Wheeler v. Montgomery Brief for Appellees

    In the Supreme Court of the 
United States

October T erm, 1969

No. 14

Mae W heeler, et al.,
Appellants,

vs.
John M ontgomery, Director of the State 

D epartmi:nt of Sccial W elfare, and 
Ronald B orn, Gen >ral Manager of the/ 
San F ra ncisco Ch y and County De­
partment of Sociaj S ervices,

Appellees.

On A p p ea l  from the Unil States District  C iu r t  
for the Northern D: trict of Ca l iforn ia

Brief for \ppellees

OUESTION ’RESENTED

Whether recipients of pul ic assistance grants are af­
forded minimum due process of law in the withholding of 
a warrant under circumstanens and procedures which may 
he stated as follov s :

(1) "Where the recipient receives notice immediately 
upon an initial decision be ini made of ineligibility and in 
no event less than three mail delivery days before the 
usual date of the \ arrant.



2
(2) Where the notice or notification specifies and con­

tains the following elements:
(a) The county’s propo 'd action,
(b) the grounds therefor,
(c) information needec or action required of the 

recipient to determine eli ibility,
(d) that the recipient with legal counsel or other 

person may meet with an agency n presentative at a 
specified time or during a specified time period of not 
exceeding three working days, the last day of which 
shall be at least one day prior to the usual delivery 
date of the warrant at wli eh time:

(e) the county’s eviden e will be ally disclosed,
(f) the recipient shall have the opportunity to pro­

duce the information or e planation referred to in (c) 
above and any other infoi mation he desires, and,

(g) the entire matter will be discussed for clarifica­
tion and, where possible, resolution.

(3) where the warrant may be withheld only when the 
county’s evidence is substantial in nature and reliable in 
source indicating probable ineligibility.

STATUTES AND REGULATIONS INVOLVED

’I’lie present < ase involves the constitutional, statutory 
and regulatory provisions set forth in the single appendix 
heretofore filed with this court under Rule 3(5 (hereinafter 
referred to as “A ” ).

The case also involves the Department of Health, Educa­
tion and Welfare (HEW) Handbook of Public Assistance 
Administration (hereinafter referred to as Federal Hand­
book) Part IV, sections 2300 (d), (e), (f). and (g) “ Criteria 
foi the Administration of the Plans” and section (1400 "In­
terpretation” which are set forth in Appendix I to the 
instant brief pages 1 through 5 (the Appendices infra will 
be referred to as “ App.” )



The present case also involves California Welfare md 
Institutions Code sections 12200-12202 set forth in Appen­
dix IT page 6, infra.

Also involved herein are the following: the California 
State Department of Social Welfare Public. Social Services 
Manual (hereinafter referred to as PSS) section 44-325 
“ Changes in Amount of Pa ment” : section 40-155 “ P in- 
ciples and Methods of Investigation” ; section 40-1S1 “ ( on- 
tinuing Activities and Tnvesi gation” ; section 48-001 “ C< un- 
ty Department Responsibili y for Case Records” ; sec ion 
48-013 “Inspection of Records by Applicant or Recipient” ; 
which are set forth in Appendix III infra, pp. 7-20.

Further to be considered is the California State Depart­
ment of Social Welfare Op< rations Manual section 22 109 
“ Request for Review and Fair Hearing: County Depart­
ment Responsibility” ; section 22-113 “ State Department of 
Social Welfare Responsibility” ; and recommended proce­
dures set forth in section 22-200 “ Client Complaints md 
Fair Hearings in Public Social Services” ; section 22 203 
“ Concepts and Considerations” ; section 22-203.4 “Wri ten 
Confirmation of County Welfare Department Action” ; ;ec- 
tion 22-205 “ Establishment of Complaints and Appeals 
Unit” which are set forth in Appendix III infra pp. 20- 0.

ST A" 1MENT
Appellant, Mrs. Wheeler, >s of August 30, 1907, recei md 

monthly Old Age Security lOAS) benefits in the ameunt 
of $113.95 and Social Securil y benefits of $14.00 per month. 
(A.50) On August 30, 1907. the San Francisco City and 
County Department of Sue il Services received informa­
tion that Mrs. Wheeler lm 1 received some $0,000.01 in 
insurance proceeds and otlie death benefits upon the d< ith 
of a son. (A.42) On the same day the county agency q es-

3



ti( icd Mrs. Wheeler by tele] one about this. She admitted 
rei living these funds, and in >rmed the county that during 
A| ril 11)67 she had transfer] 1 a Veterans Administration 
cli ck for $4,528.15 to her gra Ison, nephew of the deceased 
so in accordance with the equest of her deceased son 
(A.56)^ Although Mrs. Wh *]er during this five-month 
pe 'iod on several occasions had been in touch with her 
so ial worker, she did not r port receipt of any of these 
fu ids (as required by Cal We f & Inst Code § 12203) (A.42).

Che county withheld Mrs. Wheeler’s September 1, 1967 
w< ifare check pending com iletion of its investigation. 
( /  .56)1

)n November 7, 1967 the oi nty agency concluded that 
th transfer was made to avoid discontinuance of welfare 
benefits and determined tha Mrs. Wheeler’s action ren- 
de ed her ineligible for contii led benefits.2 (A. 42)

During the months of Sep ■mber and October and until 
ab mt November 10, 1967, M s. Wheeler lived on her “ al­
lowable reserve” and Social Security payments (A. 17).3 
T) e “allowable reserve” for OAS may not exceed $1200.00 
ca h.4

Ybout November 25, 1967 she received an emergency food 
or ler from the county for $15.60, presumably as a result of 
having notified the county that her reserve funds were 
ex lausted. (A. 18) With no cash assets she was considered

1. PSS 44-325.423 effective April 1, 1908 prohibits such pre­
cipitous county suspension.

•. Cal. Wei. & Inst. Code § 1:4)50(e).
'!. The allegation that for nearly three months appellant sub- 

sis'ed solely on her $44.60 monthly Social Security check does not 
conform to the facts (A.B. 6).

