Lavine v. Milne – Oral Argument – December 02, 1975

Media for Lavine v. Milne

Audio Transcription for Opinion Announcement – March 03, 1976 in Lavine v. Milne

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Warren E. Burger:

We will hear arguments first this morning in 74-1137, Lavine against Milne.

Mrs. Juviler.

Amy Juviler:

Mr. Chief Justice and may it please the Court.

This appeal presents the issue whether legislatively created rebuttable presumptions in civil cases will continue to be hospitably treated by the Courts as long as there is some rational connection between the facts proven and the facts presumed.

Appellant, the Commissioner of Social Services of the State of New York appeals to preserve his position that this established standard is the appropriate measure for judging rebuttable presumptions in these cases.

It also his position that the statute, the presumption in Section 131-11 of New York Social Services Law which was declared invalid on its face by a three-judge District Court on the motion for summary judgment is in fact valid under the established standard.

The presumption is contained in a statute governing eligibility for public assistance in New York State.

The statute provides that a person who voluntarily terminates his employment or reduces his earning capacity for the purpose of obtaining public assistance or increasing his grant is ineligible for public assistance for a period of 75 days.

The presumption which was declared invalid below is an evidentiary rule for determining whether the purpose of the person in quitting his job was to obtain public assistance.

That presumption is triggered only when the person voluntarily terminates his job and when he applies for public assistance within 75 days, then and only then is he presumed to have terminated for the purpose of obtaining public assistance.

The statute applies to applicants for AFTC as well as to the state created Home Relief Program.

However, no plaintiff was an applicant for AFTC and the specific statutory and regulatory provisions apply differently in the cases of AFTC applicants.

Both parties now agree that the Court below erred in extending its order to include AFTC applicants and question number three is no longer an issue between the parties.

Therefore, we will address ourselves solely to the application of this presumption to applicants for the state aid at Home Relief Program.

Home Relief is the assistance provided by New York State to persons who are not eligible for federal categorical assistance.

That this persons who Congress has not deemed to be the most needy people and because it is totally supported by the public moneys from the treasuries of the state and local governments in New York, the terminations of eligibility are totally governed by State Law and the issue presented in this Court is only the validity of that state law under the constitution.

Potter Stewart:

Only the validity of the presumptions, right?

Amy Juviler:

That is correct, Mr. Justice Stewart.

Potter Stewart:

Not of the substantive law that this allows Home Relief for somebody who has quit his job for the purpose of going on Home Relief?

Amy Juviler:

That is correct.

Potter Stewart:

— before 75 days, not the substantive law, that is not an issue here, is it?

Amy Juviler:

Well, that is the precise form of the order, is to declare the presumption invalid, but as a practical matter it precludes this very sensitively drafted statute from having a practical fit.

Potter Stewart:

Well, is it not the — I maybe a little obtuse, but as you go on in the argument, maybe you can clarify it for me.

I thought the other of the claim is that as a practical manner invalidating this presumption is not very important, so long as the substantive law remains in effect, if the applicant has the burden of proof in any event?

Amy Juviler:

Yes, Your Honor, one of the things that we find amazing about this case is that the Court below found this presumption to violate the plaintiff class’ constitutional rights because if one reads the statute which clearly says that he has the burden of coming forward and proving each element of eligibility —

Potter Stewart:

Right.

Amy Juviler:

— in any event, the presumption merely clarifies and makes explicit his duty to do so and promotes uniformity of application throughout the state.

It does not add any burdensome procedural impediment to his obtaining public assistance.

Potter Stewart:

That is what I gathered from reading the briefs and if that is so, then the invalidation of the presumption does not hurt the state’s position very much, does it?

Amy Juviler:

Yes, it does.

Potter Stewart:

With law?

Amy Juviler:

Yes, it does Your Honor.

Potter Stewart:

Why?

Amy Juviler:

The major reason that it does is that it is an injunction.

