.! Even if there are considerations 
which permit the relaxation of one or more of the elements 
discussed above, (pp. 10-17), no case has been discovered 
which approves proceedings lacking all of these basic safe­
guards.

“ For the guidance of the parties” , the court in Dixon v. 
Alabama State Board of Education (5 Cir. 1961) 294 F.2d 
150, 158, cert. den. 368 U.S. 930, set forth its views “ on the

*See footnote 1, p. 1, supra, and text thereto.
f Appendix B describes the rules of procedure governing proceed­

ings which are used by a representative group of administrative 
agencies in acting to revoke or suspend a license or privilege granted 
to an individual.



nature of the notice and hearing required by due process 
prior to expulsion from a state college or u n iv e rs ity (Em­
phasis added). The views expressed were dictum and were 
expressly limited to the facts of the particular case. They 
are instructive however. The court specifically rejected the 
idea that “ an informal interview with an administrative 
authority” was a sufficient hearing prior to expulsion. While 
it did not require a full trial-type hearing including the 
right to cross-examine witnesses, this was because “ [s]uch 
a hearing, with the attending publicity and disturbance of 
college activities, might be detrimental to the college’s edu­
cational atmosphere and impractical to carry out.” 294 F.2d 
at 159.

It hardly needs to be stated that categorical aid recipients 
are not subject to the same disciplinary requirements as 
college students, (see Parrish v. Civil Service Commission 
(1966) 66 C.2d 260, 425 P.2d 223) and that an adequate 
hearing provided before termination of benefits will entail 
no disruption of the Welfare Department’s functions. The 
receipt of categorical aid benefits pending a hearing cannot 
be dismissed as a lesser interest than attendance at a tax 
supported college.

On the other hand, considered essential by the Dixon 
court were: notice containing a statement of the specific 
charges and grounds, a report to the student including the 
names of all witnesses and the facts to which they testify, 
an opportunity to hear both sides in considerable detail 
including an opportunity to present a defense with oral 
testimony and written affidavits, and a report on the findings 
of the hearing. In short, the court suggests that the rudi­
ments of an adversary system should be preserved as much 
as possible without encroaching upon the legitimate interest 
of the governmental agency involved.

20



21

It simply makes sense that where one element of judicial 
practice has been omitted from administrative adjudica­
tions, the provision of compensating safeguards is all the 
more necessary. I.C.C. v. Louisville & N. R. Co. (1912) 227 
U.S. 88, 93; Shively v. Stewart (1966) 65 C.2d 475, 480, 421 
P.2d 65.

It is sometimes suggested that welfare recipients are not 
entitled to the same due process as other more fortunate 
citizens because there is no constitutional right to receive 
such assistance.

Whether or not there exists a vested right to public 
assistance benefits, the requirements of procedural due 
process must be met before such benefits may be with­
drawn. Courts have explicitly rejected the view that ade­
quate procedural safeguards are required only when vested 
or constitutional rights are at stake and have required 
hearings to protect the interest of a student in remaining 
in a tax-supported university, Dixon v. Alabama■ State 
Board of Education (5 Cir. 1961) 294 F.2d 150, 156; Gold­
berg v. Regents of the University of California (1967) 248 
C.A.2d 867, 57 Cal. Rptr. 463; the interest of an applicant 
for or holder of a business license; Hornsby v. Allen (5 
Cir. 1964) 326 P.2d 605, 609; Fascination Inc. v. Hoover 
(1952) 39 C.2d 260, 269, 246 P.2d 656, 661; one’s interest 
in employment, Slochower v. Board of Education (1956) 
350 U.S. 551; Greene v. McElroy (1959) 360 U.S. 474; and 
one’s interest in doing business with a government agency 
Gonzalez v. Freeman (D.C. Cir. 1964) 334 F.2d 570, 574. As 
the court stated in Cafeteria and Restaurant Workers v. 
McElroy (1961) 367 U.S. 886, 894, “ One may not have a con­
stitutional right to go to Baghdad, but the Government may 
not prohibit one from going there unless by means con­
sonant with due process of law.”



Under California law, categorical aid benefits must be 
administered promptly and humanely. W  & I Code Sec. 
10000. Due process requires no more. Although the fair 
hearing provided by the state to review county action may 
satisfy the requirement of statewide supervision, W & I 
Code Sec. 10600, it comes too late to satisfy the require­
ment of due process. The state is fully able to provide pro­
tection more meaningful than that provided under present 
practice. It can either require an adequate hearing on the 
county level or provide for a stay of the county’s decision 
pending the state “ fair hearing.” It does neither, but in­
stead permits benefits to be withdrawn after nothing more 
than a summary ex parte determination and an illusory 
opportunity to dissuade afterwards. It seeks to minimize 
costs rather than injustice. By so doing it can only further 
the alienation of society’s most disadvantaged persons 
from their Government and the alienation of their Gov­
ernment from its founding principles. As stated by Jack- 
son, J . :

“ Let it not be overlooked that due process of law is not 
for the sole benefit of an accused. It is the best insur­
ance for the Government itself against those blunders 
which leave lasting stains on a system of Justice but 
which are bound to occur on ex parte consideration.” 
Dissenting opinion, Shaughnessy v. United States 
(1953) 345 U.S. 206, 224-225.