1. Cal. W elf. & Inst. Code § 11154.



eligible for County General Assistance as of Decemb< r 1, 
19G7 in the sum of $53.90 (A. 57)5 6

Appellant’s request for a fair hearing was filed No 'em­
ber 21, 19(57 (A. 41).° The hearing was originally sched­
uled for December 15, 19(57. Tt was postponed at Mrs. 
Wheeler's request and came on for hearing on December 
22, 1967. (A. 39-40). The referee’s decision was ad( pted 
by the Director of the State Department of Social Wo fare 
on January 12, 1968 (A. 57). The decision ordering Mrs. 
Wheeler restored to OAS effective September 1, 1965 (A. 
57) was rendered within 52 days of her request foi the 
hearing. The HEW regulation (Hand Book of F iblic 
Assistance Administration section 6200( j )) not eff< dive 
until July 1, 1968, requires the hearing and decisi- n to 
be made within 60 days of the request for a hearing (A 65).

Old Age Security payments were restored by a rtue 
of a temporary restraining order issued by the court 1 elow 
on December 1967. The district court judge entered a class 
action order concluding that the prerequisites of Fe deral 
Rules of Civil Procedure 23(b) (2) were met. The court, 
finding that the provision; of 42 USC section 2281 were 
satisfied, ordered the convening of a three judge c mrt. 
Appellee John Montgomery, Director of the California

5. The Sun Francisco General Assistance program, financed 
solely by the county, not only includes the cost of living ex enses 
in accordance with the gene ml assistance standards hut in dudes 
as well such special needs as ■ pecial diet allowances and nee ssary 
medical care. (Declaration of Ronald H. Born, December 1 1967 
Docket Entries 7-8 A. 1) Mrs. Wheeler was receiving n 'dical 
care at Hahnemann Hospital in late November 1967 when si > exe­
cuted her Affidavit in Supper of Motion for Temporary Re train­
ing Order (A . 18).

6. Mrs. Wheeler could luu e requested a fair hearing ii medi­
ately upon being notified that her welfare check' was being wi lheld. 
Cal.' W elf. & Inst. Code § 1 ()!)• (). Operations Manual Section 12.021 
requires “ Written Notice of the right to a fair hearing si ill be 
included in every Notification . . of the . . . suspension of aiu . . .

5



G

1 tate Department ol Soci; Welfare tin n promulgated 
R egulation PSS 44-325.43. rJ lie court below found that the 
i ‘gulation comports with C e due process clause of the 
1 ourteenth Amendment to 1 ie United States Constitution 
a* d dismissed the action. (A. 45).

e

SU M M ARY C  ARGUMENT

The essence of Appellant attack upon the decision of 
t e court below is contains in Appellants Jurisdictional 
f atemont, page 16, heading ! :

 ̂ F. I he informal c< • iference prior to termination 
and the I1EW lair hearing after termination 
do not combine to meet due process of law.

“ The lower court opinion was based upon a feeling 
that a combination ol the informal c( nference prior 
to termination and the fair hearing after termination 
would jointly create due process of law.”

However, Appellants are unable to cite authority directly 
in point with their above c utention but rather rely on 
ca-;es which state broad cons tutional principles.

Conversely, the correctness of the decision of the court 
be oav and the constitutional ■ p\ ol the notiee and hearing 
provisions herein involved must be measured in light of 
tli fact that: (1) determinations as to continued eligibility 
must be made promptly and no less often than once a 
111 "ntli with respect to over one and one-quarter million 
pi blic assistance recipients, a id (2) the State of California 
provides recipients with the fair hearing process called 
for and required by both the Social Security Act and the 
provisions of state law (Welfare & Institutions Code 
§§ 10950-10905); the latter providing for judicial review.

With approximately 1,276,000 recipients of the various 
categorical aid programs in California, County welfare



departments must make an (mormons number of decisions 
daily respecting continued eligibility—and thus must de­
velop a rapid method of fairly determining whether to sus­
pend, terminate or withdraw public assistance grants for 
all recipients. The number of determinations required and 
the need for an expeditious and fair review of these le- 
terminations are essential factors in assessing the con: ti- 
tutional adequacy of the regulation and procedures uph hi 
by the court below.

ARGUMENT

I. The California Suspension and Termination of Aid Procedt res 
Fully Comport with Due Process Requirements 

IN T R O D U C T IO N

The State of California does not dispute the right of 
welfare recipients to some bearing prior to suspension or 
termination of aid. This is precisely the claim originally 
pressed by appellants (A. 13). After this action was in­
stituted and the temporar; restraining order issued, ap­
pellee John Montgomery, D rector of the California State 
Department of Social Wei are, adopted new regulations 
to implement existing proe lures to assure that prc-wi h- 
holding of aid procedures v add meet due process require­
ments. At no time howev< , has appellee conceded that 
there is a constitutional < titlement to welfare benefits 
with the concomitant entitle: tent to the protections required 
for First Amendment right.

Due process is a flexible oncept dependent on the ] ar­
ticular circumstances.