The appellant, the Commissioner of Social Services and his agents in the local departments are now enjoined from enforcing this presumption, which means that they are enjoined from requiring a person to come forward and produce evidence of why he terminated his employment.

Potter Stewart:

Well, if the substantive law remains wholly valid that a person is not eligible for Home Relief, if for the first 75 days after the termination of his employment, if he has terminated his employment for the purpose of going on Home Relief, he has to prove his eligibility, he has the burden of proof?

Amy Juviler:

That is correct, Your Honor.

Potter Stewart:

That remains true under this Court’s decision whether or not it is going through the motions of invalidating this statutory presumption?

Amy Juviler:

Except —

Potter Stewart:

And if that is true what difference does it make?

Amy Juviler:

The difference that it makes is as follows.

There is an injunction against appellant from specifically requiring a person to produce evidence of the purpose.

Therefore, while there is a general duty to produce each element of evidence to prove each element of eligibility, the eligibility under 131-11, that is the purpose for which you terminated your employment, cannot be produced or at least there is a considerable cloud on a local agent who required the production on the one hand or on the other who made a determination unfavorable to the applicant when the record was silent as to his purpose.

That is the effect of the presumption.

Now, while we agree with the Court that the presumption did not add to the procedural burdens.

When a court invalidates the statute and enjoins a party he is put at his peril to continue to operate the underlying statute in which he could impose that duty because he is subject to contempt.

I want to note that there is already been an effort to find appellant in contempt in this case.

Potter Stewart:

But an applicant for Home Relief still has the burden of proving his eligibility, does he not?

Amy Juviler:

I believe that that will be up to this Court and it is —

Potter Stewart:

Is it not that correct as matter of New York law?

Amy Juviler:

Yes, except the injunction in this case raises very considerable doubt.

Potter Stewart:

Alright, it is a matter general law —

Amy Juviler:

Yes.

Potter Stewart:

— an applicant for anything has to prove his eligibility for what he wants?

Amy Juviler:

Yes, Your Honor that is correct.

Warren E. Burger:

I take it what you are saying to us now that this injunction does in fact impinge upon the substantive law?

Amy Juviler:

Yes I think it makes it effective because of the nature of this very sensitive statute.

Since the statute is only invoked when the person has terminated his employment for the purpose of obtaining public assistance, the next question for the legislature is how we measure a person’s purpose and since it is always matters that are totally within his control, they place the burden explicitly on the applicant to produce credible evidence of his purpose, that his purpose was not to obtain public assistance when he quit his employment.

And without the presumption whether the presumption as explicitly written and clarified under the legislative program or the general rules of law which would enable the local administrator to enforce such a presumption without the ability of the local administrator to put the specific burden of proof on the applicant this statute is unworkable.

Potter Stewart:

Let me — just one more try one more time and then just I will to try stop bothering you —

Amy Juviler:

Right.

Potter Stewart:

— and then in the course of your argument maybe you can explain it.

Had there never been this presumption as a matter of New York law —

Amy Juviler:

Yes.

Potter Stewart:

— it would not have — the applicant would have still had the burden of proving his eligibility?

Amy Juviler:

Yes.

Potter Stewart:

And in fact, the law generally would have been as though this presumption were written into the law?

Amy Juviler:

That is correct, Your Honor.

The local agency could have required him to produce the evidence.

Potter Stewart:

Right.

Had they never been any statutory presumption?

Amy Juviler:

The only —

Potter Stewart:

And therefore never been this lawsuit?

Amy Juviler:

Yes, that is —

Potter Stewart:

The applicant still has to prove his eligibility?

Amy Juviler:

That is our position that he still could be required to.

The only difference the presumption made and it is a subtle difference and I do not say that it is constitutional import, that is the whole weight of our argument that the Court below had no grounds, whatever to find this presumption violated anybody’s constitutional right.

But the only difference the presumption made was that it clarified the specific duty and it promoted uniformity throughout the Districts and considering the complicated administrative scheme we are talking about, that is not an insignificant matter.

