Elam v. Dalton Plaintiffs' Trial Memorandum of Law Statement of the Case
Public Court Documents
July 17, 1981

Cite this item
-
Brief Collection, LDF Court Filings. Wheeler v. Montgomery Trial Brief and Brief in Support of Motion for Preliminary Injunction, 1968. 78107ce6-c89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0070de0d-0596-4c72-a549-4208c36947c8/wheeler-v-montgomery-trial-brief-and-brief-in-support-of-motion-for-preliminary-injunction. Accessed July 06, 2025.
Copied!
/ / 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION MAE WHEELER, individually and on ) behalf of all others similarly ) situated, ) )Plaintiffs, ) ) vs. ) )JOHN MONTGOMERY, individually and ) Civil Action No. 48303in his capacity as DIRECTOR OF THE ) CALIFORNIA STATE DEPARTMENT OF PUBLIC ) WELFARE, and RONALD BORN, individu- )ally and in his capacity as GENERAL ) MANAGER OF THE SAN FRANCISCO CITY AND ) COUNTY DEPARTMENT OF SOCIAL WELFARE, ) )Defendants. ) ______________________________________________ ) TRIAL BRIEF AND BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION PETER Eo SITKIN, ARTHUR M. SCHAFFER, GILBERT T. GRAHAM, Attorneys for Plaintiffs, 1095 Market Street, San Francisco, California 94103. Telephone: (415) 626-3811 STEVEN J. ANTLER, ROBERT F. SPENCE, LEROY CLARK, CHARLES S. RALSTON, BRIAN GLICK, HENRY FREEDMAN, EDWARD V. SPARER, Of Counsel TABLE OF CONTENTS Page Number STATEMENT OF THE CASE,..0. » • « o » • « 1 JURISDICTION. 2 PRELIMINARY STATEMENT 3 STATEMENT OF FACTS. o • • • • • • 5 ISSUES PRESENTED. 8 STATUTES INVOLVED POINT ONE POINT TWO POINT THREE OAS RECIPIENTS RECEIVE PUBLIC ASSISTANCE AS A MATTER OF STATUTORY RIGHT.................. TERMINATION OF THE GRANTS OF OAS RECIPIENTS WITHOUT AN OPPORTUNITY FOR A HEARING PRIOR THERETO VIO LATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENEMENT........ . THE TYPE OF HEARING DUE PROCESS REQUIRES MUST BE DETERMINED WITHIN THE CONTEXT OF THE SYSTEM IN WHICH IT WILL OPERATE................... 9 10 12 14 A. The specific application of due process to the welfare system....................... 14 B. The recipient and the welfare system......... 14 C. The fair hearing system.................. .. . ig D. Due process requires this court to order that public assistance must be granted to a recipient who appeals the threat ened termination of his aid until the state renders its fair hearing decision..... 18 POINT FOUR - DEFENDANTS' ADOPTED REGULATION DOES NOT MEET THE MINIMUM STANDARDS OFDUE PROCESS. .... ..................... 2 3 A. Impartial state referee..................... 24 B. Notice.......... ............................ 27 ii C. Burden of proof..... 28 D. Record...................... 29 E. Confrontation and cross-examination....... 29 F. Defendants are in error in relying on Thorpe and Dixon to sustain their regulation................................ 31 1. Thorpe v. Housing Authority, 368 U.S. 670 (1967)................... 31 2. Dixon v. Alabama State Board of Education, supra...................... 33 POINT FIVE - A PRELIMINARY INJUNCTION IS REQUIRED TO PROTECT THE CLASS OF OAS RECIPIENTS WHICH PLAINTIFF REPRESENTS FROM IRREPARABLE INJURY........ . . .......... 3 5 A. Preliminary relief sought................... 35 B. The prerequisites for bringing a classaction have been met...................... 35 C. Preliminary relief should be grantedin the instant case....................... 37 1• Terminated recipients awaiting a fair hearing decision................. 38 2. Recently terminated recipients.......... 39 3. Future terminations..................... 39 Page Number Conclusion 42 ill Table of Authorities 1. Abrams v. Jones, 35 Idaho 532, 207 Pac. 724 (1922)............. 25 2. Armstrong v. Manzo, 380 U.S. 545, 552 (1965)...................... 20 3. Beard v. Stahr, 370 U„S„ 41 (1962)............................ 28 4. Bell Lines, Inc, v. U.S,, 263 F. Supp. 40 (S.D. W. Va. 1967)............ 29 5. Birnbaum v. Trussel, 371 F.2d 672 (2d Cir. 1966)................... 13 6. Board of Social Welfare v. County of Los Angeles, 27 Cal. 2d 81, 162 P.2d 630 (1945)........... . 10 7. Cole v. Young, 351 U.S. 536 (1956)........................... 13 8. Colletti Travel Service, Inc, v. U.S., 263 F. Supp. 302 (U.S.D.C. Rhode Island 1966).. 29 9. County of Alameda v. Janssen, 16 Cal. 2d 276 (1940)......................... 10 10. County of Los Angeles v. Frisbee, 19 Cal. 2d 634 (1942)......................... 11 11. County of Los Angeles v, Payne, 8 Cal. 2d 563 (1937).......................... 10 12. County of Sacramento v. Chambers, 33 Cal. App. 142 (1917)......r ............... 10 13. Damico v. California, 88 S. Ct. 526, 19 L. Ed. 2d 647 (1967)........ 2 14. Dixon v. Alabama State Board of Education,. 294 F.2d 150 (5th Cir. 1961).................. 3, 16, 33 15. Goldsmith v. Board of Tax Appeals, 270 U.S. 117, 123 (1926)...................... 13 PageNumber I V 16. Gonzales v. Freeman, 13, 334 F.2d 570 (D.C. Cir. 1964)................. 30 17. Greene v. McElroy, 13, 360 U.S. 474 (1959)........................... 29 18. Henry v. Greenville Airport Comm'n, 284 F.2d 631, 633 (4th Cir. 1960)............. 38 19. Hornsby v. Allen, 13,326 F . 2 d 605 (5th Cir. 1954).................. 30 20. In Re Murchison,349 U.S. 133,' 136, 137 (1955)................. 25 21. Johnson v. Robinson,____ F. Supp. ____-(Civil Action No. 67-C-1883, N.D. 111., December 29, 196 7).............. . 41 22. Joint Anti-Fascist Refugee Committee v, McGrath, 14, 341 U.S. 123, 163............................... 33 23. Kwong Hai Chew v. Colding, 344 U.S. 590, 597-598 (1953)..................... 13 24. Londoner v. Denver, 210 U.S. 373 (1908)............................. 12 25. Mantell v. Dandridge,____ F. Supp. ____ (Civil Action No. 18792, D. Md. , December 4, 1967).................... 41 26. McNeese v. Board of Education, 373 U.S. 668 (1963)............................. 2 27. Monroe v. Pape, 365 U.S. 167 (1961).........*.............. 2 28. Morgan v. U.S., 298 U.S. 468 (1936)....................... 14 29. Morgan v. United States, 304 U.S. 1, 18, 19 (1937)..................... 12 Page Number V 30. Nash v. Florida Industrial Commission, ____ U.S. ____ (1968) (36 Law Week 4046)...... 21 Page Number 31. National Labor Relations Board v. Prettyman, 14, 117 F.2d 786 (6th Cir. 1941).................. 27, 29 32. Ohio Bell Telephone v. Public Utilities Commission, 301 U.S. 292 (1937)........................... 20 33. Ohio Bell Telephone v. Public Utilities Commission of Ohio, 25, 301 U.S. 292 (1932).................... ....... 29 34. Opp Cotton Mills v. Administrator, 12, 312 U.S. 126 (1941)............................. 33 35. Perry v. Perry, 37, 190 Fo2d 601, 602 (D.C. Cir. 1951).......... . . 38 36. Ramos v. Health and Social Services Board, (Civil Action No. 67-C-329, EoD. Wise., November 7, 1967)................ . 40 37 o Ramos v. Health & Social Services Board of State of Wis., 276 Fo Supp. 474 (E.D„ Wis. 1967)............. 41 38. Rios v. Hackney, ____ F. Supp. ____ (Civil Action No. CA 3-1852, N.D. Texas, November 30, 1967).................. 30 39. Slochower v. Board of Education, 350 U.S. 551 (1956)............................. 13 40. Smith v. King, 277 F. Supp. 31, 38 (N.D. Ala* 1967).......... 11 41. Thorpe v. Housing Authority, 368 U.S. 670 (1967).................... ....... 31 42. United States v. Illinois Central R. Co.,' 291 U.S. 457, 463 (1934)...................... 12 VI 43. U.S. v. Chicago, Milwaukee, St. Paul and Pacific Railroad Company, 294 U.S. 499 (1935).......................... 29 44. Wasson v. Trowbridge, 382 F .2d 807 (2d Cir. 1967)................... 25 45. Willner v. Committee on Character and Fitness, 373 U.S. 96 (1963)............................ 13 46. Wong Yang Sung v. McGrath, 339 U.S. 33 (1950)............................ 26 47. Wood v. Hoy,266 F.2d 825 (9th Cir. 1959).................. 28 48. Yakus v. United States, 321 U.S. 414, 441 (1944)...................... 37 49. Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 569 (D. D.C. 1952), aff'd (on other grounds) , 343 U.S. 579 (1952)....... 38 50. Zwickler v. Koota, , . 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967)........ 2 Other Authorities 1. Briar, Welfare from Below; Recipients1 Views of the Welfare System, 14, 54 Calif. L . R. 370 (1966)..................... 16 2. Burris, Constitutional Due Process Hearing Require ments in the Administration of Public Assistance, 16 Am. U.L. Rev. 199, 218 ff.« (1967).......... 23 3. Federal Handbook of Public Assistance 18, Administration, 25,§ 62 00(3) (d).................................. Appendix 4. Note, Federal Judicial Review of State Welfare Practices, 67 Colum.L. Rev. 84 (1967)...................... 2 Page Number V 1 1 Page Number 5. Note, Withdrawal of Public Welfare; The Right to a Prior Hearing, 76 Yale L. J. 1234, 1244 (1967)............... 22 6. Note, 76 Yale L.J. 1242 ......................... 19 7. Reich, Midnight Searches and the Social Security Act, 72 Yale L.J. 1347, 1359-1360 (1963)........... 15 8. Scholz, Hearings in Public Assistance, Social Security Bulletin, July 1948 at p. 3.... 18 9. Schottland, The Social Security Program in the United States, at page 94 (1963)............................. 11 10. Silver, How to Handle a Welfare Case, IV Law in Transition Quarterly,94 Fn. 31 (1967).............................. 16 11. Wedemeyer & Moore, The American Welfare System, 54 Calif. L.Ro 326 (1966)..................... 