“The very nature of < ue process negates any concept 
of inflexible procedures iniversally applicable to ev my 
imaginable situation.’ ' -afeteria £  Restaurant Work­
ers Union etc. v. McK, oy, 3(17 IT.S. 886, 895 (1961) 
“ [D]ue process,” unli 1 some legal rules, is not a 
technical conception wiili a fixed content unrelated to 
time, place and circumstances. . . Joint Anti-Fascist 
Comm. v. McGrath, 341 U.S. 123, 162-163 (1951) (con­
curring opinion).”

7



' 'lie pre-withholding invest gation and post conference 
procedures discussed below, ; well as the pre-witliholding 
coi ference, demonstrate tha these combined procedures 
act ord aid recipients all of he due process that is con­
stitutionally required.

A. A N  fo vE S T IG A T IO N  CONDUCTEC  W ITH  THE C O N SE N T  O F THE RE­
C IP IEN T  PRECED ES N O T IC E  O F  i ilT IA L  D E C IS IO N  TO W IT H H O L D  A  
W A R R A N T

lie notice given a recipien , pursuant to PSS 44-325.43, 
ol the county’s initial decision to withhold a warrant, does 
no come as a bolt from the b ie. Eligibility is reconsidered 
an ‘ redetermined periodicall and whenever the situation 
requires it. (Federal Handbook Part IV, 2300(d) App. 1 
p. .) Roinvestigation entails a personal interview with the 
rec pient.7 (PSS 40-181.3.)

EW has made explicit tha “ in the process of determin­
ing initial and continuing eligibility: . . .

(2) i’he agency takes no steps in the exploration of 
eligibility to which the applicant or recipient does not 
agree; it obtains specific consent for outside contact 
(whether with social agencies, doctors, hospitals, and 
similar resources, or with relatives or other indi­
viduals); the consent covers the purpose of the con­
tact as well as the individual or agency to be consulted; 
and where collateral sources are contacted, a clear 
interpretation is furnished of w hat information is de­
sired, why it is needed, and how it will be used. Tf 
other procedures are followed in an exceptional situa­
tion, they are consistent with lV-2200(a) and TV- 
2300 (a), and the case record specifies the reasons why

7 In McCullough v. Tcrzian, now pending in the Court of A p ­
peal State of California, First Appellate District, 1 Civil No. 
25830 and dealing with this same issue, Mrs. McCullough, prior 
to being interviewed by a county investigator, was advised that 
she had a right to have counsel present at the interview. At the 
interview the evidence regarding ineligibility was discussed with 
her. (CT (14-71)



they were needed and the specific procedures fol­
lowed.” (Federal Hand Book Part TY 2300(e)(2).)

State regulations are to the same effect, (PSS 40-155.24, 
App. TIT, p. 12; PSS 40-181.31, p. 14). Information secured 
shall he evaluated qualitatively rather than quant itively and 
in light of its internal consistency (PSS 40-155.1, App. IT, 
p. 10). Only when the evidence “ is both substantial in 
nature and reliable in source” indicating probable ineli ;i- 
hUity of recipient is the not ce given under PSS 44-325 13 
(PSS 44-325.421 App. 1 IT. p. 7).

The initial decision regarding probable inelligibilitv must 
he based on adequately substantiated facts, not rumor, 
gossip or surmise.

9

B. THE REG U LAT IO N  PRO V ID ES FOP A D EQ U A T E  A N D  Y IM ELY  N O T IC E

PSS 44-325.43 provides that the recipient shall be no!i- 
fied of the county’s initial decision to withhold welfa 'e 
benefits and the grounds therefor at least “ three (3) m; il 
delivery days prior to the usual delivery date of the wa - 
rant.” The notice must stab in addition to the grounc 5 
lor the proposed action “what information, if any, is neede I 
or action is required to re-establish eligibility or to dote - 
mine a correct grant.” Also, the regulation requires a. hon e 
call by appropriate personnel if the county has reason to 
believe that the notice may not be delivered or the recipient 
will not understand it. This < learlv meets the duo process 
requirement that there be . . notice reasonably ca7 
ciliated, undei all the circum ances, to apprise interest! 
parties of the pendency of (1 > action and afford them a 
opportunity to present their o! jections.”  Mullane v. Centro 
Hanover Tr. Co., 359 U.S. 3Cb, 314; Schrocder v. City , 
New York, 371 U.S. 208, 211.

These regulations require a recipient to he more fulh 
informed of the grounds for the county’s proposed actioi



than the California Administrative Proceduie Acts requires 
for the initiation of full scale a,judicatory proceedings 
against the holder of a business or professio lal license, e.g., 
(h ctor, pharmacist, barber, pest control operator, etc. 
Government Code section 11 503 provides in relevant part: 

r“A hearing to determine whether a right, authority, 
license or privilege sir uld lie revok >d, suspended, 
limited or conditioned s lall be initiated by tiling an 
accusation. The accusation s!iall be a written state­
ment of charges which s all set forth i i ordinary and 
concise language the act or omissions with which the 
respondent is charged, t< the end that the respondent 
will be able to prepare h s defense. It s iall specify the 
statutes and rules which the respondent is alleged to 
have violated, but shall not consist merely of charges 
phrased in the language < f such statutes and rules . .

California provides that tin welfare case record shall be 
open to inspection by the recipient and his authorized 
representatives at all times. PSS 48-013, App. Ill p. 20.) 
Eligibility investigation repc ts including “ the pertinent 
information obtained during the investigation, and, the 
sources from which relevant < ata was secured,” art1 part of 
the case record. (PSS 48-001.11, App. Ill pp. 17-18.) (See 
also Cal Welf & Inst Code § 10850.1)

This is not true for the In Ider of a business or profes­
sional license. Only after the accusation is filed does the 
licensee have limited right of discovery. (Calif. Gov. Code 
§ 11507.6.) Thus, there is no relevant comparison between 
a minimum of three mail deliv my days’ notice for a welfare 
recipient to answer and the twenty-five days for answer 
un ler the California Administrative Procedure Act. (Gov. 
Code §§ 11505(b) and 11509.9)

Notice of charges of student misconduct received two 
days before the disciplinary hearing, was held to lie ade-

f:. California Government Code §§ 11500-11528.
! .  Amicus curiae brief App. B, p. 13.