William H. Rehnquist:

Is there any reason why New York could not have provided that no person should be eligible for Home Aid until 75 days after he voluntarily quit his job?

Amy Juviler:

There certainly is no reason, Your Honor.

Our near neighbor New Jersey, does have that requirement.

They say that any applicant for aid for the families of the working poor are ineligible for assistance after voluntary termination for 90 days.

Furthermore, in the federal AFTC program for unemployed fathers, the entire family is ineligible for assistance for 30 days, irrespective of whether the person voluntarily terminated or whether he was fired, as long as after termination of employment he was ineligible for 30 days, so that there are parallel statutory schemes, to say nothing of numerous parallel regulatory schemes which provide just that.

William H. Rehnquist:

So that New York scheme is actually more liberal in that regard than say New Jersey that you correctly described New Jersey?

Amy Juviler:

That is correct and indeed, I think that anyone looking at this statutory schemes sees the very narrow road that our legislature travels.

They could have done what Arizona and Delaware did and said that no employable person is eligible for the state general assistance or they could have done what New Jersey and the Federal government did and say that nobody is eligible after voluntary termination of employment or they could have said nobody is eligible after voluntary termination for the purpose of obtaining public assistance and they did not do any of those things.

They said a person is eligible who voluntarily terminates for the purpose of obtaining public assistance after 75 days.

So that this is very, very permissive statute and that is why the essential of the evidentiary rule that is present here is so important because it is the only thing that allows this permissive statute to have any practical effect.

Because if you switched the burden and impose the burden on the state department and the local agencies to prove purpose, you would have completely shackled them and I want to point out that appellees do suggest that the state agency and local departments have an easier time, proving the purpose with which the applicant left his employment.

I think that it is plain that the applicant, no matter how uneducated and how poor he maybe, is in a better position to tell the agency why he quit his job and the agency with all the learning in world is able to tell him why he quit his job.

Potter Stewart:

In this particular case, the plaintiffs do not seem to have to quit their jobs, they seem to have been fired?

Amy Juviler:

Yes Your Honor, that is correct.

The problem in this case was not whether the plaintiffs had a complaint.

I think there are two problems in this case were not really at issue.

It is clear that the named plaintiffs, except for Joseph Beverly, had a very serious complaint and it is also clear that the statute of which they were complaining was obviously valid by all of the rules of procedural and substantive due process that have ever been enunciated by any Court who seriously gave it a moment’s thought and the problem that this case created was a terrible mixed up of these two things.

One, the plaintiffs have this complaint about the application of the statute and the Court probably in impatience because of the serious misapplication of the statue decided to knock out the presumption.

Knocking out the presumption did not help Milne, Strider (ph) or Lee (ph).

Potter Stewart:

Did not know?

Amy Juviler:

Because the presumption was not applied to them.

They were fired form their jobs.

Potter Stewart:

Well, they were victims of maladministration by the state and they probably not (Voice Overlap)

Amy Juviler:

Yes and we point —

Potter Stewart:

Under the statute?

Amy Juviler:

Well, we do not even concede that it is under the statute.

It applies so much in the face of the statutes.

Potter Stewart:

They were victims of unfair administration of the law?

Amy Juviler:

Administration of the law without a question and we are not here defending that maladministration.

Potter Stewart:

Right.

Amy Juviler:

We have separated ourselves from it since the very beginning.

Indeed the local commissioner was separately represented and when the decision below came down in which the presumption was invalidated on its face he did not appeal because there was no finding against him.

The only thing that really we are here defending is the statute which really did not cause any of the hardships that are outlined below and that is exactly the posture of this case Mr. Justice Stewart.

I want to point out why that presumption is inherently rational.

Byron R. White:

If Mr. Justice Stewart is correct that it would not make any difference whether the presumption is in or out of the case then there is hardly any case of controversy about that statute and the District Court should never adjudicated it and much of that, you would vacate and dismiss the case?

Amy Juviler:

No, Your Honor.

Byron R. White:

And you would not really care about that, would you?

