McCall v. Shapiro

• Decision Date: 18 October 1968
• Docket Number: Civ. No. 12708.
• Citation: 292 F. Supp. 268
• Court: U.S. District Court — District of Connecticut
• Parties: Gertrude McCALL v. Bernard SHAPIRO, Commissioner, Connecticut Welfare Department.

292 F. Supp. 268

Gertrude McCALL v. Bernard SHAPIRO, Commissioner, Connecticut Welfare Department.

Civ. No. 12708.

United States District Court D. Connecticut.

October 18, 1968.

COPYRIGHT MATERIAL OMITTED

Sydney T. Schulman and Mary R. Hennessey, Hartford, Conn., for plaintiff.

Francis J. MacGregor, Asst. Atty. Gen., East Hartford, Conn., for defendant.

RULING ON MOTION TO CONVENE A THREE-JUDGE DISTRICT COURT

BLUMENFELD, District Judge.

The plaintiff has brought this action in forma pauperis to test the validity of certain statutes and regulations relating to the administration of that part of Connecticut's comprehensive scheme of public assistance relating to Aid to Families with Dependent Children (AFDC). See Conn.Gen.Stats.Ann., Chapter 302, Part II, §§ 17-84 to 17-107 inclusive.¹ Specifically, she challenges §§ 17-2a and 17-2b, which afford a fair hearing before the Welfare Commissioner by any person aggrieved by a decision of the Commissioner, and a right of appeal therefrom to the Circuit Court. Her contention is that on their face and as applied under regulations promulgated thereunder they deny her the "due process" guaranteed by the fourteenth amendment. Neither the statutes nor the regulations specifically provide for a hearing prior to an administrative order.

Acting under the statute, the Commissioner temporarily suspended AFDC payments for the assistance of plaintiff and two minor daughters prior to a hearing. Contending that the Commissioner's order was on that account a denial of due process, she asks for a declaratory judgment and a permanent injunction enjoining the defendant from "modifying, suspending or terminating public welfare assistance prior to a fair hearing."

Jurisdiction

The plaintiff relies upon 42 U.S.C. § 1983 for a cause of action and upon 28 U.S.C. § 1343(3) for this court's jurisdiction. Since the plaintiff seeks an injunction restraining the enforcement of a state statute, she has requested the convocation of a three-judge district court under 28 U.S.C. §§ 2281, 2284.

It is now well settled, see Green v. Board of Elections, etc., 380 F.2d 445, 448 (2d Cir. 1967), cert. denied, 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840 (1968), quoting Utica Mut. Ins. Co. v. Vincent, 375 F.2d 129, 130 (2d Cir.), cert. denied, 389 U.S. 839, 88 S.Ct. 63, 19 L.Ed.2d 102 (1967), that "when a complaint for an injunction makes a claim of unconstitutionality which on its face would require a court of three judges * * * the single district judge should consider whether the claim is substantial and, if he finds it is not, refuse to convoke a court of three judges and dismiss the action."

The threshold question, therefore, is whether there is a lack of substantiality in the federal question presented "either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of the Supreme Court as to foreclose the subject." California Water Serv. Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323 (1938).

When the question is what process is due, the answer must depend on the conflicting interests of the parties and the circumstances of the particular case. E. g., Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed. 2d 193 (1961). Where the broad claim is made that due process requires a hearing prior to decision "the specific context of fact and decision out of which the question arises must be set forth." FCC v. WJR, 337 U.S. 265, 267, 69 S.Ct. 1097, 1099, 93 L.Ed. 1353 (1948). In her complaint, it appears that the plaintiff makes two separate claims. Although properly joined in one action, it will make for clarity to consider them separately. Accordingly, the facts upon which plaintiff claims an unconstitutional denial of due process are considered first. At this stage of the proceedings, the facts as alleged in her complaint are taken as true. See Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964).

The Facts

For more than five years before the incidents which precipitated this suit the plaintiff had been receiving state welfare assistance in behalf of herself and her two daughters, Carolyn Summerset (now in her sixth year) and Georgianna Merchant (age eleven).