10



11
quate and timely by the court in .Tones v. State Board of 
Education of and for State of Tenn., 279 F.Supp. 190, 0)9 
(M.D.Tenn. 1968). The court in Jones pointed out thal in 
Due v. Flordia A.SM. University, 233 F.Supp. 396 (N.R.Fla. 
1963) “a letter was read to the students for the first time 
at the hearing against them. This was the only notice of lie 
charge that the plaintiffs were afforded, yet the court held 
the notice to be both adequate and timely.”

Appellants allege that the conference is not schedul ‘d 
for a particular time or with a particular person and t ic 
recipient is not advised of her right to appear. (Appellan s’ 
Brief p. 11.) Appellants disregard the specific requiremei ts 
of PSS 44-325.434 that the recipient be informed that !ie 
“ may have an opportunity to meet with his case worker, m 
eligibility worker, or another responsible person in t'ie 
county department, at a specified time or during a git en 
time period . . . at a place specifically designated. . . .” (E n- 
phasis added.)

The “ Notice of Action” ( Appellants’ Appendix V pp. 
21-22) is only one piece of the information required by 1he 
regulation. If the only information received by a recipient 
was the notice of action as alleged by appellants,10 11 there 
has been a clear violation if the regulation. The noti ;e 
form, if used, must be aecom >anied by a letter or otlierwi <Q 
include the information regarding:

(1) The right to, an 1 time and place for a c< i- 
ference;

(2) the grounds for t ie proposed action;
(3) what informatioi is needed from the recipie t;
(4) his right to be n iresented at the, conference. 1

10. Appellants’ Brief p. IS.
11. Operations Manual 22-2' 1.4 App. I l l , p. 22.



12
in addition, tlie recipient is advised that the evidence 

r yarding ineligibility will be fully discussed with him and 
h i representative. Further, this information is available at 
a v time by inspecting the case record.

Vompt resolution of questioned eligibility is clearly to 
tii recipient’s advantage. In California eligibility for an 
f VS grant is not dependent on indigency.12 If aid is re­
el' ired to be paid pending a fair hearing and the recipient 
i found ineligible the county may obtain restitution.13 This 
m v entail exhaustion of reserve lands, sale of home prop­
er v and other assets to the same extent as any other judg- 
n lit debtor.

A. quick and simple procedure is to the advantage of the 
e mty and state as well as the recipient in obviating the
I le consuming process of (the fair hearing. Moreover, 
“ ! rotection of the fisc” has not been rejected by the appel- 
ha s.14 The statement “ cost to the state has not been put in 
is; ue” was largely based on the incompleteness of the 
statistics on such costs stemming from the McCullough 
peremptory writ. The Calif >rnia. Court of Appeal com- 
m nted that the proferred “ e idence” did not purport to be 
a urate.

C THE P R E -W IT H H O L D IN G  O F A ID  C O N FER EN C E , D ES IG N ED  TO A FFO R D
REC IP IEN TS PRO M PT  R ESO LU T IO N  O F EL IG IB IL ITY  Q UEST ION S, M EETS
DUE P R O C E SS  R EQ U IREM EN TS

Che pre-withholding of aid conference conforms to
II IW ’s requirement for:

“ Effective complaint and adjustment procedures, 
whereby corrective action may be easily requested and 
readily taken without the need for a [fair] hearing,

12. See San Bernardino County v. Simmons, 4(> Cal. 2d 394, 400, 
2!)i» Pac. 2d 329, (1956).

13. Cal. W elf. & Inst. Code §§ 12203, 12205.
14. Appellants’ Br. pp. 16 n. 17, 17.



13
are necessary, when indicated. Advance opportunity 
afforded the recipient 1o respond to questions which 
could result in change of grant or termination is a 
significant part of such procedures. So is written, nd 
whenever practical, oral information of the reasons for 
change, denial, or termination. This is particularly 
important where the agency decision is based on judg­
mental factoi's or eligibility, requirements that entail 
evaluative decisions on the part of workers, as com­
pared to decisions based on non-debatable facts (su h 
as receipt of OASI. death, etc.). However, the State 
and local agency adjustment procedures cannot be 
allowed to interfere with the hearing process.”15 16

1. Confrontation and cross-examination are not essentia! to "due  process" at 
the time of and under the circumstances of these proceedings

Appellants assert that the regulation is constitutionally 
deficient in that it fails to afford the recipient the right * fo 
confront and cross exan ine” . This alleged defect is with* at 
merit. The court in Dixon v. Alabama State Board of 
Education, 294 F.2d, 150, 159 (5th Cir.) expressly rejected 
the right to cross-examine witnesses. Nor was such condi­
tion considered essential in Knight v. State Board of Educa­
tion, (M.D. Tenn.) 200 V. Supp. 174, 178 (1901). In Knight 
the court concluded that “ the rudiments of fair play a id 
the requirements of due process vested in the plaintiffs 
[suspended students] the right to be forewarned or. advis'd 
of the charges to lie made against them and to be afford d 
an opportunity to pres*' it their side of the case.”