II, The Notice and Informal Conference Provided by the Chal­
lenged Regulation Prior to Termination of Categorical Aid 
Benefits by a County WeSware Department D® Not Afford the 
Protection Required by the California Legislature.

California conceded in McCullough* that the requirement 
of the W  & I Code that benefits under the categorical aid

22

#See footnote 1, p. 1, supra, and text thereto.



program may be withdrawn “ for cause” !  carries with it 
the right to a hearing prior to actual withdrawal. (Appel­
lant’s Opening Brief, page 16) Ratliff v. Lampton (1948) 
32 C.2d 226,195 P.2d 792.

In Ratliff, the California Supreme Court held that a 
statute authorizing the Department of Motor Vehicles to 
revoke a driver’s license for good cause carried with it the 
right to a hearing before the Department prior to revoca­
tion despite provision in the statute for a subsequent hear­
ing before the Director of the Department. The decision 
rests on the rule, established in a series of prior cases, that 
where an agency is required by statute to act for cause, an 
affected party must be afforded a hearing prior to action 
unless there is a clear showing of a contrary legislative 
intent. Carroll v. California Horse Racing Board (1940) 
16 C.2d 164, 105 P.2d 110 (suspension of horse trainer’s 
license); La Prade v. Department of Water and Power 
(1945) 27 C.2d 47, 162 P.2d 13 (civil service discharge); 
Covert v. State Board of Equalization (1946) 29 C.2d 125, 
173 P.2d 545 (liquor license revocation). The court in Ratliff 
stated:

“ The fact that the Vehicle Code provided for an 
administrative review subsequent to revocation does 
not alter this rule. We should not imply legislative in­
tent to deprive a person of his license without a prior 
opportunity to be heard unless compelled to do so by 
the plain language of the statute, regardless of whether

23

fThe county must have cause to cancel, suspend or revoke aid 
in the Aid to Families with Dependent Children, Old Age Security, 
and Aid to Blind programs. W  & I Code Sec. 11458, 12200, and 
12700 respectively. The provision of W. & I. Code See. 13750 per­
mitting the county to cancel, suspend or revoke Aid to Disabled 
Benefits “ after investigation”  imposes the same hearing require­
ment as the “ for cause”  provisions of the other sections. See 'Steen 
v. Board of Civil Service Commissioners (1945) 26 C.2d 716, 160 
P.2d 816, “ The words ‘ hearing’ and ‘ investigation’ may mean the 
same thing.”  Ratliff v. Lampton (1948) 32 C.2d 226, 231, 195 P.2d 
792, 795.



24

there is a right to administrative review after the revo­
cation.” 32 C.2d at 230,195 P.2d at 795.

An identical statutory scheme manifests the Legisla­
ture’s intent to require a hearing prior to action in the 
instant case. The county is required to act for cause or 
after investigation in terminating aid, and a hearing sub­
sequent to action is provided before the Director of the 
State Department of Social Welfare. W. & I. Code Sec. 
10950 et seq.

The District Court held that PSS 44-325.43 meets the 
requirement of a hearing prior to the withdrawal of bene­
fits. The regulation provides that an initial decision to 
withhold or terminate benefits is made by administrative 
personnel in the County Department on the basis of evi­
dence which is presented and reviewed ex parte and which 
may be totally hearsay, circumstantial or untested opinion. 
It permits the county to give the affected recipient as little 
as three days’ notice of the decision to withdraw benefits 
and requires that the caseworker, an eligibility worker or 
other unspecified person in the county department be avail­
able for an informal conference with the recipient. At the 
conference, the recipient is confronted for the first time 
with the evidence on which the withholding action is based 
and may provide any explanation or information he may 
wish in support of his eligibility. The decision to withhold 
benefits takes effect automatically unless as a result of the 
informal conference or on some other ground, the county 
department reverses itself. It is clear from Ratliff and the 
cases on which it relies that the statutory requirement that 
welfare benefits be terminated for cause carries with it the 
right to a procedurally adequate hearing prior to with­
drawal of benefits regardless of the existence of subsequent
review.



Steen v. Board of Civil Service Commissioners, (1945) 
26 C.2d 716, 160 P.2d 816, and the other eases relied on in 
Ratliff, established beyond doubt that when an agency may 
act for cause only, it must provide a hearing subject to the 
procedural and evidentiary rules normally associated with 
the term and not left to the unfettered discretion of the 
agency.

In Steen, the court specifically disapproved a statement 
in a prior case that the conduct of a hearing and the class 
of evidence to be heard were matters of administrative dis­
cretion and that nothing more was required than that the 
affected party ‘‘be permitted to produce his evidence” . The 
court stated that this was too permissive and that “ a hear­
ing is required with all that the term implies” , where a 
board is required to “ investigate” a civil service discharge. 
26 S.2d at 725,160 P.2d at 821.