Amy Juviler:

You mean about this presumption particularly?

Byron R. White:

Well, I mean the judgment of unconstitutionality would be vacated?

Amy Juviler:

If we talk about the second face, yes that is true, except for the fact that it is not the presumption.

First of all the presumption was deemed necessary by the legislature.

It may seem petty at the stage when we are in this high court to discuss the minute service that it performs of clarification and uniformity, but the legislature did deem it necessary and did formally in its sovereign power enact this presumption.

Amy Juviler:

Therefore, for a court to enjoin it and declare it invalid, there has to be something unconstitutional and that very decision itself demands reversal.

Secondly, the presumption as the face in the statute itself may not be essential, but the idea of the presumption is essential.

The idea that the person can be forced to have the burden of proof, the burden of coming forward and in the presence of silence on that subject, he can be deemed to have terminated for the purpose of obtaining public assistance.

Those are the three functions of the presumption and those are not frivolous. So those are the two reasons why this appeal is here.

I understand, Your Honors, impatience with such an innocuous presumption and it is frankly been our patience from the beginning of the case.

We have been more patient maybe we would not be here.

I do want because very obviously valid presumption was declared invalid.

I do not want to miss my opportunity to explain to you why in very simple terms it is valid and that is that the relationship between the facts proven of voluntary termination and the early application for public assistance why they have an internal rationality and it is clear that income from employment is so important to us all; rich, middle class, poor that we do not forgo that major source of income without some idea of where our next source of income will come.

If after voluntarily giving up that one major source of income, we shortly thereafter appeal and apply for another major source of income, it is rational within the terms of the constitutional rule to assume that the reason that we gave up the one source of income was to make ourselves eligible for the second source of income as long as we have an opportunity to present evidence to the contrary that this was not the case.

Secondly, there is a tamper relationship between these two actions which has long been the basis of many rebuttable presumptions which are cited in our brief and in many future administrative schemes, it is important that this device is not the clouded by a decision such as that rendered by the court below.

Therefore, it is clear that this rebuttable presumption allows for the individualized determinations which this Court has so long favored.

Irrebuttable presumptions have been criticized just because they do not provide that kind of individualized determinations and it is surprising to be found here, having to defend under the due process clause, the very individualized determinations which have so long been held up as an example.

The appellees also claim that the presumption is invalid under the equal protection clause.

While the court below did not reach that question, analysis under the equal protection clause only makes more cogent the validity of this presumption.

First of all the equal protection standard is the same standard as the due process standard of rationality.

Secondly, if we look at the classifications in the statute, we see how reasonable the statute is.

The distinctions are between people who quit their jobs and people who do not quit their jobs, very closely related to the purpose of the statute, which is to deter people from leaving their job without the means of subsistence in the near future, to encourage them to provide for themselves in the near future and to limit the finite resources of the state to people most in need.

And the second classification under the statute is the difference between people who recently quit their employment and became eligible for public assistance and those who not so recently quit their job to become eligible.

Both of those are not attackable as classifications, which could in any conceivable sense violate the equal protection clause.

I do want to point that the procedures for dealing with the presumptions are also at issue here in a limited sense.

The Mobile Turnipseed rule, which is the rule of rationality, which we have discussed, is a two-fold rule.

One, it requires that a presumption have a rational relationship between the facts proven and the facts presumed and the second part of that rule, is that there must be an opportunity to rebut.

Well, the Court below did not find that there was not enough opportunity to rebut.

There were some footnotes which made some suggestions that we feel were unjustified and furthermore to demonstrate the clear validity of this presumption, we did discuss the procedures for rebuttal in our brief and they were framed this question number two.

However, those — that question only relates to the statute and regulations on their face not as to the statute in regulation as applied which were issues of fact, debated in the court below and not available for decision on summary judgment.