Nonetheless the Dixon and Knight decisions are cited y 
Appellants as creating a due process requirement for a “ f 11 
trial-type hearing” for students at state schools.1®

15. Federal Handbook Part IV , 6400(a), Ap]>. I, p. 4. See also 
section 2300(d) (5 ), App. I, p. 1.

16. Comment, “ Withdrawal of Public W elfare: The Right t > a 
Prior Hearing,”  76 Vale L.J. 1234, 1239 (1967).



2. Due process does not require an impartial decision maker for an administra- 
tive proceeding such as this one

Kven in a full-scale trial type administrative proceeding 
tin combination of ajudicating function with prosecuting
01 investigating functions will not ordinarily constitute a 
d< nial of due process. Marcello v. Ronds, 349 U.S. 302, 311 
( 155); Federal Trade Comm’n. x. Cement Institute, 333 
V S. OSS, 700-703 (1948), Fair/bur, v. C. 1.5., 311 F.2d 349, 
370 (1st Cir. 1902); Holt v. Raleigh City Board of Educa­
tion, 205 F.2d 95, 98 (2d Cir. 1959) cert. den. 301 U.S. 818.
2 Davis, Administrative Law Treatise (1958) p. 175 et seep 

in California an administrative agency need not use the
th > services of an impartial hearing officer unless required 
h\ statute to do so. This is so even though the board makes 
the initial decision to terminate employment and conducted 
its own investigation. Griggs v. Board of Trustees, 01 Cal. 
2d 93, 97-98, 37 Cal. Rptr. 194, 389 P.2d 722, (1904).

However in the interest of reaching an immediate and 
equitable decision without the necessity of going to a fair 
hearing appellee Montgomery has recommended to the 
counties the establishment of a Complaints and Appeals 
Unit,17 Many counties have such a unit which is separate and 
apart from the “ line” , (i.e., case worker, supervisor,) in­
volved in the initial decision to withhold aul. Jn the small 
counties the unit, necessarily, might be composed solely of 
the director.
3 Appellants other due process attacks on the pre-withholding procedures are 

not supported by fact or law

Appellants make the unfounded contention that the reg­
ulations fail to require a decision based on the evidence at 
the hearing or that there even be a decision. The regulations 
require full disclosure of the county’s evidence and the 
recipient has access to the case records plus the opportunity

17. Operations Manual 22-205, App. H I, p. 24.

14



foi production of whatever information and evidence he 
desires to introduce. Tin' county’s decision to terminate aid 
or withhold aid for further investigation must lie based m 
evidence both substantial in nature and reliable in source 
indicating probable ineligibility. Tn Sniadacli v. Family
Finance Corporation, ...... TT.R......... , 37 U.S. Law We >k,
4520 (June 0, 1009) Mr. Justice Harlan concurring 
stated, “ I think that due process is afforded only by l ie 
kinds of “notice” and “hearing” which are aimed at estab­
lishing the validity, or a/ least the probable validity, of the 
underlying claim against the alleged debtor before he can 
be deprived o! Ins property [wages] or its unrestricted 
use.” (Emphasis added.) This is precisely what is requir >d 
by the regulation. Substantial evidence has been defined by 
this Court as relevant evidence that a reasonable m'nd 
might accept as adequate to support a conclusion, that is, 
whether a fair and reasonable mind would accept it as 
probative1 of the issue.18

Appellants decry the lack of a transcript or record of the 
proceedings. Tn Due v. Florida A and M University, 233 
E.Supp. (N.T). Florida) .">9(1, -103 (1903) the court held due 
process was satisfied in that:

“ There was notice to each of these plaintiffs, the 
charge was ni; de explicit, and each was afforded full- 
opportunity to lie heard, and, in fact, was heard to Hie 
point where each said he had nothing more to say.

“ A fair reading of the Dixon case shows that it is not 
necessary to due process requirements that a full scale 
judicial trial be conducted by a university disciplinary 
committee with qualified attorneys either present or 
formally waived as in a felonious charge under the 
criminal law. There need be no stenographic or me­
chanical recording of the proceedings.”

18. Consolidated Edison Co. v. National Labor Relations Board, 
305 U.S. 197, 229 (1938).

15



16
i the instant situation no useful purpose would be served 
y making such a record since it is clear that the designated 
ext administrative step is the ‘‘fair I aring” which is de 
ovo'and transcribed, thus 1 ‘ing available for court review 

; fter administrative remedies have been exhausted.
Appellants’ final attack on the regulatory procedure is 

1 mt the burden of proof is placed on the recipient to prove 
I a is entitled to public assistance; this apparently based on 
1 le “ initial ex parte decision to terminate aid.”10

The initial decisions of all administrative agencies 
a hether they be to terminate employme it, a driver’s license 
i r welfare benefits are ex parte decisions on the part of the 
; gency.19 20 The fact that tin1 county agency has made an 
initial but still tentative ex parte determination that aid 
i muld be withheld cannot be interpretc 1 as constituting an
< ffective shift in the formal and legal concept of burden of 
] roof.21

t A V A IL A B L E  POST C O N F E R E N C E  PR O C ED U R ES  A FFO RD  REC IP IEN TS A D ­
D IT IO N A L  DUE P R O C ESS

Tf the decision following the conference is not to the 
i ecipient’s liking he may request review by the county 
d ‘partment staff designated for that purpose.22 This is
< ' particular importance if the conference has been with 
the recipient’s social worker or direct supervisor. The reg­
ulation requires the review staff to promptly reassess the 
recipient’s situation and to take immediate action and effect

19. Appellants’ Brief p. 22.
20. Griggs v. Board of Trusters, 61 Cal. 2d 93, 97, 37 Cal. Rptr., 

194, 389 P.2d 722 (1964).
21. “ This phase of the plaintiffs’ argument resolves itself basi­

cally into an unfounded argument of semantics brought by the use 
of the word ‘ readmit’ by the F .A .C .”  Jones v. State Board of Edu­
cation, 279 F.Supp. 190, 202 (M .l). Tenn. 1968).