As to the evidence required to support an administrative 
determination of cause, three of the cases principally relied 
on in Ratliff cite the rule established in Walker v. City of 
San Gabriel (1942) 20 C.2d 879, 129 P.2d 349, that hearsay 
alone cannot support an administrative decision. Steen v. 
Board of Civil Service Commissioners (1945) 26 C.2d 716, 
727; 160 P.2d 816, 822; La Prade v. Department of Water 
and Power (1945) 27 C.2d 47, 51; 162 P.2d 13, 15; Covert v. 
State Board of Equalisation (1946) 29 C.2d 125, 1.73 P.2d 
545. The court in Steen ruled that the petitioner was denied 
a hearing where the only evidence introduced in support 
of the administrative decision was an unsworn and unveri­
fied investigation report. 26 C.2d at 727, 160 P.2d at 822.

In La Prade, supra, the court stated that even if an 
investigation report is competent evidence, no hearing is 
had unless the report “ is introduced into evidence and the 
accused is given an opportunity to cross-examine the maker 
thereof and refute it.” 27 C.2d at 52,162 P.2d at 16.

25



Although the court in Ratliff, supra, indicated that the 
hearing prior to action might be less formal than the sub­
sequent hearing, it did not sanction a conference subject 
to no procedural or decisional rules whatever. Procedures 
virtually identical to those provided by PSS 44-325.43 were, 
as a practical matter, undoubtedly available in Ratliff also, 
since the statute required ten days notice prior to the 
revocation of a license. During this period, administrative 
officials were presumably available and willing to inform 
the licensee of the basis of their proposed action and to 
listen to any explanation or information he wished to pro­
vide. Yet it was not even contended that the opportunity 
for informal review afforded by the ten-day notice period 
constituted the hearing required by statute.

The use of an informal conference to meet a statutory 
requirement that administrative action be “ for cause only” 
was specifically rejected in Keenan v. 8.F. Unified School 
District (1950) 34 C.2d 708, 214 P.2d 382. The court stated 
that “ informal interviews with administrative officers . . . 
did not constitute a hearing contemplated by the statute.” 
34 C.2d at 715, 214 P.2d at 386.

PSS 44-325.43 provides no more than the informal inter­
view with administrative personnel which was specifically 
found not to be a hearing in Keenan and which was pre­
sumably available with an even greater notice period in 
Ratliff. It permits a decision of ineligibility to be rendered 
solely on the basis of an investigator’s hearsay report, 
which California courts have consistently held to be a denial 
of a hearing. Walker v. City of San Gabriel (1942) 20 C.2d 
879, 129 P.2d 349; Steen v. Board of Civil Service Commis­
sioners (1945) 26 C.2d 716, 160 P.2d 816; La Prade v. 
Department of Water and Poiver (1945) 27 C.2d 47, 162 
P.2d 13. In failing to specify the nature of the conference, 
the regulation vests in the county the same unlimited dis-

26



27

cretion which Steen specifically disapproved. Far from 
meeting the requirements of a hearing under California 
law, the regulation exhibits the same defects which have 
rendered other procedures inadequate to meet statutory 
requirements identical to those presented here.

Further indicative of the legislative intent to require 
greater safeguards than the regulation provides prior to 
termination is the length of time permitted by statute for 
the rendition of the state “ fair hearing decision” . Although 
newly adopted regulations of the State Department of 
Social Welfare require such a decision within sixty days 
after the hearing, (Operations Manual, 22-043 through 22- 
065, (see also, Federal Handbook § 6200(j )), the Legisla­
ture has explicitly permitted 180 days to elapse before such 
a decision is rendered. W.&T. Code Sec. 10950 et seq. The 
length of this statutory time limit provides a clear indica­
tion that in requiring cause for the withdrawal of benefits, 
the Legislature must have intended to provide a hearing 
fully adequate to protect the aid recipient during the six 
months permitted for subsequent review.

The hearing required by statute may afford greater safe­
guards than due process requires. In Ratliff v. Lampton, 
(1948) 32 C.2d 226, 232, 195 P.2d 792, 796, the court specifi­
cally stated that while the summary revocation of a driver’s 
license might be constitutionally permissible, this “ cannot 
be used to imply a legislative intent to deny [the right to a 
hearing] before the revocation.” Later the Constitution was 
held not to require a hearing, Escobedo v. State of Cali­
fornia (1950) 35 C.2d 870, 222 P.2d 1, leaving Ratliff to 
stand for the proposition that “ for cause” in a statute means 
more than “ due process” in the U.S. Constitution.



28
CONCLUSION

For the foregoing reasons this Court should reverse the 
judgment of dismissal rendered by the District Court as to 
the class. It should make clear that informal procedures 
have a place in the system, but that such procedures deny 
due process when a proceeding has become adversary in 
nature. It should make clear that aid to welfare recipients 
may not be terminated or withheld without an adequate 
hearing, and that such a hearing must include all the safe­
guards that are customarily available in adjudicatory pro­
ceedings, including adequate notice, right to counsel, con­
frontation and cross examination, a record of the evidence, 
a decision based on the evidence by an impartial person, 
and a decision on the merits.