In general, we should look at the context of these hearings that this is an administrative proceeding for an application for state created benefits and that the procedure before the Social services department is informal and the hearing regulations, the regulations regarding that informal procedure, make it clear that no finding of an eligibility can be rendered without a fair opportunity given to the applicant to rebut furthermore that decision is subject to supervisory review in all respects it meets the standards of Tot versus New York State Labor Department and those standards are stricter than are necessary in this case which is an application proceeding.

Furthermore, there is a fair hearing procedure in the state court which is regulated now and during the entire dependency of this suit by an order of Judge Motley of the Southern District Court and in case in which applicants all were members of the class protected, Nelson versus Sugarman.

Therefore, we regard this presumption as a clearly valid exercise of the legislature’s prerogative to establish evidentially rules and as such we request that the decision below be reversed in all respects, I would like to reserve my additional time for rebuttal.

Warren E. Burger:

Very well.

Mr. Norlander.

Gerald A. Norlander:

Mr. Chief Justice and may it please the Court.

The record shows that 21 needy persons were sanctioned due to the operation of the statutory presumption.

My adversary contends in her reply brief now that 20 out of those 21 persons did not actually terminate their employment and I will turn that question a little later, since my adversary does concede at page 5 of the reply brief that the presumption was properly applied in the case of plaintiff Beverly.

I shall turn first to the question of the rationality of the presumption used against him.

Warren E. Burger:

In your view Mr. Norlander, the legislature of the state to constitutionally provide no one would be eligible for any benefits of any kind for 75 days?

Gerald A. Norlander:

That question, Your Honor, I believe would raise a serious problem under the Equal Protection Clause.

I think it would be a close question.

I would —

William H. Rehnquist:

Why would it raise any problem at all on the Equal Protection Clause?

Gerald A. Norlander:

Well, Your Honor, we are dealing here with the benefit that has impact of being — it is the last resort for a person who is destitute.

Now, whether the creation of a class of persons that is totally destitute, and the rejection of their request for assistance would create a class of persons with no legitimate means of survival, is a fact question that would have to arise under the statute, under such a statute. I think that is probably what would happen if such a statute were written in New York.

Warren E. Burger:

What did you say about a state’s action in providing for no Welfare or whatever?

Gerald A. Norlander:

Well, as–

Warren E. Burger:

No Welfare program and rejecting all matching funds of the Federal Government and saying in this state, we are not going to have any program.

Gerald A. Norlander:

This Court has never held that Welfare is a constitutionally required benefit, but on the other hand, the Court has never held at one state offers a benefit, it may have arbitrarily withdraw or deny that benefit.

William H. Rehnquist:

Well, supposing taking the Chief Justice’s question, it is not any withdrawing, if it is simply saying 70 per 75 days after you voluntarily quit your work, you are not eligible for work, for Welfare.

I cannot imagine that would violate Equal Protection Clause?

Gerald A. Norlander:

Well, I do not see what rational purpose of that would advance.

I think it is a close question.

The rational basis test would obviously apply to the situation.

I think it is that one would probably, one might even concede that it would be might be rational on its face.

It might have — perhaps the legislature could imagine a person who wanted to be on Welfare, would be encouraged to save his money for 75 days, so he can survive before that time and then he could receive the benefits and the legislature might conceive that that would rationally be advanced and encouraged by such a rule, but in operation, I am afraid that under such a statute, I think experience at least in the New York State would show that such persons who would be rejected, would be left, but virtually no legitimate means of survival.

William H. Rehnquist:

Well, but does the constitution prevent that result?

Gerald A. Norlander:

Well, what I am saying is that a class of persons would be informed as a result of the operation on that statute and it is rather hypothetical at this point.

I do not know whether that class would exist.

It would depend upon the record in the case.

I doubt that the creation of such a class of persons would rationally advance either the direct purposes of New York Social Services Law or the purposes of that statute.

William H. Rehnquist:

Well, but it is up to the New York Legislature to decide what would advance and what will not advance the purposes of the statute, is it not?

Gerald A. Norlander:

Well, I would say that in operation, the question would probably boil down to a question as to whether such as classification as applied, would violate the Equal Protection Clause.

