Crawford v. Janklow, 83-1298

• Decision Date: 30 June 1983
• Docket Number: No. 83-1298,83-1298
• Parties: Jacqueline A. CRAWFORD and Nancy L. Emerson, on behalf of themselves and all others similarly situated, Appellees, v. William JANKLOW, Governor of the State of South Dakota and James Ellenbecker, Secretary of the South Dakota Department of Social Services and the Agents, Employees and Successors of the above, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1321

710 F.2d 1321

Jacqueline A. CRAWFORD and Nancy L. Emerson, on behalf of themselves and all others similarly situated, Appellees, v. William JANKLOW, Governor of the State of South Dakota and James Ellenbecker, Secretary of the South Dakota Department

of Social Services and the Agents, Employees and Successors

of the above, Appellants.

No. 83-1298.

United States Court of Appeals,

Eighth Circuit.

Submitted May 20, 1983.

Decided June 30, 1983.

Mark V. Meierhenry, Atty. Gen., Janice Godtland, Asst. Atty. Gen., Dept. of Social Services, Legal Services, Brent Wilbur, May, Adam, Gerdes & Thompson, Pierre, S.D., for appellants.

Black Hills Legal Services, Inc. by Mark Falk, Dennis Whetzal, Rapid City, S.D., for appellees.

Before LAY, Chief Judge, and HEANEY and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

In August of 1981, Congress passed the Low-Income Home Energy Assistance Act of 1981, 42 U.S.C. Secs. 8621-8629 (Supp. V 1981), as Title XXVI of the Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, 95 Stat. 357 (1981). This federal home energy assistance legislation provided for block grant funds available to states making proper application therefor. The State of South Dakota received such a grant and devised the Low-Income Energy Assistance Program [LIEAP] for 1982-1983 to distribute the funds to its citizens. LIEAP categorically excluded persons residing in subsidized or public housing from receiving the home energy assistance available under the program. We agree with the district court ¹ that this exclusion violates the federal statutory requirement that the State distribute the funds to the most needy in terms of income and proportionate energy costs. Accordingly, we affirm the court's order compelling state officials to include persons living in subsidized or public housing as potential recipients of this home energy assistance.

I. BACKGROUND

In the summer and fall of 1982, South Dakota developed LIEAP in order to distribute the home energy assistance funds it planned to receive from the federal government for the 1982-1983 heating season under the Low-Income Home Energy Assistance Act of 1981. As part of LIEAP, the State promulgated a regulation defining "vulnerable households" eligible for home energy assistance in South Dakota. That regulation provided:

Vulnerable households are those in which the members meet the following requirements:

(1) Own or rent their home;

(2) Do not live in subsidized or public housing; and

(3) Are totally responsible for paying their own heating costs directly to an energy supplier or as a portion of rent.

S.D.Admin.R. 67:15:01:06 (1982). The second subsection of this regulation, on its face, excludes all residents of subsidized or public housing from consideration for LIEAP assistance.

On December 21, 1982, a class of plaintiffs living in subsidized or public housing brought suit in the United States District Court for the District of South Dakota against the Governor of South Dakota, the Secretary of the South Dakota Department of Social Services, and the agents, employees, and successors of these persons, all in their official capacities (hereinafter State). The plaintiffs allege that the State's categorical exclusion of persons living in subsidized or public housing from consideration for LIEAP assistance violated two provisions in the Low-Income Home Energy Assistance Act of 1981, 42 U.S.C. Secs. 8624(b)(5) & (8) (Supp. V 1981); the policy and intent of the United States Housing Act of 1937, 42 U.S.C. Secs. 1437 et seq. (1976 & Supp. V 1981) (as amended); the equal protection and due process clauses of the fourteenth amendment to the United States Constitution; and other federal and state laws.

The district court decided the case on an expedited basis. On February 4, 1983, it certified the class status of the plaintiffs. Then, on February 18, 1983, it issued findings of fact and conclusions of law in favor of the plaintiffs. ² The court discussed the effects of the LIEAP exclusion primarily in the context of persons living in housing subsidized under 42 U.S.C. Sec. 1437f (1976 & Supp. V 1981) (as amended), commonly referred to as Section 8 housing. Crawford v. Janklow, 557 F.Supp. 1146, 1147 (D.S.D.1983). A large segment, if not a majority, of the plaintiff class apparently is excluded from LIEAP assistance because those class members live in Section 8 housing. The State asserted that the exclusion of Section 8 recipients was designed to avoid duplicate energy assistance payments, since part of the Section 8 subsidy is for home energy assistance over and above a shelter allowance. The district court, however, cited several examples, based on statistics drawn from the exhibits placed in evidence, which demonstrated that the Section 8 home energy subsidy for some families could be smaller than the LIEAP subsidy which those families could receive but for their residence in Section 8 housing and smaller than LIEAP subsidies actually given to families with greater income not residing in subsidized or public housing. Id. at 1148-1150. Thus, instead of merely avoiding duplicate payments, LIEAP withheld assistance from Section 8 families regardless of the relative sizes of Section 8 and LIEAP energy subsidies, and regardless of the relative incomes of families excluded because of their Section 8 residence as compared to families actually receiving LIEAP subsidies.