14 ♦ 1 This is a suit for injunctive and declaratory relief authorized by Title 42, U„S0C., § 1983, to secure rights, priv ileges and immunities established by the Fourteenth Amendment to the Constitution of the United States and the Social Security Act, Title 42, U„S„C., §§ 301, et seq., and the regulations promulgated thereunder. The injunctive and declaratory relief sought relates to the procedure set forth in California Welfare and Institu tions Code, §§ 12200, 12201 and 10950, et. seq., and the regula tions promulgated thereunder, on their face and as interpreted and applied by defendants, wherein financial aid provided to plaintiff Mae Wheeler and others similarly situated, through the Old Age Security (OAS) program is terminated without ade quate and reasonable notice and an opportunity for a prior hearing which satisfies the standards of due process of law and the Social Security Act. This suit was commenced on November 30, 1967. On December 6, 1967, a temporary restraining order was issued by Judge Alfonso J. Zirpoli, to avoid irreparable injury to the named plaintiff, restraining the defendants: " . . . from enforcing against the plaintiff the pro visions of Welfare and Institutions Code, Sections 12200, 12201 and 10950, et seq. and the implementing rules and regulations of the State Department of Social Welfare so chat Old Age Assistance (OAS) shall be restored to plain tiff Mae Wheeler forthwith . . . until such time as a determination is made by this Court regarding plaintiff's application for convening a Three Judge Court pursuant to Title 28, U.S.C., §§ 2281 and 2284." STATEMENT OF THE CASE 2 On December 20, 1967, Judge Zirpoli granted plain tiff's application for the convening of a three-judge court to determine the matters herein and also ordered that pursu ant to Fed. R. Civ. P0 23 (a), (b)(2), (c)(1) and (d)(2): ". o .a class action for declaratory and injunc tive relief may be maintained, the class to consist of all recipients of old age benefits subject to California termination statutes." JURISDICTION The jurisdiction of this court is invoked under Title 28 UoS.C. §§ 1343(3) and 1343(4), providing for orig inal jurisdiction of this court in suits authorized by Title 42 U.S„C. § 1983; jurisdiction is further conferred on this court by Title 28 U.S.C. §§ 2201 and 2202 relating to decla ratory judgments. In accordance with Title 28 U.S.C. §§ 2281 and 2284, a three-judge court has been convened to determine the issues herein. This being an action authorized by Title 42 U.S.C. § 1983, abundant jurisdictional precedent exists. See, e.g., Zwickler v. Koota, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967); McNeese v. Board of Education, 373 U 0S. 668 (1963); Monroe v. Pape, 365 U.S. 167 (1961). For a useful review of the jurisdictional basis, plaintiffs respectfully refer the court to the Note, Federal Judicial Review of State Welfare Practices, 67 Colum. L 0 Rev. 84 (1967). The Supreme Court most recently passed upon the jurisdiction of 'federal courts in public assistance cases in Damico v. California, 88 S. Ct. 526, 19 L. Ed. 2d 647 (1967). 3 In California a recipient of OAS receives public assistance as a matter of right. As in the case of plain tiff Mae Wheeler, an elderly diabetic woman of 75, regular monthly OAS payments make the difference between subsistence and starvation. All parties to this action now agree that opportunity for a hearing must precede termination of public assistance. At present, the state fair hearing comes well after termination of aid. Since the financial assistance provided by OAS is necessary for recipients to have even minimally adequate health, care, food and other necessities, the subsequent hearing— even though it may vindicate the recipient legally— cannot possibly recompense the recipient for the hunger and suffering resulting from the termination of aid without a prior hearing. The Due Process Clause of the Fourteenth Amendment requires that the hearing afforded welfare recipients be adopted to their particular needs. Fortunately, within the welfare system a hearing designed to provide the elements of fundamental fairness already exists. This hearing— the fair hearing— has been developed and refined by the Depart ment of Health, Education and Welfare (HEW) over the past thirty years. Defendants have attempted to meet the obvious con stitutional violation in their procedures by adopting a PRELIMINARY STATEMENT 4 regulation which at best can be interpreted as providing for an informal prehearing conference. The regulation is wholly inadequate to the task before it, that is, to provide an OAS recipient before termination with a hearing at which a fair determination can be made. Plaintiffs contend that nothing short of the existing fair hearing, now provided after termi nation, will meet the minimum standards of due process. When a vital interest, such as the right to life or to receive minimum subsistence is at stake, the procedural safeguards afforded the individual must be great. This is especially so when viewed in light of the resources and abil ities of the individuals affected, and when viewed against the fact that no state interest, other than economy, is threatened. Finally, plaintiffs contend that the probability of success on the merits in this action is sufficiently strong in light of the serious constitutional violations already acknowledged to exist by defendants to warrant the granting of a preliminary injunction. 5 Plaintiff, Mae Wheeler, a 75-year old widow, had been receiving OAS continuously and in varying amounts since December 1959, to supplement her Social Security benefits, currently in the amount of $44.60 per month. Although suffer ing from a heart condition and diabetes, she lives alone in a San Francisco Housing Authority apartment. [Defendants' Exhibit A, p. 3.] Defendant county received an anonymous telephone call on August 30, 1967, concerning plaintiff's eligibility for OAS. Plaintiff was contacted by defendant county on August 30, 1967, and in that telephone conversation plaintiff stated that she had received and subsequently transferred during April 196 7, the proceeds of a check in the sum of $4,582.15 to her grandson, Bobby Lee Wheeler, in accordance with her deceased son's deathbed wish. [Pre-Trial Order (hereinafter sometimes called PTO), p. 5.] Defendant county discontinued Mrs. Wheeler's OAS grant effective August 31, 1967. [Defendants' Exhibit A, p. 2.] During September, October and November 1967, Mrs. Wheeler did not receive any public assistance. [PTO, p. 5.] Mrs. Wheeler, with the help of a social worker from the Public Housing Authority attended numerous conferences with county welfare personnel to explain the disposition of the funds she had received and to attempt to have her aid restored. [Ibid.] STATEMENT OF FACTS 6 On November 2, 1967, the county, having weighed the evidence presented, concluded that Mrs. Wheeler's transfer of her son's insurance was, in fact, to maintain her eligibility for OAS. The county, therefore, confirmed its discontinuance of Mrs. Wheeler's OAS and requested repayment of assistance granted between May 1, 1967 and August 31, 1967. [Defendants' Exhibit A, p. 4.] On November 16, 1967, plaintiff filed an appeal with defendant John Montgomery, Director of the Department of Social Welfare, and requested a fair hearing, together with a further request that her aid be restored and continued pending a decision after said hearing. The hearing was held on December 22, 1967. [PTO, p. 6.] On January 12, 1968, defendant John Montgomery adopted the proposed decision of the hearing officer. [Defendants' Exhibit A.] The hearing officer concluded that the county department had erroneously terminated Mrs. Wheeler as there were no inconsistencies or any other evidence to contradict the sworn statements of Mrs. Wheeler or her grand son. He found that Mrs. Wheeler's deceased son owed her grandson $4,200.00 and that just prior to his death, he had asked Mrs. Wheeler to repay this debt from the proceeds of his veteran's insurance policy. Because of this deathbed request, the hearing officer found that Mrs. Wheeler felt she had a moral, if not legal, duty to transfer the proceeds of the insurance policy to her grandson. 7 Defendants' withdrawal and termination of Mrs. Wheeler's OAS grant caused her immediate and irreparable injury in that she did not have sufficient funds with which to subsist on a day-to-day basis without her full OAS grant. [PTO, p. 5.] All of the actions of the county with respect to Mrs. Wheeler were taken pursuant to the California Welfare and Institutions Code and the regulations thereunder. [PTO, p. 6. ] In order to receive federal funds for the state OAS program, California statutes and regulations are required to confrom to the requirements of the Social Security Act and the United States Constitution. [PTO, pp. 4-5.] While the defendant county is authorized to grant financial assistance under the OAS program, it may do so only in accordance with the rules and regulations of the State Department of Social Welfare (hereinafter sometimes called SDSW) which are manda tory upon all counties. [Declaration of Defendant Born, pp. 2-3.] If their grants are terminated, OAS recipients have a right to a fair hearing before state referees who have the power to rule on the validity and constitutionality of OAS statutes and regulations. [PTO, pp. 5-7.] However, state law and regulations do not permit the continuation of assist ance pending the fair hearing. [Declaration of Defendant Born, p. 3.] As of January 1968, the average'time from fair hearing requests to decision was six months. [PTO, p. 7.] There were, as of December 1967, 13,964 recipients 8 of OAS in San Francisco County. [Plaintiffs' Exhibit 9.] Mrs. Wheeler was one of 111 OAS recipients in San Francisco County who were discontinued in 1967 because of increased personal property holdings. [Plaintiffs' Exhibit 8.] She was one of 44 San Francisco OAS recipients who requested a fair hearing in 1967. [Plaintiffs' Exhibit 10.] During fiscal 1967,* on the average of 285,174 indi viduals received OAS cash grants monthly in California. The average monthly amount granted was $101.51. During the year there were 3,164 requests for fair hearings* of these, 382 requests were filed by OAS recipients; 1,766 requests were finally determined by fair hearings and 1,279 requests were resolved by other means. [PTO, pp. 6-7.] On December 1, 1967, there were 1,210 requests for fair hearings pending, 116 in the OAS category, including the request filed by Mrs. Wheeler. [PTO, p. 7.] ISSUES PRESENTED The initial issue presented by the litigation is whether the termination, withdrawal or suspension of the grants of OAS recipients without an opportunity for adequate and reasonable notice and a hearing prior thereto violates the due process clause of the Fourteenth Amendment? *This is the latest period for which the complete sta tistics are available. 9 Defendants agree with plaintiffs' contention that due process requires a hearing prior to the termination, withdrawal or suspension of aid to recipients of the cate gorical aid programs. Thus, the ultimate issue for this court is the scope of the hearing required by the due process clause of the Four teenth Amendment and the Social Security Act. STATUTES INVOLVED The statutes of the State of California, the appli cation of which plaintiffs seek to enjoin, are California Welfare and Institutions Code, §§ 12200, 12201 and 10950, et seq„, and the regulations adopted thereunder. 10 POINT ONE OAS RECIPIENTS RECEIVE PUBLIC ASSISTANCE AS A MATTER OF STATUTORY RIGHT. Under both federal and California law, a person once found eligible receives OAS as a matter of right. Pursuant to the requirements set forth in the Social Security Act, the California Welfare and Institutions Code states that aid shall be granted to any eligibile person. [See § 12050.] In Board of Social Welfare v. County of Los Angeles, 27 Cal. 2d 81, 162 P.2d 630 (1945), the California Supreme Court held that the county had a mandatory duty to furnish aid to an individual as of the date of his eligibility for OAS. A similar result was reached as early as 1914 in Sacramento Orphans & Children's Home v. Chambers, 25 Cal. App. 536, 144 P. 317 (1914), where it was stated that " . . . the duty of the state to aid helpless minors is affirmed, or at least recognized in the California Constitution. . . . " [At p. 543.] In the same case the court further said that " . . . 