Dated,
Oakland, California, June 20,1969

Respectfully submitted,
T homas L. F ike 
T homas Schneider 
Burton Danziger 
David Nawi

A ttorn eys fo r  Am icus Curiae, 
L egal A id  S ociety  o f  

Alam eda County

(Appendices follow)



Appendix A

CALIFORNIA STATE HIPARTMiNT 
OF SOCIAL WELFARE 

PUBLIC SOCIAL SERVICES MANUAL 
REGULATION 44-325



AB
ATD
GAS
AFDC

AFDC

ATD

AB
ATD
GAS
AFDC

44-325 CHANGES IN AMOUNT OF PAYMENT 44-325

.1 W hen Change is E ffective
Whenever any change in the circumstances requires a 
change in grant, or a discontinuance of aid the appro­
priate change or discontinuance is to be made effective 
as soon as possible. (See Sections 44-333.12, Adjustment 
Period, and 44-331.1, Adjustment of Underpayment by 
Authorization of Retroactive Aid.)

.11 If the change in the aid payment (as determined 
in accord with PSS Section 44-315.5), amounts to 
less than $2 per month, such change is not to be 
made.

.12 D ecrea se: Where the required change is a decrease 
of $2 or less, it shall be effective not later than the 
second month following that in which the changed 
circumstances were reported, and no adjustment is 
to be made for overpayment of $2 or less in the 
month of reporting or in the following month.

.13 In crea se: When the change in circumstances will 
continue for only one or two months, and the amount 
of the increase would be $2 or less, no change is 
made in the continuing authorization.

.2 Change in Incom e or N eed
.21 Change and Am ount K now n in A dvance

If a change in income or need, including the amount, 
is known in advance, any necessary change in the 
amount of payment is made effective with the month 
in which the changed circumstances will occur.

Appendix A



Appendix
.22 Change K now n in A dvance But Am ount N ot K now n  

.221 Concurrent Paym ent and B udget P eriods
When it is known that income will start in the 
next month but the exact amount is not known, 
or when income is variable in amount, an 
estimate of the expected income shall be made, 
on the basis of available information, for the 
purpose of determining the next current month 
aid payment. If the estimate indicates ineligi­
bility for any grant, aid may be withheld pend­
ing verification of actual income (see Section 
.421 below). I f the estimated income proves to 
be incorrect when actual income is reported, 
corrective action is taken to adjust the pay­
ment within the limitations of PSS Sections 
44-331 and 44-335.

.222 B udget Planning P eriod  with Subsequent P a y ­
m ent P eriod
Actual income received in the Planning Period 
is reported and reflected in the subsequent 
payment.

Discontinuance
If a recipient’s circumstances change to the extent that 
he no longer meets the eligibility7 requirements, aid 
shall be discontinued effective the last day of the month 
for which the last payment was made. (See PSS Sec­
tion 44-315 re appropriate action when the recipient is 
no longer eligible to a cash grant but remains eligible 
to medical assistance as a medically needy person.)

W ithheld Paym ent
.41 Withheld Payment—Defined

A  withheld payment is one which is held beyond the 
usual delivery date while information concerning



AB
ATD
OAS
AFDC

Appendix 3
needs, income or basic eligibility is investigated, 
subject to Section 44-325.43.

.42 Limitations on and Requirements for Withholding 
of Aid Payment
Subject to the following limitations, aid payments 
shall be withheld when further investigation is 
necessary to determine continuing eligibility.

.421 Recipients should have the assurance of regu­
lar and continued aid payment without inter­
ruption or delay. Accordingly, an aid payment 
may be withheld beyond the usual delivery 
date only when evidence which is both sub­
stantial in nature and reliable in source is 
received by the county, indicating:
a. Probable ineligibility of the recipient, or
b. A  probable overpayment has occurred or is 

occurring which can be adjusted only if aid 
payment is withheld.

.422 Aid payment shall not be withheld pending 
ascertainment of increases in federal benefits 
such as social security or increases in benefits 
payable by a public agency. (W&IC Section 
11014.)

.423 Aid payment shall not be withheld because of 
actual or probable changes in need or income 
when it appears that any resulting overpay­
ment can be adjusted in the grant(s) for a 
subsequent month or months. (See PSS Sec­
tion 44-335.) (I f a recipient will be disadvan­
taged by delaying the adjustment another 
month, the county should discuss with the 
recipient the desirability of an immediate cur-



4 Appendix
rent cash adjustment for the overpayment in 
lien of the delayed grant adjustment.)

.424 An initial payment shall not he withheld be­
yond the month for which it was authorized.

