Wheeler v. Montgomery, 48303.

Decision Date21 April 1969
Docket NumberNo. 48303.,48303.
Citation296 F. Supp. 138
PartiesMae WHEELER, individually and on behalf of all others similarly situated, Plaintiffs, v. John MONTGOMERY et al., Defendants.
CourtU.S. District Court — Northern District of California

Peter E. Sitkin, Arthur M. Schaffer, Gilbert T. Graham, San Francisco, Cal., for appellants.

Thomas C. Lynch, Atty Gen., of California, Elizabeth Palmer, Deputy Atty. Gen., San Francisco, Cal., Richard Mayers, Deputy Atty. Gen., Sacramento, Cal., Thomas M. O'Connor, City Atty., of San Francisco, Raymond D. Williamson, Jr., Deputy City Atty., San Francisco, Cal., for appellees.

Before HAMLIN, Circuit Judge, and WOLLENBERG and ZIRPOLI, District Judges.



This is an action for declaratory and injunctive relief. The facts concerning the named plaintiffMae Wheeler — are essentially as follows: The county welfare agency received a phone call which informed the county that Mrs. Wheeler had received the proceeds of her deceased son's insurance policy and had transferred the money to her grandson. The county determined that Mrs. Wheeler was therefore ineligible for continued welfare (Old Age Security O.A.S.) assistance and terminated her aid without affording her a hearing on the alleged facts prior to termination. On December 20, 1967, Judge Alfonso J. Zirpoli, the single judge to whom the application for a temporary restraining order was originally addressed, signed his memorandum opinion and entered various orders. He found the action to necessitate the convening of a three judge court and found a class action appropriate.

The parties have submitted extensive briefs and exhibits and the matter was submitted to the three judges on April 12, 1968, following oral argument.

With respect to the named plaintiffMae Wheelershe has now been afforded a "fair hearing" and has been found eligible for continued O.A.S. assistance. Furthermore, the claim originally pressed by plaintiff — that at least some hearing prior to the termination of O.A.S. was constitutionally compelled — has now been conceded by defendants. The State of California, subsequent to Judge Zirpoli's order of December 20, has adopted new regulations which do provide for what plaintiff terms an "informal conference" with the recipient (whose aid the county is about to terminate) and the county agency which is about to make the determination that the recipient is no longer eligible for aid.1

Therefore, the only issue remaining before this court is that raised by the class action which contends that the newly adopted regulations are constitutionally inadequate to afford due process at the pre-termination conference. The class contends that the regulations are insufficient in five respects: (1) the conference is with a county official of the agency which has already determined the question of eligibility rather than before an "impartial" referee; (2) the three day notice requirement is too short; (3) no transcript is required to be made or furnished and the decision is not specifically required to be made only on the evidence presented at the conference; (4) the burden of proof is on the recipient to establish eligibility and not on the county to establish ineligibility, and (5) confrontation and cross-examination are not required.

The constitutionality of the "informal conference" must be determined in light of the fact that even if aid is terminated, the State of California must provide the recipient with the kind of hearing plaintiff seeks.2 At present such "fair hearing" is required to be given within 45 days3 and a decision rendered within the next 75 days.4 As of July 1, 1968, the hearing and decision will be required to be made within 60 days.5

The court finds that the present California regulations (see note 1) do comport with the due process clause of the fourteenth amendment to the United States Constitution. The State of California having given Mae Wheeler, the named plaintiff, a fair hearing in which she has been found...

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7 cases
  • Kelly v. Wyman
    • United States
    • U.S. District Court — Southern District of New York
    • April 21, 1969
    ...procedure with an informal pre-termination "hearing" disposes of all due process claims, citing principally Wheeler v. Montgomery, 296 F.Supp. 138 (N.D.Cal. 1968) (three-judge court), appeal docketed, 37 U.S.L.W. 3152 (U.S. Oct. 22, 1968) (No. 634). In that case, as in this, state hearing p......
  • Bonner v. Texas City Independent School Dist. of Texas
    • United States
    • U.S. District Court — Southern District of Texas
    • September 2, 1969
    ...of California, 386 F.2d 962 (9th Cir. 1967), cert. denied, 390 U.S. 1011, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968); Wheeler v. Montgomery, 296 F.Supp. 138 (N.D.Cal.1968) (per curiam) (three-judge court), probable jurisdiction noted, 394 U.S. 970, 89 S.Ct. 1452, 22 L.Ed.2d 751 (1969); Boone v. W......
  • Rochester v. Ingram
    • United States
    • U.S. District Court — District of Delaware
    • January 14, 1972
    ...it followed the reversal by the Supreme Court in Wheeler v. Montgomery, supra, of the District Court's earlier decision in 296 F.Supp. 138 (N.D.Cal. 1968). The Supreme Court opinion discloses that the case involved the individual eligibility of the program beneficiaries. This is emphasized ......
  • Crow v. California Department of Human Resources
    • United States
    • U.S. District Court — Northern District of California
    • October 12, 1970
    ...stake as would justify the prosecution of an individual action. Kelly v. Wyman, cit. supra, 294 F.Supp. at 908; Wheeler v. Montgomery, 296 F.Supp. 138 (D.C.1968), rev'd on other grounds 397 U.S. 280, 90 S.Ct. 1026, 25 L.Ed.2d 307 (1970); Johnson v. Robinson, 296 F. Supp. 1165 (D.C.1967). Se......
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