'welfare appropriations‘ are not to be regarded in light of charity proceeding." [At p. 544.] See also County of Los Angeles v. Payne, 8 Cal. 2d 563 (1937) and County of Sacra mento v. chambers, 33 Cal. App» 142 (1917). California cases which establish the duty to provide assistance also establish the correlative right to receive assistance once one is found to be eligible. See Board of Social Welfare v. Los Angeles County, supra, at page 86; County of Alameda v. Janseen, 16 11 Cal. 2d 276 (1940) at page 281; County of Los Angeles v. Frisbee, 19 Cal. 2d 634 (1942) at page 639. A number of commentaries by Social Security Admin istration and HEW personnel declare public assistance to be a statutory right. Charles I. Schottland, a government official, who was privy to the enactment and effectuation of the statute, writing in 1963, stated that in all federally-aided public assistance programs " . . . regular monthly payments are made to needy persons and such persons have a right to such assist ance— a right that will be enforced by the courts." Schott land, The Social Security Program in the United States, at page 94 (1963) . See also Attmeyer, The Formative Years of Social Security, at page 58 (1966)„ Recently, a three-judge federal court stated with respect to the Alabama Aid to Dependent Children program that: "As noted earlier, Aid to Dependent Children finan cial assistance is a statutory entitlement under both the laws of Alabama and the federal Social Security Act, and where the child meets the statutory eligibility requirements he has a right to receive financial bene fits under the program." Smith v. King, 277 F. Supp. 31, 38 (N.D. Ala. 1967). Indeed, defendants themselves have conceded that once eligible, a recipient receives OAS as a matter of statutory right. [PTO, p. 4, and Deposition, Mr. Frank Vasquez, Chief Referee, SDSW, at page 28,] 12 POINT TWO TERMINATION OF THE GRANTS OF OAS RECIPIENTS WITHOUT AN OPPORTUNITY FOR A HEARING PRIOR THERETO VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. Plaintiffs assert and defendants concede that due process requires a hearing prior to the termination, with drawal or suspension of public assistance. [Pre-Trial Order, p. 23]. The Supreme Court has repeatedly held that where the individual's essential interests are at stake, final government action must await an opportunity for a hearing. The Court met this issue as early as 1908 in Londoner v. Denver, 210 U.S. 373 (1908), which involved the assessment of a municipal street improvement tax. The taxpayer had the right to be heard "before the tax became irrevocably fixed." 210 U.S. at 385. In Opp Cotton Mills v. Administrator, 312 U.S. 126 (1941), the Court, in upholding the application of the minimum-wage standards of the Fair Labor Standards Act to a textile manufacturer, stated that due process does "not require a hearing at the initial stage or at any particular point . . . in an administrative proceeding so long as the requisite hearing is held before the final order becomes effective." 312 U.S. at 152-53. Accord, United States v. Illinois Central R. Co., 291 U.S. 457, 463 (19.34); Morgan,_v._ United States, 304 U.S. 1, 18-19 (1937) . More recently the Court has held that due process 13 requires the government to grant opportunity for a hearing before it terminates a man's employment, Slochower v. Board of Education, 350 U.S. 551 (1956); Cole v. Young, 351 U.S. 536 (1956); cf. Greene v. McElroy, 360 U.S. 474 (1959); before it may expel a resident alien, Kwong Hai Chew v^ Colding, 344 U.S. 590, 597-598 (1953) ; before it may deny a man a license, or certificate of admission, to practice his profession, Willner v. Committee on Character and Fitne_ss, 373 U.S. 96 (1963); Goldsmith v. Board of Tax Appeals, 270 U.S. 117, 123 (1926). In addition, a number of recent court of appeals' decisions have required a hearing before an individual is disbarred from receiving government contracts, Gonzales v. Freeman, 334 F.2d 570 (D„C. Cir. 1964); before a student may be expelled from a state university, Dixon, v̂ Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), cert denied, 368 U.S „ 930 (1961); before a municipal hospital terminates a doctor's employment; Birnbaum v. Trussel, 371 F.2d 672 (2d Cir. 1966); before a liquor license may be denied. Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964), rehearing denied, 330 F. 2d 55 (5th Cir. 1964) 0 14 POTNT THREE THE TYPE OF HEARING DUE PROCESS REQUIRES MUST BE DETERMINED WITHIN THE CONTEXT OF THE SYSTEM IN WHICH IT WILL OPERATE. A. The specific application of due process to the welfare system. It is axiomatic that the safeguards embodied in a due process hearing for welfare recipients can only be deter mined after careful study of the particular system within which such a hearing will operate. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 163 (concurring opinion, Mr. Justice Frankfurter); National Labor Relations Board v. Prettyman, 117 F.2d 786 (6th Cir. 1941); Morgan v. U.S., 298 U.S. 468 (1936). B. The recipient and the welfare system.* By definition, welfare recipients must be poor. They are also likely to be uneducated, ignorant of their legal rights and dependent upon the welfare agency. [Briar, Welfare from Below: Recipients' Views of the Welfare System, 54 Calif. L.R0 370 (1966).] Although one purpose of public assistance is to rehabilitate recipients and return them to *See, generally, Wedemeyer & Moore, The American Welfare System, 54 Calif. L „R. 326 (1966). 15 the mainstream of society, the welfare system often further isolates and segregates recipients. As President Lyndon B. Johnson recently said: "The welfare system today pleases no one. it is criticized by liberals and conservatives, by the poor and the wealthy, by social workers and politicians, by whites and Negroes in every area of the nation." [Speech, San Antonio, Texas, January 2, 1968.] Present laws and regulations require that welfare department personnel investigate the intimate details of recipients' lives in order to continually be sure that reci pients are eligible for the aid they receive. Reich, Midnight Searches and the Social Security Act, 72 Yale L.J. 1347, 1359- 1360 (1963). When the county department errs it errs by prematurely terminating aid. In five percent (5%) of the cases studied by the State Eligibility Control Unit adult recipients were erroneously terminated. [Eligibility Control Letter, No. 2064, Plaintiffs' Exhibit 2.] The Control Unit concluded that assuming their findings were reflective of the universe of such actions, several thousand recipients had their grants terminated prematurely. [At p. 1.] Recipients have one primary remedy to contest adverse action by the county welfare department — the fair hearing. However, this remedy is rarely employed. Even though there were 23,555 OAS recipients terminated for reasons °ther than death in fiscal 1967, only 382 OAS recipients filed for hearings. This figure is 1.1 appeals per thousand active cases. [See State Department of Social Welfare Annual 16 Report, 1966-1967, Table 61, Plaintiffs' Exhibit 4.] Also, termination is only one of several grounds for appeal. A number of factors explain why appeals are not very frequently filed by welfare recipients. Many recipients do not know about the appeal process. [Briar, supra, at p. 379.] Appeals take a long time from request to decision. [Welfare and Institutions Code, §§ 10952, 10958, 10959; Deposition of Mr. Frank Vasquez, p. 43.] Even when victorious, the claim ant's aid is only reinstated as of the date the check was illegally withheld and the county department is not penalized in any way. [Silver, How to Handle a Welfare Case, IV Law in Transition Quarterly, 94 Fn. 31 (1967).] Assistance from lawyers and independent social workers is not available to most recipients. Another reason for few appeals was suggested in a recent article: "Finally, the brutal need of the recipient erro neously denied assistance will make him all the less able to pursue the subsequent hearing now available. Faced with the need to live somehow, he can scarcely devote the time and energy necessary to effectively show his continued eligibility on appeal. Because of this, it is hardly surprising that recipients rarely even request a hearing after the administrator stops payments. In Illinois, for instance, appeals were filed in less than one-third of one percent of the 33,000 public assistance cases closed between July, 1963 and June, 1964 for reasons other than death of the recipient." Note 76 Yale L.J0 1239, 1244 (1967). C. The fair hearing system. Courts, when faced with cases raising the right to a hearing, have had no established hearing procedure to rely upon. See, e.g., Dixon, supra. These courts in an attempt 17 to reach a just result have, -therefore, analogized to comparable situations, balanced the individuals' interests with the inter ests of the public body or applied equitable doctrines. In contrast, in the present case, the federal govern ment has developed, through 30 years1 experience, a hearing procedure particularly suited to the welfare system. The special disabilities of welfare recipients and their utter dependence on the system for their minimum subsistence led to the development of the procedural rights of the present fair hearing system,, This system was instituted by HEW in order to meet the particular needs of public assistance adminis tration. HEW's regulations contain the elements of a hearing which meet the requirements of fundamental fairness. Every state welfare plan must contain, in part, the following pro visions: "l. For specific designation of responsibility within the agency for conduct of hearings, "2. For rendering decisions that are binding on the State and local agency, and "3. For establishing hearing procedures to assurethat: "d. The hearing will be conducted by an im partial official (or officials) of the State agency. "g. The claimant has the opportunity (1) to examine all documents and records used at the hear ing; (2) at his option, to present his case himself or with the aid of others, including counsel; (3) to bring witnesses; (4) to establish all pertinent 18 facts and circumstances; (5) to advance any arguments without undue interference; and (6) to question