22. Operations Manual section 22-109. App. I l l  pp. 20-21.



any adjustment as may be appropriate. The recipient is 
again informed of his right to a fair hearing. Then if the 
recipient “has not achieved an understanding with the 
county” he may request review by the State Department of 
Social Welfare Complaints Staff who shall reassess and 
review the situation promptly. The State Staff shall request 
the county to promptly reassess the problem and may in­
form the county of the intent or meaning of applicable 
regulations. The •ecipient is again informed of his rights 
to a fair hearing.-3 None of these adjustment procedures, 
conferences, county and state review can be allowed to 
interfere with the fair hearing process.23 24

Tn Robertson v. Bowman, Civil Action No. 51364 (N.D. 
Cal. June 21, 1969) the Court order for a full hearing p lor 
to termination of county welfare, does not support appel­
lants’ contention that the procedures before this Court are 
inadequate.25 26 The- basis for the Court’s order in Bober son 
was that the county had no procedures at all prior to ac ual 
notice of termination with no provision for a fair healing 
following termination. General assistance in California is 
financed and administered solely by tbe county under ] ro- 
cedures and standards determined solely by each indivic ual 
county.

As of July 1, 1968, TIIOW has required that the heaiing 
and decision be made within 60 days from the request for 
the fair hearing.2'1

23. Operations Manual sections 22-113. App. ITT p. 21.
24. Federal Handbook Part IV section 6400(a). A}ip. I p. 4.
25. Appellants’ Grief p. 23.
26. Federal Ilam book Part IV, section 6200 ( j ). California lias 

not been able to achieve full compliance with the 60-day reqi de­
ment because of th greatly increased welfare caseload and the 
number of requests i >r fail hearing with no comparable increas in 
the number of hearing referees.

17



Thus there is provision for i “ trial” which is to be held 
and decided within a limited and defined time following 
wi hholding or termination of aid;27 precluding the defects 
ap »ellants attribute to the pre-withholding of aid pro­
cedures.

II. The Social Securify Act Does Not Require Continuation of 
Welfare Assistance Pending a Fair Hearing

'idle Social Security Act in plain and simple language 
requires a state plan to “ Provide for granting an opportu­
nity for a fair hearing before the State agency to any 
individual whose claim for assistance under the plan is 
d mied or is not acted upon with reasonable prompt- 
n ss. . . .”2S

There is nothing in the foregoing that hints, implies, or 
insinuates that the “ fair hearing” must be held before 
a sistance is suspended or denied. The Department of 
Health, Education and Welfare has not heretofore so in­
terpreted it. The HEW regulation requiring continuation 
of aid pending the fair hearing decisions was originally 
issued in proposed form on November 3d, 1968, to be etlec- 
tive July 1, 1969, (33 Fed. Reg. at 17853) as the result of 
a promise made by then Secretary Cohen to the Reverend 
Ralph Abernathy.29 There is no evidence that it was the 
result of intensive analysis and review (Appellants’ Brief 
p. 20). The regulation was finally issued over the vigorous 
pr (tests of all the States in Volume 31 Fed. Reg. No. 16, 
p. 1144, January 23, 1969 to be effective October 1, 1969.

>7. The Family Finance Corporation v. tfniadach, 37 Wis. 2d 
163, 154 Northwest 2d 259, 269 dissenting opinion.

28. Appellants’ Brief, App. 1.
29. Jurisdictional Statement p. 7.

18



19

The delay can he attributed only to these objections and not 
“ to allow those States where no such system existed to 
adapt to the new procedures.”30

Every State participates in one or more of the aid pro­
grams and every State is required by the Social Security 
Act to establish, and has established, a fair hearing pro­
cedure.

Heretofore and until October 1, 1969, (unless repealed or 
revised), the HEW regulations authorized termination, sus­
pension or withholding of aid prior to a fair hearing. For 
example Section (>000 (k) o! the Federal Handbook pro­
vides, “When the hearing decision is favorable to the claim­
ant, or when the agency decides in favor of the claimant 
prior to the hearing, the agency will make the correct d 
'payments retroactively to the date the incorrect action was 
taken.”  (Emphasis added.)

Section 6300(g) reads in part, “ Insofar as may be applic­
able, a decision in favor of the claimant applies retroactive­
ly to the date the incorrect action was taken, and also ap­
plies prospectively.” (Emphasis added.)

Section 6500 provides that Federal Financial Participa­
tion is available in : “ (a) Payments made to carry out hear­
ing decisions, or o take corrective action prior to the 
hearing, including corrected payments retroactively to the- 
date the incorrect administrat ive action was taken, (b) Pa \r- 
ments of assistance continued pending a hearing decision.”

We do not accepi the apparent contention that HEW has 
violated the Social Security Act in enacting the abo e 
referred to regulations. Tf Congress had thought so it woii 1 
have rectified IIEW’s “ erroneous” interpretation durin * 
the course of its massive revisions of the Social Security A( 
effective January ’2, 1967. (P.L. 90-248.)