It might be valid on its face, but I do not see that that question is before the Court.

Gerald A. Norlander:

Most of my adversary’s arguments tend to relate to the justification of the first sentence of the statute and we contend that the validity of the presumption is not measured by the validity of the substantive rule.

The question before the Court is really whether the state has adopted a fair or a rational means of determining who is to be sanctioned and who is not to be sanctioned, who shall receive assistance and who shall be sanction and who shall have 75 days where the benefit is forfeited.

Potter Stewart:

Well, it is supposed to be eligible for Home Relief and it not is not a matter of the sanction?

Gerald A. Norlander:

I think the record is quiet clear in this respect, Mr. Justice Stewart that at a very practical level, we are not dealing with the label of the sanction, but we are dealing with —

Potter Stewart:

Eligibility?

Gerald A. Norlander:

No.

I think that the record shows that in the case of Milne, the record at appendix page 29, Westbrook at page 242, Brownly at 304, Reed at 291, all of these cases, they were sanctioned and the workers I believe, by the use of that, common use of that word realize that they were in the business of punishing these persons for doing something that they had done wrong.

Potter Stewart:

As I understand your sisters on the other side, they conceive the maladministration of this Law?

Gerald A. Norlander:

Well, I would point out to the Court —

Byron R. White:

It is like the 20 out of the 21 plaintiffs?

Gerald A. Norlander:

Well, we do not concede that and in fact they have taken a reversal possession in their papers before the Court on that question.

Let me point out that, in the main brief, my adversary says that Milne at page 10, “was denied assistance by the Westchester County Department of Social Services on the basis of New York Social Services on 13111 on November 16,” the day he applied and in the jurisdictional statement at page 9 virtually the same statements is made by my adversary.

Thurgood Marshall:

Temporary would be maladministration to this case (Inaudible).

Gerald A. Norlander:

Mr. Justice Marshall, I believe that the maladministration of the —

Thurgood Marshall:

As I was saying before was the knocking down of the statutory being unconstitutional?

Gerald A. Norlander:

Well, one of the questions presented by my adversary in jurisdictional statement is whether plaintiffs had a share opportunity to rebut it.

We contend that the record shows not maladministration, but the lack of a fair opportunity to rebut the presumption.

The particular vice of an arbitrary presumption is that innocent persons who no one applying commonsense and experience to the facts to their case would ever sanction or impose liability upon them.

Thurgood Marshall:

As the people you represent, they quit their job or either one of them for this is why I see the difference and you do not expect and a lot of that people come to him and says, here is the money, they have to go and ask for it, do they not?

Gerald A. Norlander:

That is right!

Thurgood Marshall:

And do not they have to “qualify?”

Gerald A. Norlander:

Oh! Yes.

Thurgood Marshall:

And if in administering the qualifications standards the officer does wrong, is that ground for knocking out the statute, yes or no?

Gerald A. Norlander:

Mr. —

Thurgood Marshall:

The answers no, is not it?

Gerald A. Norlander:

The answer is sometimes yes, if the statute as applied is applied in unconstitutional or arbitrary manner —

Thurgood Marshall:

(Inaudible)_ that out as applied, was it?

Gerald A. Norlander:

The District Court judgment that held at the statute was unconstitutional on its face, although, at —

Thurgood Marshall:

(Inaudible) before us?

Gerald A. Norlander:

Well, the question of the —

Thurgood Marshall:

The validity, the facial validity of the statute is what is before us?

Gerald A. Norlander:

That is before the Court, Your Honor.

Thurgood Marshall:

And what else?

Gerald A. Norlander:

And plaintiffs have urged all along through this case.

In their motion for summary judgment, it was explicitly mentioned that we moved to have the presumption declared unconstitutional both on its face and as applied.

The critical claim in the application of the presumption is that plaintiffs were denied the fair opportunity to rebut the presumption because they were denied an effective opportunity to have the hearing, which was delayed, and my adversary raises that question, specifically in question two of the jurisdictional statement, where she asks this court to determine whether plaintiffs were given a fair opportunity to rebut the presumption.