or refute any testimony or evidence." (See Appendix attached hereto for the full federal Handbook of Public Assistance Administration sections governing fair hearings.) In 1935, when the Social Security Act went into effect, there were no precedents for hearings in public assis tance. The states each drafted their own hearing procedures. "After 6 years of operation, the Social Security Board issued a set of recommended standards to be used by State agencies as a guide in clarifying their proce dures. After 6 more years of observing, comparing, analyzing and weighing the various procedures developed by the States, the Social Security Administration issued a new policy statement on hearings. This release estab lished definite procedural requirements based on the experience gained." Scholz, Bernard W., Hearinqs in Public Assistance, Social Security Bulletin, July 1948, at page 3. Any termination of aid without the provision of a hearing embodying the standards of the "fair hearing" is a sham and a fraud. Given the needs of the terminated welfare recipients this court should order more safeguards for the recipients rather than less. D. Due process requires this court to order that public assistance must be granted to a recipient who appeals the threatened termination of his aid until the state renders its fair hearing decision. Public assistance benefits are calculated to meet recipients1 minimum needs for living after all other income is considered. Therefore, during the period of time in which the recipient is waiting for a hearing decision, he is living 19 below the level which defendants themselves state to be necessary for survival and decency. Such suffering, danger ous to the maintenance of life, cannot be remedied once endured. As noted in a recent Yale Law Journal article: "The dispositive consideration is that a subsequent hearing cannot rectify a prior mistake if the needy reci pient was in fact eligible, and if the state guessed wrong in terminating or suspending his assistance, he will have been denied the aid necessary for his basic suste nance. The requirement in all states that those seeking public assistance dispose of all their assets in excess of a stated amount makes this danger all the more real. "This factor does more than show the stark need the recipient will face when payments are erroneously denied. In all cases where he has disposed of assets to become eligible for assistance, the individual has a strong reliance claim to a due process hearing before his pay ments are cut off. The government has induced him to change his position and has therefore incurred a special obligation to treat him fairly." 76 Yale L.J. 1242. In cases involving less compelling interests than the right to life and minimal subsistence, courts have held that due process requires a full adjudicatory hearing. Thus, for example, the Supreme Court, in ruling that a hearing was required prior to the entry of an order by the Public Utilities Commission directing a telephone rate refund, stated: "Regulatory commissions have been invested with broad powers within the sphere of duty assigned to them by law. Even in Quasi-judicial proceedings their in formed and expert judgment exacts and receives a proper deference from courts when it has been reached with due submission to constitutional restraints. Indeed, much that they do within the realm of administrative discre tion is exempt from supervision if those restraints have been obeyed. All the more insistent is the need, when power has been bestowed so freely, that the 1inex- plorable safeguard1 of a fair and open hearing be main tained in its integrity. The right to such a hearing 20 is one of the rudiments of fair play assured to every litigant by the 14th Amendment as a minimal requirement. There can be no compromise on footing of convenience or expediency, or because of a natural desire to be rid of harassing delay, when that minimal requirement has been neglected or ignored." Ohio Bell Telephone Co. v. Public Utilities Comm., 301 U.S. 292 (1937). The facts in the instant case demonstrate the import ance of a fair hearing before aid is terminated. Here, the county decision to terminate was found to be in error by the impartial state referee presiding at the fair hearing. In fact, the hearing officer, in his decision indicated that no evidence had been presented by the county to support the termination of Mae Wheeler's aid. Mrs. Wheeler underwent severe hardships as a result of the termination of her OAS. Without court intervention, Mrs. Wheeler would, in all proba bility, still be waiting for a hearing decision. She would be without her OAS even though she was given an opportunity to provide the county with evidence of her eligibility at an informal conference held before a responsible county offi cial . As the Supreme Court said in Armstrong v. Manzo, 380 U.S. 545, 552 (1965), the opportunity to be heard ". . . must be granted at a meaningful time and in a meaningful manner." California would grant the opportunity for a fair hearing only after a welfare department had acted to alter radically the claimant's position vis-a-vis the agency. The process of appeal makes the claimant sustain more than the burden of proof, it imposing the burden of life itself. The Supreme Court recently recognized that a future 21 award of money can mean little to a person of modest means faced with immediate economic hardship. Nash v. Florida Industrial Commission, ______ U.S.______(1968) (36 Law Week 4046) . Since the fair hearing system is already an integral and required part of welfare administration, the State's re sistance to continuing aid until the fair hearing decision appears to be based on economic considerations.* The two items of increased cost for the State will be additional referees and hearing expenses and the additional amount of aid paid to recipients pending the hearing decision. The major portion of this increased cost will be borne by the federal government which contributes approxi mately 50% of the administrative and assistance costs in the categorical aid program. HEW has specifically stated that federal financial participation is available to California if aid payments continue until a fair hearing decision is rendered. [Letter of St. John Barrett, Deputy General Counsel, HEW, to Peter E. Sitkin, Plaintiff's Exhibit 1.] *It should be noted that any hearing before termination of assistance will cost the State some money. Even the informal conference provided in the State's regulation will require an amount of caseworkers' time and, therefore, require the hiring of additional caseworkers. 22 The State of Mississippi recently proposed a prior fair hearing system which gives the recipient ten days notice of the county's intention to terminate. If a recipient requests a hearing within the ten days, aid will be continued pending the decision; if no hearing is requested aid will be termina ted. * New York State, which holds a large number of fair hearings, requires that a full fair hearing in cases of sus pension or discontinuance be held within ten working days from receipt of the hearing request, and that a decision must be rendered within 12 working days from the hearing date. [18 NYCRR 84.6, 84.15.] If New York can observe these time limits then so can California. On this basis if aid were continued, a recipient would only receive, at most, one additional wel fare check while awaiting the fair hearing decision. After reviewing the balance between individual deprivation and the public purse, one author has concluded: "Taken together, these considerations compel the conclusion that the government interest in guarding the public treasury by postponing hearings should not justi fy subordination of the private interest in the indivi dual case, and, _a fortiori, in the totality of cases. The recipient should have a constitutional right to a hearing before his welfare payments are discontinued." Note: Withdrawal of Public Welfare: The Right to a Prior Hearing, 76 Yale L„J. 1234, 1244 (1967). ♦Memorandum to Mississippi County Welfare Depart ments. Re: Changes ih Policy on Appeals and Fair Hearings - Revisions for Public Assistance Manual dated November 15, 1967. 23 POINT FOUR DEFENDANTS' ADOPTED REGULATION DOES NOT MEET THE MINIMUM STANDARDS OF DUE PROCESS. Due process requires that nothing less than the opportunity for a Social Security Act "fair hearing" be affor ded OAS recipients before the termination of their grants. Indeed, an analysis of existing authority indicates that a compelling constitutional argument can be made for a hearing which provides a welfare recipient more procedural safeguards than is presently provided in the "fair hearing." The authors of a recent article in the American University Law Review concluded after extensive research that a public assistance hearing must contain, at a minimum, the following elements: notice, discovery, right to counsel, oral hearing, confrontation, cross-examination, impartial tribunal, decision on the record and judicial review. Constitutional Due Process Hearing Requirements in the Administration of Public Assist ance, 16 Am. U.L. Rev. 199, 218 ff. (1967). It has also been forcefully asserted that a welfare recipient has the right to a "full trial type hearing." Note: Withdrawal of Public Welfare: The Right to a Prior Hearing, 76 Yale L.J. 1234, 1239 (1967). At best, the adopted regulation can be interpreted to provide only for an informal conference prior to termina tion. In no event can it be considered to meet minimum due process standards. The regulation: 24 (a) fails to provide for an impartial state referee; (b) does not permit a recipient adequate time to prepare for the conference; (c) places the burden of proof on the recipient; (d) does not require a record or a decision based upon the evidence adduced at the conference; and (e) significantly does not provide for confronta tion and cross-examination. A. Impartial State Referee. The adopted regulation provides for an informal conference before the "caseworker or another responsible person in the county department." As has been noted earlier, Mrs. Wheeler was affor ded an opportunity to have an informal conference with her caseworker and another responsible person in the county depart ment (the county appeals officer). Her request for restora tion was denied even though no evidence contrary to her posi tion was presented. The informal conference provided in defendants1 regulation has been offered to terminated OAS recipients as a matter of general practice in San Francisco.