Will v. Department of Health and Social Services of State of Wis.

• Decision Date: 31 October 1969
• Docket Number: No. 141,141
• Citation: 44 Wis.2d 507,171 N.W.2d 378
• Parties: Evelyn WILL, on behalf of herself and others similarly situated, Appellant, v. DEPT. OF HEALTH & SOCIAL SERVICES OF THE STATE OF WISCONSIN et al., Respondents.
• Court: Wisconsin Supreme Court

Page 378

171 N.W.2d 378

44 Wis.2d 507

Evelyn WILL, on behalf of herself and others similarly situated, Appellant, v. DEPT. OF HEALTH & SOCIAL SERVICES OF THE STATE OF WISCONSIN et al., Respondents.

No. 141.

Supreme Court of Wisconsin.

Oct. 31, 1969.

Rehearing Denied Jan. 9, 1970.

The part of the order of the circuit court appealed from granted respondent's motion to quash the alternative writ of mandamus. Evelyn Will, on behalf of herself and others similarly situated, filed a petition for an alternative writ of mandamus to require the Department of Health and Social Services to hold hearings within sixty days to review denials of requests for additional benefits made by recipients of categorical aids. ¹ Respondent filed a motion to quash on the ground that petitioner had failed to establish a legal right to the holding of hearings within sixty days. Respondent filed a demand for change of venue to Dane county based upon sec. 261.01(9), Stats. The trial judge denied respondent's motion for change of venue. The trial judge granted respondent's motion to quash. Appellant appeals from order granting motion to quash. Respondent cross-appeals from order denying change of venue

Zubrensky, Padden, Graf & Bratt, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Donald P. Johns, Asst. Atty. Gen., Madison, for respondent Dept. of H & SS.

ROBERT W. HANSEN, Justice.

To secure the writ of mandamus sought, appellant was required to establish '* * * a clear legal right' to the performance of a '* * * duty sought to be enforced (which) is positive and plain. * * * ' ² The motion to quash an alternative writ of mandamus is to be treated in the same manner as a demurrer. ³ Such motion admits the allegations of fact in the petition but asserts that the facts alleged do not support issuance of the writ. ⁴

The petitioner and others had requested hearings before the state department after being denied certain additional benefits by the county agency administering the distribution of categorical aids.

The only issue in this case is whether the relevant statutes and department rules confer upon petitioner a clear legal right to a hearing and a decision within sixty days of the date of request for such hearing.

FEDERAL STATUTE

The relevant section of the Social Security Act which provides for a review hearing before the state agency in aid for dependent children cases is:

'(a) A State plan for aid and services to needy families with children must (1) provide that it shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them; (2) provide for financial participation by the State; (3) provide for granting an opportunity for a fair hearing before the State agency to any individual Where as here petitioner was denied additional AFDC payments, the federal statute provides for a hearing before the state agency, but does not require that the hearing be held within sixty days of the request.

whose claim for aid to families with dependent children is denied or is not acted upon with reasonable promptness.' ⁵ (Empahasis supplied.) (Emphasis supplied.) the other categories are contained in 42 U.S.C.A. §§ 302(a), 1202(a), 1352(a).

STATE STATUTE

The relevant section of the Wisconsin statute providing for a hearing by the state agency in cases involving AFDC payments and other categorical aids is:

'* * * Any person whose application for aid to the blind, old-age assistance, aid to families with dependent children and aid to totally and permanently disabled persons is not acted upon by the county agency with reasonable promptness after the filing of the application, or is denied in whole or in part, or whose award is modified or cancelled, or who believes his award to be insufficient, may petition the department for a review of such action. The department shall, upon receipt of such petition, give the applicant or recipient reasonable notice and opportunity for a fair hearing. * * *' ⁶ (Emphasis supplied.)

This responsive state legislation follows the federal enactment in providing for a fair hearing review by the state department. It does not require that the hearing be held or decision reached within sixty days.