30. Appellants’ Pi ief p. 26 n. 32.



20
Hi The Hearing Provided by the Regulation Meets the Hearing 

Requirements of the California Welfare c .id Institutions Code 
Authorizing the County to Cancel, Suspend or Revoke Aid 
"For Cause".

t is contended by amicus curiae Legal Aid Society of 
Alameda County that certain sections of the Welfare and 
In -litutions Code require a hea ing prior !o the suspension 
of aid inasmuch as said section authorizes the county to 
suspend aid only “ for cause.” The sections referred to are 
Welfare and Institutions Code sections- 12'JOO (O.A.S.); 
12700 (Blind); 11458 (A FD C ); 10750 (Disabled). (Welf. 
& Inst. Code §§ 12200-12202, App. IT, ] . 5.) We have no 
quarrel with this contention with one exception; California 
Welfare and Institutions Code section 12202 provides: “ If 
at any time the [county] department has reason to believe 
that aid lias been obtained improperly it shall cause an in­
quiry to be made and may sus}>end payment of any install­
ment pending the inquiry. . . .” (App. IT, p. G) (Emphasis 
ad led.)

But more to the point herein, appellants’ right to an in- 
foi mat hearing or conference with the county agency under 
the regulation prior to suspension of aid and the right to 
a formal hearing before the appellee-director of the State 
D( partment of Social Welfare after suspension is precisely 
the procedure the California Supreme Court found to be 
re uired under the Vehicle Code in Ratliff v. Lampion, 32 
C; 1. 2d 22G, 231-232 (1948), 195 P. 2d 792. In Ratliff the 
co irt held that:

“Wien read together, these sections may be con­
strued as providing for an investigation and hearing 
conducted by the department which Avould afford the 
licensee an opportunity to present evidence under the 
rule in the Carroll and Steen cases. If the department 
determined as a result of such investigation and hear­
ing that good cause existed therefor, it might suspend 
or revoke, but the order would not become effective



until 10 days after notice of the action taken. At any 
time within GO days after such notice the licensee was 
entitled to have the action of the department reviewed 
in a more formal hearing before the director or his 
representatives, in which the final decision was to be 
made by the director. The action of the department in 
suspending or revoking a license would not be stag 1, 
however, by an application for a hearing, and the 
order would become effective at the expiration of f le 
10-dav period notwithstanding the pendency of a re­
view by the director.” (Emphasis added; 32 Cal 2d 
220, 231-2)

All that the court required in Ratliff v. Lampton, was “ a 
prior opportunity to be heard . . . regardless of whet! or 
there is right to administrative review,” (32 Cal. 2d at 230) 
“which would afford the licensee an opportunity to present 
evidence under the rule in the Carroll and Steen cases.” (i.d. 
page 231). And what is the rule in these cases? In Steen 
v. Board of Civil Service Commissioners, 26 Cal. 2d 71G; 
1G0 p. 2d, 81G (1045) it should be noted the Civil Service 
employee was already discharged or suspended without 
any hearing. The Court’s concern was not the summary 
suspension but the hearing before the Civil Service Com­
mission to review that decision; the latter was much the 
same as the function of the fair hearing under Welfare & 
Institutions Code sections 10050, et seq. If the department 
finds for the well ere recipient, the county is directed to 
re-instate and reimburse the recipient. In Steen, the law 
provided that the county employee may be reinstated by 
the Civil Service board following an investigation bv the 
board or the board may make an order sustaining the dis­
charge. The full hearing required under Steen was before 
the Civil Service Commission and followed the employee’s 
suspension by the appointing power, i.e., the Department 
of Water and Power. To (he same effect: See also LaPrade

21



v. Department of Water £  Potvi , 27 Cal. 2d 47 162 p. 2d 13 
(1945); English v. City of Long Peach, 37 Cal. 2d 155 217 
p. 2 1 22 (1950).

Ii Carroll v. California Hors Racing i oard, 16 Cal. 2d 
164 05 p. 2d 110 (1940), conc< rning the revocation of a 
hor. i trainer’s license, the court held that nee the statute 
pro\ ided that no license may be revoked without just cause 
the Legislature intended notice and hearing io enable the 
licensee to appear and answer any charge or complaint 
lodged against him. The court held that this necessarily 
requires.a fair consideration of any evidence offered by 
the accused licensee. CSS 44-325.43 requires that recipients 
receive notice and may have a hearing to answer the charge 
of ineligibility and that a fair consideration be given to 
the evidence offered.

Amicus Curiaes’ statement (Br. 26) that “ 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 10 days not ice prior t o the revoca­
tion of the' license” is no where substantiated in the decision. 
The Department of Motor Vehicles had established no 
procedures at all and maintained that it could take sum- 
marv action. Further, the department contended that the 
10 days notice of revocation was to give the licensee an 
opportunity to arrange for his affairs, thus belying any 
presumption that the department was willing to meet and 
confer with the licensee. The court required a hearing but 
held that the department hearing could be less formal than 
the administrative hearing before the Director of the 
Department.

Keenan v. San Francisco Unified School District, 34 Cal. 
2d 708; 214 P.2d 382 (1950) is cited by Amicus Curiae (Br. 
26) for the proposition that an informal interview with ad­
ministrative officers “did not constitute a hearing contem­
plated bv the statutes” hence the “ informal conference” 
provided by the regulation is fatally defic ent. The informal



interviews Mrs. K< enan had with administrative officers of 
the Board of Ednc ition which were held not to he the heat ­
ing contemplated by the ‘‘ for cause” provision of the 
Education Code, did not purport to be a “hearing”. These 
interviews were preliminary to the board’s formal action 
dismissing her. “Mrs. Keen.au was not notified of the meet­
ing and was not p esent. . . .  It was stipulated at the ti'al 
that she was not a orded a hearing.” 34 Cal. 2d at 711. rl he 
court concluded “ i lat the cause relied upon by the school 
authorities must > specified and a hearing afforded ic 
the teacher to mee the charge.” Id. p. 715.