.425 The first installment of a month’s A F D C  aid 
payment may be withheld if the county’s eval­
uation of circumstances indicates probable 
ineligibility. If the question cannot be resolved 
by the end of the first semi-monthly period 
following that in which it arose, the second 
payment is always withheld.
Unless the first installment o f a month’s aid 
paym ent has been withheld, the second install­
ment is n ever withheld excep t w hen:

a. Probable or actual ineligibility fo r  the first 
installment was discovered too late to hold 
that paym ent, or

b. Probable overpaym ent is occurring which 
can be adjusted only i f  the second install­
ment is withheld or i f  the recipient would 
be seriously disadvantaged by the delayed  
adjustment.

F o r  counties on the Subsequent Paym ent Plan  
the second installment is n ever withheld be­
cause o f  changes occurring within the current 
paym ent period.

AB
ATD
OAS
AFDC

.43 N otification to R ecipien t W hen  Aid, Paym ent is 
W ithheld
The recipient, the parent or other person respon­
sible for the child in A F D C , shall be notified, in 
writing, immediately upon the initial decision being 
made to withhold a warrant beyond its usual deliv-



Appendix 5
ery date for any reason other than death, and in 
no case less than three (3) mail delivery days prior 
to the nsnal delivery date of the warrant to the 
recipient. The county shall give such notice as it 
has reason to believe will be effective including, if 
necessary, a home call by appropriate personnel. 
Form ABCD 239, Notice of Action, or a substitute 
form, may be used for this purpose. Every notifi­
cation shall include:

.431 A  statement setting forth the proposed action 
and the grounds therefor, together with what 
information, if any, is needed or action re­
quired to re-establish eligibility or to deter­
mine a correct grant.

.432 Assurance that prompt investigation is being 
made; that the withheld warrant will be de­
livered as soon as there is eligibility to re­
ceive it; and that the evidence or other infor­
mation which brought about the withholding 
action will be freely discussed with the re­
cipient, parent, or other person, if he so de­
sires (see Section .434 below).

.433 A  statement of whether, if aid is withheld, 
the recipient will or will not continue to be 
certified for medical assistance during the 
month aid is withheld.

.434 A statement that the recipient, parent, or 
other person may have the opportunity to 
meet with his caseworker, an eligibility work­
er, or another responsible person in the county 
department, at a specified time, or during a 
given time period which shall not exceed three



6 Appendix
(3) working days, and the last day of which 
shall be at least one (1) day prior to the 
usual delivery date of the warrant, and at 
a place specifically designated in order to 
enable the recipient, parent, or other person:
(a) To learn the nature and extent of the in­

formation on which the withholding action 
is based;

(b) To provide any explanation or informa­
tion, including, but not limited to that de­
scribed in the notification pursuant to 
Section .431 above;

(c) To discuss the entire matter informally 
for purposes of clarification and, where 
possible, resolution.

AB
ATB
OAS
AFDC

.44 Investigation and Time Limitations
.441 Evidence raising doubt concerning eligibility 

or the correctness of grant is to be evaluated, 
and any needed investigation initiated and 
completed promptly, regardless of whether 
there is basis for withholding an aid payment. 
Such investigation must be completed and 
appropriate action with respect to the grant 
taken, within not more than 30 calendar days 
after the date on which the information which 
raised doubt concerning eligibility or the grant 
was received by the county. (See Section 40- 
155.2 regarding Methods of Investigation.)

.442 Aid payment for a second month may be with­
held when the investigation is completed and 
the facts regarding continuing eligibility or



AB
ATD
OAS
AFDC

Appendix 7
correctness of grant are established too late 
in the 30-day period:
a. To permit any necessary discontinuance of 

aid prior to the second month unless the 
aid payment is withheld, or

b. To permit necessary adjustment in the aid 
payment where eligibility continues but to 
a lesser amount, and delay in the adjust­
ment for another month would result in 
overpayment which could not be adjusted.

When aid is withheld for a second month the 
withheld warrants shall be reissued in the 
correct amount and delivered to the recipient 
within a maximum of ten calendar days fol­
lowing the normal due date for the second 
withheld warrant, or delivered to the recipi- 
ient and a current cash adjustment obtained 
from him. (See Section 44-333.12.)

.45 Action on Withheld Aid Payment Following Inves­
tigation
.451 Investigation Establishes Recipient Eligible 

to Receive Aid and That Withheld Payment 
Was in Correct Amount.
The withheld payment shall be delivered im­
mediately and aid payment continued. (If 
the recipient was eligible on the first day of 
the month aid shall be paid for the entire 
month.)

.452 Investigation Establishes Eligibility but That 
Aid should Be Paid in An Amount Less Than 
the Withheld Payment.



AB
ATD
OAS
AFDC

Appendix
The withheld payment shall be delivered, pro­
vided any resulting overpayment can be ad­
justed within the adjustment period. In such 
case at the time the withheld warrant is de­
livered, the recipient shall be informed regard­
ing the future grant adjustment(s) which must 
be made. I f  the resulting overpayment cannot 
be adjusted in the adjustment period, the 
withheld payment shall be canceled and re­
issued and any indicated change made in the 
continuing grant.

.453 Investigation Establishes Recipient Was In­
eligible to Withheld Payment but Continues 
Eligible to Aid.
The withheld payment is canceled and such 
cancellation is not considered an interruption 
in the authorization for payment.