* Informal conferences (presided over by the very indi viduals who either made the initial decision to terminate or *Deposition of Mary Jane Rand discussing the notice and informal conference provided Mae Wheeler and the fact that such notice and conference is given as a matter of general practice, January 15, 1968, pp. 8 to 16. 25 who, in the alternative, will assert the county's position against the recipient in a subsequent fair hearing) are lack ing in impartiality. In Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967), the court recognized: "It is too clear to require argument or citation that a fair hearing presupposes an impartial trier of fact and that prior official involvement in a case renders impartiality most difficult to maintain."(P. 813.] Due process requires a referee who is not both investigator and judge, arbiter and advocate in the same cause. Ohio Bell Telephone v. Public Utilities Commission of Ohio, 301 U.S. 292 <1932)‘ In re Murchison, 349 U.S. 133, 136-137 (1955); Abrams v. Jones, 35 Idaho 532, 207 Pac. 724 (1922). This principle of separation of function finds clear expression in the HEW fair hearing regulations which require the states to have their hearings conducted by an impartial official (or officials) of the state agency." Federal Handbook, § 6200(3)(d). The HEW interpretation of this section states: "Impartial official means that the hearing officer has not been involved in any way with the action in question. Any person who had advised or given consul tation in any way on the question at issue is disquali fied as the hearing officer on that case. For example, a field supervisor who has advised the local agency in the handling of the case would be disqualified." [§ 6334.] Similar requirements are placed on all federal administrative agencies by Section 5(c) of the Administrative Procedure Act. 5 U.SoC0, § 1004 (1964) „ So important is this principle of separation of function to administrative fairness, that Justice 26 Jackson in Wong Yang Sung v. McGrath, 339 U.S. 33 (1950) said it was the basic purpose and principal contribution of the Administrative Procedure Act. County personnel cannot adequately function as hearing officers because of the relationship of the counties to the SDSW. Day-to-day administration of the OAS program is left to the counties while the policy and regulations are made at the state level. County personnel are unable to independently resolve many issues which arise in fair hearing requests, because they are obliged to follow the rules and regulations of the SDSW. [Declaration of Ronald Born, pp. 2-3; see also PTO, p.6.] For example, see the statement by Mary Jane Rand explaining that because of Welfare and Institutions Code, § 15001; "The County could not resolve the issue with our client. There fore the situation had to go to a Fair Hearing." [Emphasis added.] [Statement of Mary Jane Rand, enclosed with statis tics, p. 3, Plaintiffs' Exhibit 10.] State fair hearing referees, on the other hand, have the power and authority to rule upon the validity of both state regulations and statutes. [Deposition of Frank Vasquez, p. 15) see also PTO, p. 7.] Thus, if a recipient had to challenge the validity of a statute or regulation asserted by the county to deny her benefits, she would-be unable to receive a hearing on such an issue until after termination. 27 B. Notice. The regulation focuses almost exclusively on the type of notice given a recipient. Yet, the regulation utterly fails to provide a reasonable period of time to pre pare for the hearing. Davis, in his Treatise on Administrative Law, Vol. 1, § 8.05, states: ”. . . the key to pleading and notice in the administrative process is adequate opportunity to pre pare . . . " [At p. 530.] See also N 0L .R„B. v. Prettyman. --uPr-̂ ' j i i A r _v. American Potash & Chemical Corp., 98 F.2d 488 (9th Cir. 1938); Armstrong v. Manzo. supra. The regulation provides that a recipient who is to be terminated will receive at least three days' notice prior to the withholding of a warrant. PSSM 44-325.43. The regul ation further provides that the notice shall inform the recipient, .inter alia, that least one day prior to the with holding date, an informal conference will be held. Thus, a recipient must be able to prepare all of the information required to reestablish eligibility within a period of two days or have his grant withheld. Not even summary eviction proceedings usually involving only the issue of nonpayment of rent are resolved this promptly. Moreover, the recipient has no time to engage in discovery or review the evidence to 28 be presented against him prior to the informal conference. Present fair hearing procedure provides the recipient with at least ten days'notice before the date of the hear ing. Welfare and Institutions Code § 10952. C. Burden of Proof. Contrary to the provisions of the adopted regula tion, the burden of proof must be on the county to establish ineligibility. Beard v. Stahr, 370 U.S„ 41 (1962) (dissent ing opinion); Kwong Hai chew v. Rogers, supra; Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959). In Beard, supra, the court majority dismissed the complaint ruling that the case was premature, but Justices Black and Douglas, dissenting, reached the merits of plaintiff's contention that an army officer should not carry the burden of proof in dismissal proceedings and stated: "Dismissal is one thing; dismissal with stigma., as here, is quite another,, in comparable situations the Court has been required to carry the burden of proof. Unless this burden is meticulously maintained, discharge for race, for religion, for political opinion, or for beliefs may masquerade under unproved charges. This right, like the right to be heard, is basic to our society." [At p. 43.] The regulation clearly places the burden of proof on the recipient to "reestablish eligibility" at the informal conference even though an OAS recipient, once found eligible, 29 has a statutory right to welfare; the regulation provides that the withheld warrant will be delivered as soon as there is eligibility to receive it. [PSSM 44:325.432.] Under the regulation, on the basis of an _ex parte decision of the county welfare department, a recipient will be found to be ineligible and unless the recipient can sustain the burden of reestablishing eligibility her warrant will be withheld. D. Record. Ihe regulation also fails to provide for a record or for a decision which is supported by the evidence adduced at the conference. Colletti Travel Service, Inc, v. U.S., 263 F. Supp. 302 (UoS.D.C. Rhode Island, 1966); Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio, supra; Bell Lines, Inc, v. U.S., 263 F. Supp. 40 (S„D. W. Va. 1967); U. S„ v. Chicago, Milwaukee, St. Paul and Pacific Railroad Company, 294 U.S. 499 (1935) . Eo Confrontation and Cross-Examination. A number of recent court decisions establish the right to confront and cross-examine at administrative hear ings. Willner v. Committee on Character & Fitness, supra, p. 103, involving right of confrontation of Bar applicant by his accussors; Greene v. McElroy, supra, p. 496, involving right of confrontation by government contractor's employee; N.L.R.Bo v. Prettyman, supra, p. 70, involving right of employer to cross-examine witnesses in a National Labor 30 >1 Relations Board hearing,* Gonzales v. Freeman, supra, p. 578, involving right to cross-examine adverse witnesses in a debar ment from participating in governmental contracts. Where a county welfare department had established its case at a fair hearing solely on the basis of hearsay evi dence contained in the report of a social worker, a Texas federal district court reversed the denial of public assist- ance* £.4p.g. v* Hackney,____F. Supp. _____ (civil Action No. CA 3-1852, N«,D„ Texas, November 30, 1967) . The court held as a matter of due process: The evidence contained in the caseworker's report could not in any manner be relied upon as a basis for J^yiHg the relief sought in the absence of the plain tiff s being given an opportunity to cross-examine the persons who made the statements contained in the report." [Citing Hornsby v. Allen, supra. 1 Slip opinion at p. 3.* The Rios court also expressly incorporated the due process safe guards set forth in Hornsby v, Allen into the requirements for a public assistance fair hearing. The adopted regulation contemplates only a meeting with the county welfare personnel and not with the third parties who provided the information which prompted county action. If the recipient meets with "another responsible person" he will "learn" the information upon which the county relies only through second or third party hearsay. The individual facing termination will "discuss the matter informally," but will be unable to question, confront or effectively meet the "evidence" tution requires. against him as the Consti- 31 Fo D t̂-g-n<̂ an^s are in error in relying on Thorpe and Dixon sustain their regulation. 1* Thorpe v. Housing Authority, 368 U.S. 670 (1967). Defendants ’ reliance on the Thorpe case is wholly- misplaced. Mrs. Thorpe had been notified of the termination of her tenancy by the local public housing authority one day after she was elected president of a tenant's organization. Judgment of eviction was obtained on the basis of termination of the lease although she claimed she had a right to proper notice of the charges against her and a hearing. While the case was pending in the United States Supreme Court the U. S. Department of Housing and Urban Development (HUD) issued a binding circular, which led counsel for the tenant to argue that the judgment of eviction could be reversed, without any reference to the constitutional issues raised, for failure to comply with the circular. The Supreme Court stated: [ T jhe basic procedure [the circular] prescribes is to be followed in all eviction proceedings that have not become final. if this procedure were accorded to the petitioner, her case would assume a posture quite different from the one now presented." [At p. 67 .] The court then remanded the case to the North Carolina Supreme Court for a construction of the circular. The state Supreme Court held the circular not to be applicable to the termina tion of Mrs. Thorpe’s tenancy, 157 S.E.2d 147 (1967). The case is again before the Supreme Court, certiorari being granted on March 5, 1968. [36 L.W. 3346.] 