Subsequently, in Tucker v. San Francisco Unified Sch ol 
District, 111 Cal. pp. 2d 87 . 880, 882 2-15 P.2d 597 (19; ) 
the court (in cons dering rules adopted by the Board f 
Education follow n • the Keenan decision to implement d - 
missal “ for cans* ’ of probationary teachers) stated that 
“ dismissal for can; > onh obviously implies a hearing a id 
finding of cai se” but then concluded (despite Amicus 
Curiae’s assertion ; to the contrary), “neither did the 
Keenan case o • any of the cases cited therein,31 determine 
what is necessary o meet the requirment of notice and < 
hear in y.” Id. 882. ( Imph isis added.)

Finally, Ratliff i either specifically nor impliedly rejecls 
the appellee’s eonfintion thal the hearing required by the- 
“ for cause” stain8 need be no more and could very well be 
less than procidurd due process requii-es. Tn Ratliff ar l 
Keenan the court ited thal I though the Constitution do< < 
not require a hen. ing (he f.egislature could and had r ■ 
quired one in the statutes under consideration. It is f< ■ 
these statutorily impost d Inn rings that the court used tl ' 
fundamental due ; rocess requirements of notice and o]

31. Ratliff v. Lain it on, 32 (Ml. 2d 226; 195 I\2d 792 (1948., 
Carroll v. Californio torse liacintj Hoard, 16 Cal. 2d 164 (1940 ; 
Covert v. State Board of Equalization, 29 Cal. 2d 125 173 P.2d 545 
(1946).

23



2 -

po1 unity to ]>e heard. See Anderson Katunal Bank v. 
Lvi < It, 3121 U.S. 233, 243, 24(1- 7 (1944). In Anderson this 
Coi hold that the sufficiency the notice and hearing is 
to i determined by consider!) the purpose of the proce- 
dui . its effec-t on rights ass< ted and .11 otlier circum- 
sta 'is which may render the roceedin^ appropriate, id.
p. 16.

Amicus Curiae is in error in tating that six months is 
per nitted before a decision is rendered in a fair liearing 
under Welfare & Institutions Code sections L0950 et seq. 
(Bi 27). Effective July 1, 49(18, the Depa tment of Health, 
Edi ation and Welfare, in est; dishing one of the require- 
men s for state plans provide) that the decision must be 
mat e within (iO days. Federal Handbook of Public Assist- 
an Administration, Section (i300(.j) reads, ‘ ‘Prompt, de­
fine ive and final administrative action will be taken within 
60 lays from the date of the request for a fair hearing.” 
In ompliance with IJEW’s n |uirement, appellee Mont- 
goi ery adopted implementing regulations. In order to 
maintain conformity with federal .requirements the Legis­
lature has specifically provided that any statute “ shall be­
come inoperative to the extent that it is not in conformity 
with federal requirements.” (Welf. & Inst. Code § 11003.)

U ider the regulation the recipient is afforded prior ap- 
pris I of the proposed action, the grounds therefor and 
what information is needed from him. The recipient is 
info med of the nature and ext at. of the information upon 
win h the county has based its proposed action. lie is en­
title! to be re]iresented by counsel to present his evidence 
and an opportunity to meet with a County Welfare De­
partment representative in order to discuss and, if possible, 
resolve the question of eligibility. The county may with­
hold aid payments only if it has substantial evidence of 
probable ineligibility.



Amicus Curiae assert that (lie recipient is only afforded 
an “ informal conference” thereby implying that such a 
hearing ipso facto fails to meet the “ for cause” requir ment. 
This is simply not true. The Federal HEW Regulati m re­
lating to the full scale adjudicatory type fair hearing re­
quires that even this last hearing he an informal one. 
Section 0400(a) Federal Handbook of Public Assistance 
Administration provides that the fair hearing “ is con­
ducted in an informal raiher than formal court type pro­
cedure in order to serve the best interests of the claimant, 
however, the hearing is to be subject to (he requirements of 
due process” (Emphasis added).

CO N CLU SIO N

The statutes and regulations involved together wi it the 
policies and procedures evolved therefrom fully ; ccord 
due process of law and any other constitutional safe,; lards 
heretofore enunciated in the welfare context. That thi is so 
has been demonstrated by the present brief and by ti lack 
in opposing briefs of anv citation of authority deali g di­
rectly with the matters which wore the subject of d< ision 
by the court below.



die Court of Appeal of the State of California, First 
A ipellate District, Division Three, on August 19, 1969, 
is ued its decision in McCullough v. Terzian (1 Civil No. 
2.' 330) reversing the judgment of the Superior Court and 
r aching the same conclusion as the court below that the 
c illenged procedures are constitutional. Heavy reliance 
has been placed by appellants on the decision of the lower 
court in McCullough, set out in full in the Jurisdictional 
Statement, Appendix H. We desire to place 1he McCullough 
appellate court decision before this Honorable Court and 
to this end have added Appendix IV.

For the foregoing reasons, the judgment below should 
be affirmed.

Dated: August 28, 1969.

Respectfully submitted,

26

r uomas M. O’Connor
City Attorney City and 
County of San Francisco

1 vymond D. W illiamson,
Deputy City Attorney

Of Counsel

T homas C. Lynch
Attorney General

R ic h a r d  L. M a y e r s
Deputy Attorney General

E lizabeth Palmer
Deputy Attorney General 
6000 State Building 
San France eo, California 94102 
Telephone: 557-0266

Counsel for Appellees

(Appendices Follow)