The district court held that this categorical exclusion of Section 8 recipients, along with others in subsidized or public housing, violated the Low-Income Home Energy Assistance Act of 1981. 42 U.S.C. Sec. 8624(b)(5) (Supp. V 1981). The court found that statute to require the State to "give priority to those households with the lowest incomes and highest energy costs relative to income." Crawford v. Janklow, supra, 557 F.Supp. at 1150. As alternative grounds for its holding, the court also stated that LIEAP violated the due process and equal protection clauses of the United States Constitution. Id. at 1150-1152. The court then rendered its judgment ordering the State to (1) receive applications for LIEAP assistance from any plaintiff class member, (2) disseminate reasonable notice of the taking of applications from such parties, (3) grant a reasonable time for the making of such applications, and (4) award LIEAP assistance based upon selection criteria not inconsistent with its decision. The State appeals from this judgment. ³

II. DISCUSSION

The State contests both the statutory and constitutional grounds underlying the district court's invalidation of LIEAP insofar as that program categorically excluded persons living in subsidized or public housing. When a party raises both statutory and constitutional questions, courts generally refrain from addressing the constitutional matters if the resolution of the statutory issues is dispositive of the case at hand. Blum v. Bacon, 457 U.S. 132, 137-138, 102 S.Ct. 2355, 2359-2360, 72 L.Ed.2d 728, 733-734 (1982); United States v. South Dakota, 636 F.2d 241, 243 n. 2 (8th Cir.), cert. denied, 452 U.S. 939, 101 S.Ct. 3082, 69 L.Ed.2d 953 (1981). Because we find that the State's categorical exclusion violates the federal statute governing this home energy assistance program, we need not decide whether the same exclusion violates either the due process or equal protection clauses of the federal Constitution.

A. Existence of a Statutory Cause of Action.

The Low-Income Home Energy Assistance Act of 1981 specifically provides:

As part of the annual application required by subsection (a) of this section, the chief executive officer of each State shall certify that the State agrees to--

* * *

* * *

(5) provide, in a manner consistent with the efficient and timely payment of benefits, that the highest level of assistance will be furnished to those households which have the lowest incomes and the highest energy costs in relation to income, taking into account family size; * * *.

42 U.S.C. Sec. 8624(b)(5) (Supp. V 1981).

The plaintiffs asserted, and the district court found, that the State's categorical exclusion of persons living in subsidized or public housing from consideration for LIEAP assistance violated this provision.

The district court, insofar as it based its decision on this statute, necessarily assumed that the plaintiffs had a cause of action, express or implied, against the State to enforce the condition imposed by section 8624(b)(5). Indeed, the State did not question the existence of such a cause of action either before the district court or before this Court. The plaintiffs, however, cited no express provision of the home energy assistance legislation granting them access to federal courts to enforce its provisions. We generally will not consider an issue not raised or passed upon below. Singleton v. Wulff, 428 U.S. 106, 120-121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). An appellate court, however, may consider issues which are in "the nature of a jurisdictional bar" for the first time on appeal. See Edelman v. Jordan, 415 U.S. 651, 677-678, 94 S.Ct. 1347, 1362-1363, 39 L.Ed.2d 662 (1974) (deciding question under the eleventh amendment of the United States Constitution which was first raised on appeal). Because we view the existence of an express or implied cause of action as a jurisdictional prerequisite to the plaintiffs' recovery under the statute herein, we cannot ignore this issue. Furthermore, our immediate resolution of this legal question is necessary to insure that the State has sufficient time to conform LIEAP to the requirements of federal law prior to the next heating season.

The question of whether the plaintiffs may enforce section 8624(b)(5) against state officials who fail to comply with its provisions may be approached in two ways: (1) deciding whether the plaintiffs have an implied cause of action against the State directly under the Low-Income Home Energy Assistance Act of 1981; or (2) deciding...