32 The Supreme Court never reached the question of what minimum notice and hearing standards were required prior to termination of Mrs. Thorpe's tenancy. it carefully refrained from any comment on the procedural issues raised and did not in any way indicate that the HUD requirement would meet due process standards. The text of the adopted welfare regulation and the letter to Judge Zirpoli from Deputy Attorney General Mayers, dated January 5, 1968, indicate that defendants are attempting to meet due process with a Thorpe circular-type regulation; that is, the welfare department, prior to termination, will tell the recipient of the nature of the information, the reason for withholding of a warrant, and will discuss the matter "informally" for purposes of "clarification" and "possibly resolution." Even assuming, arguendo, that the Thorpe circular is sufficient in the public housing area, it will not suffice in the case of the termination of welfare assistance. When a person is being evicted from public housing he has a full judicial hearing before the eviction notice becomes final and he loses his apartment. Regardless of whether or not he gets a hearing in the Housing Authority, he gets one in court. It may be, as was argued in Thorpe, that the court hearing is limited in scope, but at least issues concerning the legality of the eviction may be raised. In any event, the basic standard enunciated by the Supreme Court that a full hearing must be given somewhere before the decision of the administrative agency becomes final is pro forma satisfied. Opp Cotton Mills v. Administrator, supra. 33 2. Dixon v. Alabama State Board of Education, supra. The Dixon guidelines, standing alone, appear not to require a prior state "fair" hearing or the minimum elements asserted by plaintiffs to be required by due process standards. However, Fifth Circuit guidelines were established only with respect to the type of "hearing required prior to the expul sion from a state college or university." [At p„ 158.] The court, throughout the opinion, recognizes that its view of what due process requires is limited to an examination of the particular "circumstances and interests of the parties in volved,," [At p. 155.] The test, indeed the analysis undertaken by the court, was derived directly from Joint Anti-Fascist Committee v. McGrath, supra. The Dixon court, after reviewing the cir cumstances of the case and balancing the interests of the students and the university, rendered a decision favorable to the students. When commenting that no "full dress judicial hearing, with the right to cross-examine witnesses, is required," the Court specifically states: "Such a hearing, with the attending publicity and disturbance of college activities, might be detrimental to the college's educational atmosphere qnd impractical to carry out. Nevertheless, the rudiments of an adver sary proceeding may be preserved without encroaching upon the interests of the college." [At p. 159.] 34 No state interest, comparable to protecting the educational atmosphere exists in the instant case and without such a compelling interest, a full trial-type hearing is required and would have been required, it is submitted, by the Fifth Circuit in Dixon. Finally, in viewing the interests of the students Dixon and the interest of a recipient such as Mrs. wheeler who faced irreparable injury as a result of the termination her welfare grant, it is abundantly clear that greater due process protection is required in the case of a recipient facing the loss of her only means of survival than is required in the case of a student facing the loss of his right to attend a public educational institution. Moreover, not even the requirements of Dixon are not met by the adopted regulation. The regulation provides for nothing more than an informal conference before the client's caseworker or other responsible county official. pixon requires "something more than an administrative interview with an administrative authority of the college." [At p. 158.] 35 POINT FIVE A PRELIMINARY INJUNCTION IS REQUIRED TO PROTECT THE CLASS OF OAS RECIPIENTS WHICH PLAINTIFF REPRESENTS FROM IRREPARABLE INJURY. A. Preliminary Relief Sought. Plaintiffs seek at the time of trial a preliminary injunction ordering defendants, their successors in office, agents and employees: (i) to cease immediately from terminating, with holding, suspending or revoking any OAS recipient's grant prior to the granting of adequate and reasonable notice and the opportunity for a hearing which satisfies the standards of due process of law and the Social Secur ity Act; (ii) to notify all recently terminated OAS reci pients (other than those terminated by reason of death) that if they believe that their OAS was wrongfully ter minated that they may request a due process hearing and that pending the hearing and decision that their OAS will be restored; and (iii) to immediately resume OAS payments to all terminated OAS recipients who have requested a fair hearing to challenge the termination of their grants and who are now awaiting final determination of their claims. B* The Prerequisites For Bringing a Class Action Have Been Met. : As stated by Judge Zirpoli in his memorandum opinion 36 in the instant case dated December 20, 1967: "The prayer for declaratory injunctive relief raises common questions of law for each member of the class; namely, whether a termination of benefits without a prior hearing denies a recipient his rights under the United States Constitution- All members of the class are gov erned by the same California procedure and statutes. "The court concludes that the prerequisites of Fed. R. Civ. P. 23(a) are satisfied. Similarly, the requirement of Fed. R. Civ. P. 23(b) is satisfied." [At p. 5.] Judge Zirpoli also found that the named plaintiff, Mae Wheeler, was an adequate representative of the class of OAS recipients and ". . . that the rights of all members of the class will be protected without the intervention." [At p. 6.] Plaintiffs' claims properly form the basis of a class action under Rule 23(b)(2) in that the defendants have acted or refuse to act on grounds generally applicable to the class. The Advisory Committee Note states that Subdivision (b)(2) applies when: " . . . Action or inaction is directed to a class within the meaning of this subdivision even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class. Illustra tive are various actions in the civil rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration." [Citations omitted.] The class herein consists of OAS recipients in California. Defendants do not contest plaintiffs' assertion that all OAS recipients are similarly affected by the statutes and regulations challenged herein. [PTO, pp. 6, 8.] The latest available statistics indicate that during the year ending June 1967, there were on the average 285,174 recipi ents of OAS cash grants monthly. 37 C. Preliminary relief should be granted in the instant case. Plaintiffs' action raises serious issues of consti tutional law and there is a substantial possibility that plain tiffs will prevail upon the merits of this action. Indeed, defendants have already conceded the validity of one of plain tiffs' principal contentions. Plaintiffs bring this action not only to vindicate their own private rights but in the public interest as well. First, the constant and vigilant application of federal con stitutional and statutory standards to state legislation is £er JL® a matter of the greatest public concern. Second, the well-being of those of our citizens who are most helpless is of substantial public interest. Courts have been more liberal in granting preliminary relief when the public interest is involved: "Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved." Stone, C.J., in Yakus v. United States, 321 U.S. 414, 441 (1944). The decision to grant a preliminary injunction is based upon a balancing of many factors: " . . . the relative importance of the rights asserted and the acts sought to be enjoined, the irreparable nature of the injury allegedly flowing from denial of preliminary relief, the probability of the ultimate success or failure of the suit, the balancing of damage and convenience gen erally. . . . " Perry v. Perry, 190 F.2d 601, 602 (D.C. Cir. 1951). 38 iQie stronger the plaintiff's showing of a likeli hood of ultimately prevailing on the merits, the less of a showing need he make on the "balancing of the equities." Perry v. Perry, supra. In Henry v. Greenville Airport Comm'n, 284 F.2d 631, 633 (4th Cir. 1960), the court stated: "The District Court has no discretion to deny relief by prelimin ary injunction to a person who clearly establishes by undis puted evidence that he is being denied a constitutional right." See also Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 569 (D. D.C. 1952), aff1d (on other grounds) 343 U.S. 579 (1952). 1. Terminated recipients awaiting a fair hearing decision. There is no question that the constitutional rights OAS recipients who are now awaiting fair hearing decisions have been violated. These OAS recipients did not receive any hearing before termination. Defendants have conceded that termination of an OAS recipient's aid without a prior hearing violates due process. The immediate reinstatement of all those OAS recipients who are presently awaiting state fair hearing or hearings decisions is required. This relief is capable of practical and expedious enforcement and control. The names and addresses of such individuals are presently within the control of the Chief Referee of the State Department of Social Welfare. [Deposition of Frank Vasquez at page 64.] 39 2. Recently terminated recipients. Plaintiffs request that all recipients terminated since the entry of the temporary restraining order in this case who have not requested fair hearings be notified immedi ately that if they believe termination to be illegal or erroneous they may apply for a fair hearing to contest their termination and that their aid will be reinstated pending a fair hearing decision. The names and addresses of such indi viduals are in the possession of each county welfare depart ment. See, e.g., Deposition of Mary Jane Rand, pages 42-43. If a hearing were then requested by a terminated recipient, the State Department of Social Welfare, to whom such a request would be sent, could direct the appropriate county to restore the recipient to aid pending the fair hearing decision. 