.454 Investigation Establishes Ineligibility to 
Withheld Payment and to Continuing Aid.
a. Aid was withheld because of probable in­

eligibility.
Both the cash grant payment and certifi­
cation for medical assistance are discon­
tinued retroactively effective the last day 
of the last month for which a cash grant 
payment was made. The withheld cash 
grant payment is canceled.

b. Aid was withheld solely for the purpose 
of determining the amount of aid to which 
the recipient was eligible but he subse­
quently was found to be ineligible.



AB
ATD
OAS
AFDC

Appendix 9

There are two discontinuance dates both 
which must be entered on the document 
discontinuing aid.
The cash grant payment is discontinued 
retroactively effective the last day of the 
last month for which a cash grant payment 
was made and the withheld payment is can­
celed.
Medical assistance is discontinued effective 
the last day of the last month for which 
aid was withheld. (This later discontinu­
ance date is necessary because such recipi­
ent continued to be certified for medical 
assistance as a public assistance recipient 
during the period aid was withheld.)

.455 Investigation Not Completed at End of 30
Days.
a. Preponderance of Evidence Indicates Re­

cipient Is Ineligible.
Aid is discontinued in the manner specified 
in Section .454 above.

b. Basic Eligibility Not in Question but There 
is Still an Unresolved Question Regarding 
the Amount of Aid to Which Recipient is 
Eligible.
The withheld warrant and, if indicated, 
the continuing grant are adjusted on the 
basis of the best available information and 
the payments issued to the recipient, the 
investigation continues and when com­
pleted appropriate adjustment is made.



A CO M jktlSO M  OP CERTAIN P R O CiSW iiS  
OF S ILEC T iB  ADMINISTRATIVE AGENCIES

Appendix B



A COMPARISON OF CERTAIN PROCEDURES 
OF SELECTED ADMINISTRATIVE AGENCIES

This appendix describes the Rules of Procedure govern­
ing proceedings which are used by a representative group 
of administrative agencies in acting to revoke or suspend 
a license or privilege granted to an individual. The ap­
pendix does not purport to set out all the procedural rules 
of all federal and state agencies. Rather it seeks to demon­
strate that many decision-making administrative bodies 
generally have more procedural safeguards integrated into 
their hearings on the revocation of privileges than those 
which are provided by the California State Department of 
Social Welfare in hearings on the termination of welfare 
benefits.

The agencies referred to and the functions they per­
form, subject to the procedures outlined, and the abbrevia­
tions used hereinafter are the following:

W elfare:
The County Welfare Department under the regulations 

of the California State Department of Social Welfare, Pub­
lic Social Services Manual, Section 44-325.43, when termi­
nating welfare assistance.

Cal. A .P .A .:
The more than 44 agencies subject to the California Ad­

ministrative Procedure Act (Govt. Code Sections 11500 
et seq.) when exercising the power to revoke licenses or 
terminate privileges.

Cal. Civil Service:
The California State Personnel Board when dismissing 

a civil service employee for cause. (Govt. Code Sections 
19570 and 19500.)

School Boards:

Appendix B



12 Appendix
Governing Boards of the school districts in California 

when dismissing permanent teachers. (Ed. Code Section 
13404.) (When temporary teachers are dismissed for cause 
and request a hearing, the California Administrative Pro­
cedures Act (Govt. Code Sections 11500 et seq.) applies.) 

D.M.V.:
California Department of Motor Vehicles, when sus­

pending or revoking the privilege of any person to operate 
a motor vehicle. (Vehicle Code Section 13800.)

U.S.A.P.A.:
Agencies subject to the Federal Administrative Pro­

cedure Act, 5 U.S.C. Section 551; i.e., all agency action of 
the Atomic Energy Commission (42 U.S.C. Section 2231) ; 
procedure of the Detention Review Board (50 U.S.C. Sec­
tion 818); rules governing employment in executive, ad­
ministrative, professional or outside salesman capacities 
under the Fair Labor Standards Act (29 TT.S.C. Section 
213[a ]) ;  administrative proceedings conducted under the 
Farm Labor Contractor Registration Act; hearings under 
the Federal Communications Act (47 U.S.C. Section 409); 
agency action taken under the Helium Act (50 U.S.C. Sec­
tion 167 [h ]) ;  rules and orders of federal departments and 
agencies issued to prohibit exclusion of persons from par­
ticipation in federally assisted programs because of race, 
color or national origin (42 TJ.S.C. Section 2000 [d-2]) ;  rev­
ocation of seaman’s documents by the Secretary of Trans­
portation (46 TJ.S.C. Section 239); conduct of proceedings 
by the Subversive Activities Control Board (50 TJ.S.C. Sec­
tion 795); proceedings under the Uniform Time Act of 1966 
(15 U.S.C. Section 266); Walsh-Healy Act (41 U.S.C. Sec­
tion 43(a).