On May 24, 1968, the plaintiff was notified by the Social Security Administration that her daughter Georgianna was found eligible to receive Old Age, Survivors and Disability Insurance benefits (OASDI) under Title II of the Social Security Act. The following month, June 1968, the plaintiff received as representative payee for Georgianna a retroactive lump sum OASDI payment in the amount of $334.10 for the period beginning September 1967 through and including May 1968. The monthly amount was $45.20 for each of the months of September, October, November, December 1967 and January 1968, and $51.10 for each of the months of February, March, April and May 1968.

Upon receipt of the OASDI lump sum payment, the plaintiff notified defendant's agent and advised said agent that pursuant to the instructions for representative payees enclosed with the payment, this money would be used for Georgianna's present and future needs. Whereupon, defendant's agent made demand upon the plaintiff for the total amount of the lump sum OASDI payment as reimbursement for assistance rendered Georgianna during the months covered by that payment.

Upon plaintiff's refusal to turn over the OASDI payment to defendant's agent, the plaintiff was notified that the total AFDC for herself and her two daughters would be terminated for that period of time which it would take the three of them to exhaust the $334.10 OASDI payment using said amount to meet their combined living expenses. Plaintiff's AFDC assistance was terminated on May 29, 1968.

On June 6, 1968, the plaintiff requested a fair hearing. This was granted, and a hearing was held on June 20, 1968. At the fair hearing the plaintiff argued: (a) that the OASDI retroactive lump sum payment was a restricted payment made in behalf of a minor and as such exempt from the defendant's reimbursement requirement; and (b) that termination of plaintiff's AFDC for herself and two children without first according her a hearing was a denial of "due process of law" guaranteed under the fourteenth amendment of the United States Constitution, since once having been found eligible to receive assistance, plaintiff's right to continue to receive such assistance could not be terminated without a hearing.

The fair hearing decision, rendered on July 23, 1968, rejected plaintiff's arguments and upheld the action of the defendant in withholding assistance.

The Right Involved

The nature of a claim for welfare assistance is not irrelevant to the measure of due process protection accorded its allowance. Some rights are accorded more protection than others. Cf. United States v. Carolene Products Co., 304 U.S. 144, 152-153 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938).

"`Due process' is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. * * * Therefore, * * * it can be said that due process embodies the differing rules of fair play, which through the years have become associated with differing types of proceedings. * * * The nature of the alleged right involved * * * must be taken into account." Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed. 2d 1307 (1959) (Emphasis added).

In describing benefits under Title II of the Social Security Act (OASDI), the Supreme Court has said that although these benefits are in one sense "earned," they do not rise to the dignity of "accrued property rights." The Court held that not every deprivation of such benefits would be "violative of the Due Process Clause of the Fifth Amendment." Flemming v. Nestor, 363 U.S. 603, 610-611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1959). A welfare beneficiary's interest in AFDC assistance cannot in any sense be said to have been "earned." Such welfare assistance (AFDC), whether classified as a "benefit" or a "gratuity" has even fewer attributes of a "right" than Social Security benefits (OASDI). Nonetheless, the absence of a substantive "property right" does not alone establish the absence of a right to fair procedure. The courts have not confined the protection of the fourteenth amendment's due process clause to "property" in the conventional sense. Cf. Slochower v. Board of Educ., etc., 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). The welfare claimant is entitled to have her interest in AFDC assistance considered in accordance with statutory criteria and safeguards. But even beyond that, her interest in receiving welfare assistance falls within the spectrum of interests entitled to the protection of procedural fairness afforded by the due process clause of the fourteenth amendment. Note, Federal Judicial Review of State Welfare Practices, 67 Col.L.Rev. 84, 110 (1967). Cf. Flemming v. Nestor, supra.

As always, in reaching the crucial issue, it is important to determine what is not involved. It is an overstatement of the case to state simply that the AFDC payments were terminated without a prior hearing. The stance taken by the parties in their dispute over the right to possession of the OASDI payment in behalf of Georgianna tends to distort the issue. The form of the statement by the plaintiff is not controlling. The substance of her case is that upon informing the Welfare Department of her possession of the check as representative payee for Georgianna and her refusal to turn it over to the Welfare Department at its request, the Commissioner determined that so long as the $334.10 was available to her to provide for the needs of herself and family at the pre-determined rate of assistance benefits, such benefits would be withheld. From her...