FEDERAL/STATE REGULATIONS

Petitioner does not cite and we do not find what could be termed a duly enacted federal regulation setting sixty days as the time limit for the hearing before the state agency. The only duly enacted administrative rule on this point in Wisconsin sets forth the steps required in seeking a review hearing by the state department and defines the nature of such hearing. ⁷ The rule does not provide that the state agency hearing is to be held within sixty days. The only reference to sixty days or any specific time limit appears to be in two handbooks, one put out by a federal agency, one by the state department against which this writ is sought. Each handbook will be analyzed in turn.

FEDERAL HANDBOOK

A publication of the U.S. Dept. of Health, Education and Welfare, entitled 'Handbook of Public Assistance Administration,' includes this paragraph:

'Prompt, definitive and final administrative action will be taken within sixty days from the date of the request for a fair hearing. The claimant will be notified of the decision, in writing, in the name of the State agency, and, to the extent that it is available to him, of his right to judicial review.' ⁸ (Emphasis supplied.)

In order to determine the effect of this handbook statement, it is necessary to consider the federal/state relationship involved in the AFDC (and similar categorical aids) program. A beginning is this quotation from a recent United States Supreme Court decision:

'The AFDC program is based on a scheme of cooperative federalism. * * * It is financed largely by the Federal Government, on a matching fund basis, and is administered by the States. States are not required to participate in the It is the federal Social Security Act which contains the basic conditions for allocation of federal funds to the several states for the special purposes here involved. However, the Secretary of Health, Education and Welfare may also promulgate certain requirements, in conformity with the Social Security Act, with which a proposed state plan for participation in the funds and program must comply. The handbook details a variety of provisions which the states are urged to include in their state plan in order to insure its being acceptable to the secretary and likely to be approved by him. All of this is material only as to whether or not the state plan is to be approved by the secretary. Once such plan is approved, the responsibility for administration is placed upon the state. The state plan is not some vague or formless set of regulations. It consists of the state legislation and administrative rules and regulations enacted pursuant thereto. The state legislation and regulations do not have added to them every suggestion in an earlier-issued federal handbook put out to inform states as to what they should include in their plan. If the state plan submitted does not include all handbook suggestions, it is for the secretary to determine whether the plan as submitted is to be approved. He approves or rejects the plan as submitted. He cannot approve a plan as submitted, after grafting onto it everything contained in a handbook. At least he did not. We do not deal here with the matter of withholding federal funds because of the manner in which a matching fund program is being administered. We are asked where one looks to determine the rights of recipients of certain categorical aids and we hold one looks to the federal statutes, the responsive state statutes and the valid rules and regulations adopted by the state agency charged with administering the program. We conclude that no federal statute, no federal regulation, or no state statute has set a sixty-day limit for conducting the review hearing by the state department in the situation here presented.

program, but those which desire to take advantage of the substantial federal funds available for distribution to needy children are required to submit an AFDC plan for the approval of the Secretary of Health, Education and Welfare. * * * The plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by HEW. * * *' ⁹

STATE MANUAL

There remains the question of whether the state department by its own rule or regulation has bound itself to conduct such hearing within a sixty-day time limit. The claim that it has is based on the manual, 'Administrative Methods,' (revised 8--12--68), particularly Chapter IX--5, setting forth provisions for conducting review hearings by the state agency of county department rulings. It sets forth a step-by-step procedure, including:

1. Mailing notice of hearing not later than three working days after receipt of petition or request for hearing.

2. Requiring county agency to prepare and provide state agency with a summarized statement of the case within ten days from the date of the notice.

3. Scheduling a hearing not later than fifteen days from the day the summary is received.

4. Providing for conduct of hearing by hearing officer, providing for stenographer who can operate a tape recorder to be present.

5. Providing that summary of the hearing, the recorded tape, exhibits and the recommendation of the hearing officer be sent to the legal section within seven days of hearing for preparation of formal decision.

6. Providing that the decision on the hearing will be made within fifteen days after receipt of the summary.

There is dispute as to whether the manual constitutes a rule or regulation as statutorily defined, ¹⁰ particularly because it was not enacted pursuant to the normal and statutorily prescribed procedure. ¹¹ The contention is that the manual material is no more than a set of suggested guidelines for the conduct of review hearings. However...