C.A.B.:



Appendix 13
Civil Aeronautics Board (Federal Aviation Administra­

tor) when suspending or revoking any navigation certifi­
cate. (49 U.S.C. Section 1429.)

Defense Security:
IT.S. Department of Defense, Industrial Personnel Secu­

rity Clearance Program, when revoking the security clear­
ance of a person employed in private industry. (32 C.F.R. 
Sections 155.7-155.9 (1968))

Immigration:
United States Immigration Authority when determining 

whether an alien should be deported. (8 U.S.C. Section 1252 
(1964).)

1. HOW MUCH MINIMUM NOTICE OF THE ACTION IS THE INDIVIDUAL 
AGAINST WHOM SUCH ACTION IS TO BE TAKEN ENTITLED TO?

Agency Answer Citation
Welfare: 3 days
Cal. A.P.A.: 25 days Gov. Code 11505(b) and 

11509
Cal. Civil Service: 15 days after action effective See Gov. Code 19574
School Boards: 30 days plus Ed. C. 13404 and 13412
D.M.V.: 20 days; except where physi­

cal & mental health of the 
licensee requires immediate 
action.

Veh. C. 14107, 14100 and 
13953.

U.S. A.P.A.: Timely notice 80 Stat. 384 (1966); 5 
U.S.C. 554(b) (Supp. II, 
1967).

C.A.B.: 15 days plus adequate notice 72 Stat. 779 (1958); 49 
U.S.C. 1429 (1964); 14 
C.F.R. Sec. 13.55 (1968) ; 
14 C.F.R. See. 13.19(c) 
(4)(1968).

Defense Security: 20 days plus reasonable time 
to prepare

32 C.F.R. 155.7(a)(7) 
32 C.F.R. 155.7(a)(8)

Immigration: Reasonable under all the cir­
cumstances

66 Stat. 209 (1952); 8 
U.S.C. 1252(b)(1)
(1964)



14 Appendix
2. IS THE INDIVIDUAL AGAINST WHOM ACTION IS BEING TAKEN EN­

TITLED TO BE REPRESENTED BY COUNSEL AT THE HEARING?
Agency Answer Citation

W elfare: Not specified; presumably 
yes

Cal. A.P.A.: Yes Gov. C. 11509
Cal. Civil Service: Yes See Gov. C. 19574.1
School Boards: Yes Ed. C. 13425
D.M.V.: Yes Veh. C. 14112
U.8. A.P.A.: Yes 80 Stat. 385 (1966); 5 

U.S.C. 555(b) (Supp. II, 
1967).

C.A.B.: Yes 14 C.F.R. 13.33 (1968).
Defense Security: Yes 32 C.F.R. 155.7(a)(8) 

(1968).
Immigration: Yes 66 Stat. 209 (1952); 8 

U.S.C. 1252(b)(2) 
(1964).

3, IS THE INDIVIDUAL AGAINST WHOM ACTION IS BEING TAKEN EN­
TITLED TO HAVE WITNESSES SUBPOENAED TO TESTIFY IN HIS BEHALF?

Agency Answer Citation
Welfare: No
Cal. A.P.A.: Yes Gov. C. 11510(a)
Cal. Civil Service: Yes Gov. C. 19581
School Boards: Yes Ed. C. 13417, 13425
D.M.V.: Yes Veh. C. 14112
U.S. A.P.A.: Yes 80 Stat. 385 (1966); 5 

U.S.C. 555(d) (Supp. II, 
1967).

C.A.B.: Yes 14 C.F.R. 13.57 (1968).
Defense Security: Yes 32 C.F.R. 155.7(b)(3) 

(1968).
Immigration: Yes 66 Stat. 198 (1952); 8 

U.S.C. 1225(a)(1964).



Appendix 15
4. IS THE INDIVIDUAL AGAINST WHOM ACTION IS BEING TAKEN EN­

TITLED TO CROSS-EXAMINE WITNESSES TESTIFYING AGAINST HIM?
Agency Answer Citation

Welfare: No
Cal. A.P.A.: Yes Gov. C. 11513(b).
Cal. Civil Serviee: Yes Gov. C. 19580.
Scliool Boards: Yes Ed. C. 13417, 13425.
D.M.V.: Yes Veil. C. 14112.
U.S. A.P.A.: Yes 80 Stat. 386 (1966); 5 

U.S.C. 556(d) (Supp. II, 
1967).

C.A.B.: Yes 14 C.F.E. 13.59 (1968).
Defense Security: Yes, except i f  revealing in­

former ’s identity would 
harm national interest.

32 C.F.E, 155.7(a)(8), 
155.7(d-5) (1968).

Immigration: Yes 66 Stat. 209 (1952); 8 
U.S.C. 1252(b)(3) 
(1964).

5. DOES THE GOVERNING REGULATION SPECIFY THAT THE PERSON ACT­
ING AS REFEREE OR JUDGE AT THE HEARING MUST NOT HAVE HAD 
ANY PRIOR CONNECTION WITH THE CASE?