3. Future terminations. Plaintiffs request a preliminary injunction to pre vent future terminations under the challenged statutes and regulations. in terms of interim relief plaintiffs suggest that the statutes be enjoined to the extent that before ter mination, recipients be given ten days notice of their right to request a fair hearing and if such a hearing is requested, then aid should continue, pending the fair hearing decision. Such a procedure has recently been proposed for adoption by the Mississippi Department of Public Welfare._ (Memorandum to Mississippi County Welfare Departments, supra.) Plaintiffs have shown irreparable injury to have 40 been caused to the named plaintiff Mae Wheeler and Mrs. Wheeler has been found to be an adequate representative ofthe class. The Advisory Committee comments to Civil Practice Rule 23(b)(2) indicates that action is directed to the class within the mean ing of the subdivision "even if it has taken effect or is threat ened only as to one or a few members of the class provided it is based on grounds which have general application to the class." This interpretation has been applied on behalf of classes com posed of welfare recipients by a number of federal courts in cases involving the public assistance durational residency requirements. A three-judge federal court in Wisconsin, after irreparable injury was shown only with respect to the named plaintiff, granted a class temporary restraining order pro hibiting the application of Wisconsin's one-year residency requirement in categorical public assistance programs. Ramos v. Health and Social Services Board (Civil Action No. 67-C-329, E.D. Wise., November 7, 1967). The court stated (Judges Fair- child, Gordon and Reynolds): "This Court requires further time for consideration of the application for preliminary injunction. Plaintiff Loretta Ramos has no source of income and no financial resources available to her, and she is unable to sustain herself and her children. She faces eviction for nonpay ment of rent. There will be irreparable damage to her and to her children if defendants continue to deny her assist ance without determining her eligibility on other grounds. These facts appear in an affidavit on file and have not been refuted. There has been no claim that plaintiff is, in fact, ineligible for any other reason. The number of applicants denied for lack of one year's residence is sufficient that there are undoubtedly others in danger of irreparable injury if no restraining order is issued." [Emphasis supplied.] 41 Two weeks later a preliminary injunction was granted by the Ramos court on behalf of the class even though the court noted that the order would require "disbursing public funds in such interim with little possibility of recovery in the event the state ultimately wins." Ramos v. Health & Social Services Board of State of Wis., 276 F. Supp. 474 (E.D. Wis. 1967). Similar relief for the class of potential public assistance recipients has been granted in Johnson v. Robinson, ____ F. Supp. ____ (Civil Action No. 67-C-1883, N.D. 111., December 29, 1967) and Mantell v. Dandridge, ____ F. Supp. ____ (Civil Action No. 18792, D.Md., December 4, 1967). The analogy of these cases to the instant one is clear. in each, a substantial constitutional question had been raised. In each, preliminary relief was granted to the class on the basis of a showing of irreparable injury to the one individual or a small number of individuals. There was no need for the plaintiffs in those cases to demonstrate wide spread irreparable injury; it being assumed that since the actions of the welfare department apply equally to all recipi ents and since such action resulted in actual irreparable injury to named individuals who represented the class, a proper case for preliminary relief had been made. Furthermore, the relief was granted in the face of the fact that the interim order would require the state to dispurse funds without chance of recovery. Finally, the court should be aware that plaintiffs 42 attempted to ascertain the names of recently terminated OAS recipients and/or terminated recipients who are awaiting fair hearing decisions. Plaintiffs were frustrated in this attempt, both at the state and county level, by the refusal of defend ants 1 counsel to make available such information in their possession on the grounds of confidentiality. Since no facts are at issue, the preliminary injunc tion should properly be granted at the time of trial on the basis of the papers and evidence before the court. The con tinued infringement of plaintiffs' constitutional rights should be immediately enjoined to prevent further injury. Conclusion For the reasons set forth above, the plaintiffs respectfully request that the relief requested be granted, together with such other and further relief as the court deems just and proper under the circumstances. Dated: March 15, 1968. Respectfully submitted, '1 Peter E„ Sitkin APPENDIX 6000 Part IV______________________ Eligibility, Assistance, and Services ~36o o-6999" .. Fair Hearings 7/9/5$ Handbook of Public Assistance Administration 6000. Fair Hearings 6l00. Provisions of the Act Sections 2(a)(k), to2(a)(k), 1002(a) (1*), 1402(a)(4), and l602(a)(k) read as follows: "A State plan . . . must . . . provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for (aid or assistance under the plan) is denied or is not acted upon with reasonable promptness Section 406(b)(2) authorizes Federal participation in protective payments "but only with respect to a State whose State plan approved under section iK>2 includes provision for . . . "(F) opportunity for a fair hearing before the State agency on the determination (of need for protective payment) for any individual with respect to whom it Is made 6200. Requirements for State Plans A State plan under titles I, IV, X, XIV, and XVI must provide: 1. For specific designation of responsibility within the agency for conduct of hearings, 2. For rendering decisions that are binding on the State and local agency, and 3 . For establishing hearing procedures to assure that: a. Every claimant may demand and obtain a hearing before the State agency in relation to any agency action or failure to act on his claim with reasonable promptness as defined in the State plan. (See IV-A-2331, item 1, and IV-2232, items 2 and 3.) b. Every claimant is informed in writing at the time of ap plication and at the time of any agency action affecting his claim, of his right to a fair hearing and of the method by which he may obtain a hearing. H.T. No. 56 o200-p.2 Part iv_________ _____________ Eligibility, Assistance, and Services 6006-6999 Fair‘Hearings____________ 7/9/65 Handbook of Public Assistance Administration 6200. Requirements for State Plans (Continued) 4c. Such hearing procedures will be issued by the State, clearly stated and properly publicized, for the guidance of all concerned. d. The hearing will be conducted by an impartial official (or officials) of the State agency. e. The hearing will be conducted at a time, date, and place convenient to the claimant, and the claimant will be given, in writing, adequate preliminary notice, information about the hearing procedure necessary for his effective preparation for the hearing, information that he has the right to be represented by legal counsel of his own selec tion, and, if the State plan provides for fees to legal counsel who represents the claimant in connection with the hearing, information concerning the payment of such fees. f. Prompt, definitive, and final administrative action will be taken on every request for a hearing, including a time limit between the request for a fair hearing and the rendering of the decision. g. The claimant has the opportunity (l) to examine all docu ments and records used at the hearing; (2) at his option, to present his case himself or with the aid of others, including counsel; (3) to bring witnesses; (U) to estab lish all pertinent facts and circumstances; (5) to advance any arguments without undue interference; and (6) to question or refute any testimony or evidence. h. The verbatim transcript of testimony and exhibits, or an official report containing the substance of what tran spired at the hearing, together with all papers and requests filed in the proceedinĝ and the hearing officer's or panel's recommendation, constitute the exclusive record for decision and are available to the claimant at any reasonable time. H.T. No. 56 6200-p.3 Part IV____________________________ Eligibility, Assistance, and Services 6000-6999 Fair Hearings 7/9/65 Handbook of Public Assistance Administration 6200. Requirements for State Plans (Continued) i. A prompt, definitive, and final written administrative decision will be rendered in the name of the State agency. The claimant shall be notified promptly in writing, of the decision and, to the extent available to him, of his right to judicial review. (For specific application, of requirement relating to protective payments in AFDO, see IV-5235*3> item 8 .) 6300. Interpretation of Requirements 6310. Purpose The primary purpose of the fair hearing provision, in each of the public assistance titles, is to provide an opportunity for any dissatisfied applicant for or recipient of public assistance, to assert his claim and to secure, in an administrative proceeding, equity of treatment in relation to the State's assistance laws and standards. To carry out this purpose requires that the State establish policies and procedures to assure that the hearing is in fact available to every claimant. 6320. Authority for Decision (See IV-6200, items 1 and 2) The purpose of the requirement of specific designation of a decision making authority is to assure that requests for a hearing will receive prompt and official consideration. The designated decision making authority may he the highest executive officer of the State agency, a panel of agency officials or a hearing officer appointed for that purpose, who has not taken part in the action under consideration. (See IV-6333*) 'Shis authority is responsible for rendering a final definitive administrative decision, which is binding on the State agency and local agencies, on all issues that have been made the subject of a hearing. 