Lewis F. Powell, Jr.:

In your second point, the absence of a fair opportunity to rebut the presumption based on the facts of this case or is it a challenge to the procedure prescribed by regulations?

In other word, are we talking here about validity of a statute or a regulation or the maladministration of the statute with respect to these particular claimants?

Gerald A. Norlander:

Well, the facts and the records illustrate the problem, but, our contention is that the applicable regulations and laws are not really in dispute.

And, we have a situation where there is no law and regulation requiring the defendant to notify people even of the existence of the presumption nor, obviously are people advised how to rebut it, or what kind of evidence rebuts it and in the hearings, the only hearings that they are offered by regulation, by statute are need not to be decided again by regulation, until up to 90 days.

Warren E. Burger:

How does the burden to establish eligibility differ from the burden to rebut the presumption?

Gerald A. Norlander:

I think the record is quite clear in the Beverly case.

Obviously, every applicant has the burden of coming forward with some information.

He fills out the application form.

He has the obligation to answer any question that is asked about that.

He has the obligation to produce verifications.

Warren E. Burger:

And it is one of the things he must show that he did not voluntarily leave his job?

Gerald A. Norlander:

Well obviously, he will be asked why he left his employment.

If he says, I left in order to be qualify for public assistance, I assume there would be no need for the presumption.

On the other hand, it is quite clear from the record of the Beverly case that the mere fact of the volunteer — of recent employment termination was given sufficient prohibitive weight to carry the presumed fact and that is why we are here today.

It is not because plaintiffs are being asked about why they quit work.

In fact, the post judgment instructions issued by the defendant, they appear at the very last page of my brief, on page 1 (c) actually, near the bottom of the page, merely the implementing instructions, now enforced as I understand it, directly to case worker that they are not to deny assistance unless you find “from all available evidence as a fact that the applicant or a recipient has quit his or her employment for the purposes of qualifying for public assistance.”

William H. Rehnquist:

Was that issued pursuant to the mandate or order of the court in this case?

Gerald A. Norlander:

Yes, Your Honor.

In the framing of the instructions after the judgment, there was a colloquy in the District Court and the District Judge Wyatt, indicated that that was the court meant when it issued the injunction that from now on, if there is to be a sanction imposed, it should be based upon the commonsense and experience of the case worker and it should not use this rule that allows them to issue a notice you quit your job, come back and —

William H. Rehnquist:

So this is the Court saying the constitution requires it, rather than the choice of the Department of Social Service?

Gerald A. Norlander:

No, the letter was drafted by the Department of Social Services.

The Court merely enjoined the presumption.

It did not issue any directive to the agency to draft this letter.

William H. Rehnquist:

But, the court has no business telling the Department of Social Services anything, other than it be mandated by the constitution?

Gerald A. Norlander:

The judgment below merely says that the presumption may not be enforced.

Byron R. White:

I take it under New York law if there is a hearing at sometime, maybe 90 days, maybe whatever it is, if the applicant win, I take it he does to get the back pay, so to speak, back to the time when he should have —

Gerald A. Norlander:

That is quite right.

Byron R. White:

Under the state law.

Gerald A. Norlander:

That is right.

What we are talking about here is that, we are not talking merely about $ 94.00 a month which is the basic grant post shelter for the individuals who appeared in the case because, obviously if there is mistake in the denial as the record shows, the fair hearing process corrected the number of those.

Quite effectively, except that we are not just talking about $ 94.00, we are talking about what the use of that means to the plaintiffs and —

Byron R. White:

I understand.

I just asked whether that they did get back pay or not?

Gerald A. Norlander:

Yes.

Byron R. White:

And they do?

Gerald A. Norlander:

Yes, yes.

Plaintiffs contend and contrary to what my adversary contends that the rational connection test announced by this Court by Mobile versus Turnipseed does require affirmance of the judgment below.