Agency Answer Citation
Welfare: No
Cal. A.P.A.: Yes, ordinarily Gov. C. 11512(c)
Cal. Civil Service: Not specified
Scliool Boards: Yes. Hearing is in state su­

perior court.
Ed. C. 13412, 13418.

D.M.V.: Yes Veh. C. 14107.
U.S. A.P.A.: Yes 80 Stat. 384 (1966); 5 

U.S.C. 554(d) (Supp. II, 
1967).

C.A.B.: Probably 14 C.F.R. 13.39 (1968).
Defense Security: Yes 32 C.F.K. 155.6(f) 

(1968).
Immigration: Yes 66 Stat. 209 (1952); 8 

U.S.C. 1252(b) (1964).



16 Appendix
6. DOES THE DECISION TO REVOKE THE PRIVILEGE TAKE EFFECT ONLY 

AFTER THE INDIVIDUAL SUBJECT TO THE ADVERSE ACTION HAS HAD 
AN OPPORTUNITY TO BE HEARD? (Note that the value of the opportunity 
to be heard varies depending on the protections afforded at the hearing.)

Agency Answer Citation
Welfare: Yes
Gal. A.P.A.: Yes Gov. C. 11505.
Cal. Civil Service: No Gov. C. 19574, 19574.5,

Yes, where charges filed by 
an individual.

and 19583.5.

School Boards: Yes, except for immoral con­
duct, conviction of felony, 
etc.; but permanent teacher 
is paid for 30 days.

Ed. C. 13404, 13408.

D.M.Y.: Yes, except where the physi­
cal or mental health of the 
licensee requires immediate 
action.

Veh. C. 13950, 13953.

U.8. A.P.A.: Yes 80 Stat. 384 (1966); 5 
TJ.S.C. 554(a) (Supp. II,
1967).

C.A.B.: Yes, except in cases o f air 72 Stat. 779 (1958); 49
safety emergencies. TX.S.C. 1429 (1964).

Defense Security: Yes, except where delay 32 C.F.R. 155.7(a) and
would pose an immediate 
threat to the national inter­
est.

155.8 (1968).

Immigration: Yes 66 Stat. 208 (1952) ; 8 
TJ.S.C. 1252(c) (1964).

7. IS THE ADVERSE ACTION STAYED BY AN APPEAL TO A HIGHER BRANCH
OF THE AGENCY OR TO A JUDICIAL TRIBUNAL?
Agency Answer Citation

Welfare: No, exeept for the trial 
court’s judgment and man­
date in McCullough v. Ter- 
zian.

Cal. A.P.A.: Yes Gov. C. 11519, 11521.
Cal. Civil Service: No Gov. C. 19574.
School Boards: Yes Ed. C. 13404, 13436.
D.M.V.: Not applicable; Director 

makes decision.
Veh. C. 14110, 14111.

U.S. A.P.A.: Yes, on motion. 80 Stat. 393 (1966); 5 
TJ.S.C. 705 (Supp. II, 
(1967).

C.A.B.: Yes, except in cases of air 72 Stat. 779 (1958); 49
safety emergencies. TJ.S.C. 1429 (1964).

Defense Security: Yes, upon examiner’s deter­ 32 C.F.B, (1968); 155.7
mination. (e )(1 )-

Immigration: Yes 8 C.F.E. 3.6 (1968).



Appendix C

"OPPOSITION TO INTRODUCTION OF ADDITIONAL 
EVIDENCE" FILED BY CALIFORNIA ATTORNEY GENERAL 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA  
IN MeCULLOUGH VS. TERZIAN



Appendix C

Court of Appeal of the State of California 
First Appellate District—Division Three

1 Civil No. 25830

Mary McCullough, et al.,
Plaintiffs and Respondents, 

v.
ITrayr Terzian, et al.,

Defendants and Appellants.

OPPOSITION TO INTRODUCTION OF 
ADDITIONAL EVIDENCE

Respondent by letter dated June 10, 1969 to the Honor­
able Lawrence R. Elkington, Clerk of the Court of Appeal, 
First Appellate District enclosed “additional documentary 
evidence to be presented to the Court for addition to the 
record as a supplement to Respondents’ Motion for Leave 
to Offer Additional Documentary Evidence, set for hearing 
June 18,1969 at 10 o ’clock a.m.”



18 Appendix
Appellant opposes this latest offer on the following 

grounds:
1. Such offer does not comply with Rule 41 of California 

Appellate Rules of Court which requires that not only the 
notice but the “ accompanying papers shall be served and 
filed at least 15 days before the date designated for hearing 
of the motion.”

2. The purported evidence consisting of a chart and 
explanatory correspondence, is irrelevant and immaterial 
—cost to the state has not been put in issue; in addition 
the material does not purport to be complete.

Submission of this material and the initial offer of the 
fair hearing decisions are solely for the purpose of obfus­
cating the real issue before the court, i.e., does the pre­
termination of aid procedures meet minimum due process 
requirements.

Dated: June 12, 1969
T homas C. Lynch 
Attorney General

E lizabeth P almer 
Deputy Attorney General 
Attorneys for Defendants 

and Appellants