6330. Hearing Procedures (See IV-6200, Item 3) The procedures which follow, governing the conduct of the hearing process, are designed to assure the right of every claimant to demand and obtain a hearing on any action, or failure to ant with reasonable promptness, on his claim for assistance. H.T. Jfcv 56 6331 Pfirt IV 6000-6999 . ........... Eligibility, Assistance,____________ Fair Hearings______________ Ihandbook of Public Assistance Admin1strati a 4 and Services 6331. Right to a Hearing (See IV-6200, item 3a) The claimant's freedom to request a hearing, whenever he believes that proper consideration has not been given to all the circum- stnaces surrounding his claim, is a fundamental right and is not to lx; limited or interfered with in any way. It is essential that the claimant be given a reasonable period in which to appeal an agency action. A request for a hearing is defined as any clear expression (oral or written, by letter or on special forms) by the claimant (or person acting for him, such as his legal repre sentative, relative or friend) to the effect that he wants an opportunity to present his case to a higher authority. Agency action or failure to act, which gives rise to a right to a hearing, includes: agency decisions regarding eligibility for assistance, whether on initial determination or subsequent determination; agency decisions regarding amount of assistance (including a change in payments), whether money payments or vendor payments; agency decisions relating to the manner or form of payment, (e.g., a decision to make a restricted payment, or a protective payment, even though made in accordance with State policy, and even though no Federal financial participation is claimed) and conditions of payment, including work requirements; denial of opportunity to make application or reapplication for assistance; undue delay in reaching a decision on eligibility or in making a payment; refusal to consider a request for or undue delay in making an adjustment in payment; and suspension or discontinuance of assis tance in whole or in part. The claimant may question the agency's interpretation of the law, and the reasonableness and equitable- ness of the policies promulgated under the law, if he is aggrieved by their application to his situation. Effective complaint and adjustment procedures, by means of which corrective action may be easily requested and readily obtained without need for hearing, are important. The local office may amend or reverse its decision at any time, but after a hearing has been requested, local adjustment procedures cannot be allowed to Interfere in any way with the hearing process. * Only the claimant can withdraw his request for a hearing. In such case, a written withdrawal will be obtained and a report of the circumstances leading to it will be made to the State agency by the local agency or person receiving the withdrawal. H.T. No. 56 6331-P.2 Handbook of Public Assistance Administration Part IV oOdO-6999 Pair HearingsEligibility, Assistance, and Services T S M . 6331- Right to a Hearing (Continued) Since under the Federal act and the State plan, every aggrieved claimant is entitled to the opportunity for a hearing, the agency may not deny or dismiss a request for a hearing except where it has been abandoned by the claimant. A request for a hearing may be considered abandoned if neither the claimant nor his represent ative appears at the- time and place agreed upon for the hearing, and if, within a reasonable time after the mailing of an inquiry as to whether he wishes any further action taken on his request for a hearing, no reply is received by either the local or State agency. 6332. Informing the Applicant or Recipient of His Right to a Hearing(See IV-6200, item 3b) --------- Obviously, applicants and recipients can make use of their right to a hearing only if they are informed of its availability and the methods by which it may be obtained. The requirement for written notification may be met by including the informtion on the application form and other notification forms routinely used by the agency which go to applicants and recipients. The agency may also include an explanation of the right to a hearing in simple, non-legal terms in explanatory pamphlets, which are distributed by the agency. An oral explanation of the policy on hearings, at intake and at the time of a change in eligibility or amount of the payment, will assist the individual in understanding his rights to a hearing and of the way in which he can make vise of it. 6333. Publication of Hearing Procedures (See IV-6200, item 3c) The hearing procedures will be issued in the form of rules or regulations or in some other form in which they will be publicized for the guidance of all concerned. Using the form of rules or regulations would emphasize the importance of the procedures. It would contribute to the fairness of the'hearing procedure, and emphasize that there is "due process" in program administration affecting the "right" to public assistance. II.T. No. 56 oS Sil Part IV______________________Eligibility, Assistance, and Services (jOOO-69S‘9 Fair Hearings _____ 7/9/6$ Handbook of Assistance Administration 633U. Impartial Hearing Officer (See IV-6200, item 3d) While the decision making authority is responsible for rendering a final decision on the subject at issue, responsibility for the conduct of the hearings my be delegated to a hearing official, panel or other responsible agency officials. Impartial official means that the hearing officer has not been involved in any way with the action in question. Any person who has advised or given consultation on the question at issue is disqualified as the hear ing officer on that case. For example, a field supervisor who has advised the local agency in the handling of the case would be disqualified. 6335. Notice to the Claimant (See rv-6200, item 3e) It is essentia], tliat the claimant be given preliminary Witten confirmation of the date, time, and place the hearing is to be held, which includes an explanation of the hearing process and of the procedures to be followed at the hearing, so that he will have suf ficient time and a clear understanding of what he needs to do to prepare for an effective presentation of his case and to secure witnesses or legal counsel, if he desires. This would include information about the fair hearing as an informal administrative procedure, in which a dissatisfied claimant for assistance or his representative may present his grievance with the help of witnesses to show why action or inaction in his case should be corrected by the State agency. It would also Include information about payment of the costs of legal counsel to represent him in connection with the hearing, if the plan provides for the payment of such costs. It is essential that the convenience of the claimant be considered in setting the date, time, and place for the hearing. A mutually convenient time and place may be determined through an interview with the claimant, either in the office or at his home. The agency has not discharged its responsibility for granting an opportunity for a hearing, unless It has /taken all steps necessary to enable a claimant who requested a hearing either to attend the hearing in person or to be represented by a p>erson of his own choosing. If the hearing is to be held at a considerable distance from the locality of the claimant's residence, it may be necessary to provide for the transportation of the claimant and his witnesses to the place of the hearing. H.T. No. 56 * 6336 Handboo!: of Public Assistance Administration Part IVi >000 _____Eligibility, Fair Hearings____ .Assistance, and Services 1 M H *;>3j6. irompt Action (See IV-6200, item 3f) The requirement for prompt, definitive, and final administrative action means that all requests for a hearing are to receive immediate attention and be carried through all the steps necessary to completion. A definitive over-all time limit for the period Detween the date of the request for the hearing and the date of execution of the decision shall be established by the State agency. This will serve as one of the safeguards of prompt, administrative action on every request for a hearing. Detailed controls for individual steps in the hearing process, such as: time limits for accepting, forwarding, and aclnowledging a request for a hearing; notice to the claimant; and date of the hearing will facilitate proper administration of the hearing process. The requirement of "definitive and final administrative action" is not met if the State agency dismisses such requests for any reason other than withdrawal or abandonment of the request by the claimant. 6337. Claimant Participation in the Hearing (See IV-6200, item 3g) The basic concept of the fair hearing is that the person seek ing a hearing has the opportunity to examine all evidence used, by the agency, in making a decision on his claim. Therefore, non record or confidential information which the claimant does not have an opportunity to hear or see may not be made a part of the hearing record or used in making a decision on the case. For example, where the agency action at issue is based on medical information, such information would need to be available at the hearing. He or his representative may examine material that will be introduced os evidence prior to the hearing, as well as daring the hearing itself. If any additional material is to be made a part of the hearing record, this too will be made available to the claimant. * The claimant's right to a hearing includes the privilege of presenting his case in any way he desires . Some 'fill wish to tell their story in their own way, some will desire to have a relative or friend present the evidence for them, and still-others will H.T. No. 56 6339-P .2o Handbook of Public Assistance Administration Part IV &XX)-b999 Eligibility, Assistance, and ServicesFair Hearings 179755 6339* Decision arid Notification (Continued) consideration is not a substitute for "definitive and final administrative action." The State agency is responsible for assuring that the decision is carried out. Various methods, such as a report by the local unit to the State agency of action taken to carry out the hearing decision or follow up by State office staff may be used. The claimant shall be notified in writing of the decision and of the reasons that formed the basis of the decision. The claimant shall be advised that he may examine the hearing record (if he wishes), and that it may be made available to him in the local office, where a copy of the hearing record will be on file. The requirement that the claimant be notified of any rights he may have to judicial review'- is made with the recognition that public assistance applicants and recipients frequently do not know of their legal rights . In some States, the right of judicial review may be prescribed by statute specifically authorizing review of the agency decision on the basis of the record of administrative proceedings. In other States, even in the absence of statutory provisions, a claimant may be able to invoke the remedy of judicial review on a showing that the agency action was "unreasonable, arbitrary, or capricious. The content of the notice would depend upon the kind of remedy available in the State. (For specific application to (l) Protec tive Payments in AFDC, see IV-5235.26, and (2) Unemployment of a Parent in AFDC, see lV-3h2*+.2-p .3 . ) 6*100- Federal Financial Participation Federal financial participation is available in: 1. Payments made to carry out hearing decisions, or to carry out a decision to take corrective action after a request for a hearing but prior to the hearing itself, as current pay ments for all or any part of the period beginning two months prior to the month in which the request for a hearing was made, provided the amounts paid are shown to have been Improperly withheld or denied in such months by administrative action. H.T. No, 56