The Court said in Mobile that there must be a rational connection between the given facts and the fact presumed.

And the Court consistently has relied upon commonsense and common experience to determine whether a statutory presumption satisfied the requirements to due process and irrational connection has been found lacking where it cannot be said that the presumed fact more likely than not follows from the given facts.

The question thus framed for this case, we believe, is whether it is more likely than not that plaintiffs terminated their employment, not for other reasons, but for the purpose of qualifying for public assistance.

We contend that commonsense and general experience teaches that people ordinarily did not terminate their employment in order to qualify for welfare benefits, that rather for in order to resolve ordinary on the job conflicts, health problems, transportation problems, any number of other problems that a person would leave his employment for.

The defendant himself recognizes these ordinary reasons and rules in the regulations and rules that he has promulgated in which he tacitly concedes that people who quit work, duty owners, conflicts with their supervisors, strikes, discrimination, people who leave in expectation of finding another job, but do not find it, he concedes that those are not persons who do that and not properly subject to the sanction.

We contend that those reasons demonstrate the irrationality of the presumption.

Thurgood Marshall:

(Inaudible) the man applied for Home Relief and the worker says did she quits her job within the last 75 days, and he said yes, he says why?

Is he not obliged to say why?

Gerald A. Norlander:

Yes, he is.

Thurgood Marshall:

Is he not obliged to give in great detail, why?

Gerald A. Norlander:

Certainly.

Thurgood Marshall:

And the difference with that presumption is what?

Gerald A. Norlander:

The presumption allows the worker to really cease the inquiry at the time when it is found that a person recently terminated employment.

The fact that recent employment termination is given sufficient weight to our presumption of the given of the presumed fact and as, I think the record demonstrates the accuracy of making these subjective determinations by welfare case workers is less than satisfactory and it is the, the element of error is very, very high in this case.

I would point out that if one would review the notices given to most of the plaintiffs we could see that the 75-day period was generally calculated as well as the most people calculate periods of time, but the 20 out 21 instances the defendant concedes the subjective purpose was erroneously determined.

Byron R. White:

If an applicant were asked whether he quit work to receive relief and the applicant answered no, that is all he was doing, and he did not offer any other reason, and there was no other inquiry would the presumption serve to reject his claim?

Gerald A. Norlander:

I do not know that the presumption would be needed to be able to reject that claim.

Gerald A. Norlander:

If a person refuses —

Byron R. White:

Well, he just says, he says no, I did not quit at work to get a relief.

Gerald A. Norlander:

My adversary did say in oral argument below that presumption is necessary because we do not have to take a person’s say so and I suppose that the presumption operates to provide, the given presumed fact merely upon the fact that the person voluntary terminated and the case worker is free to totally disregard the denial under the presumption.

My adversary contends in her main brief at page 19 that plaintiffs Milne, Lee (ph), Strider (ph) and Beverly (ph) engaged in unusual or suspicious behavior when they terminated their employment and requested assistance thereafter.

I would also contend that what my adversary is going to use the illustrations Milne, Lee, Strider and Beverly in support of rationality that the presumption she tacitly concedes that they voluntarily quit and presumption should apply to them.

Warren E. Burger:

Do any of these facts that you have been talking about have anything to do with the declaration that statute is unconstitutional on it is face?

Gerald A. Norlander:

The facts merely illustrate I think, Your Honor, with respect to the facial issue, they merely illustrate the irrationally of presumption.

It is not and you are quite right, the facts with respect to the facial claim are illustrations of what happens.

Illustrations of the common reasons why people will leave the job and how they may not be able to find a new job, how their claim for un-employment insurance benefits maybe erroneously denied.

The facts show that the persons with health problems very often terminate employment and wind up applying for a Home Relief.

And in fact the study showed that is number one reason why.

In evaluating the rationality of the presumption, however, the Court has always looked to the facts in the record and the Court has looked to the facts in the case and in the history of the similar presumptions and the Court has looked to legislative records and to other sources of information to ascertain whether common experience and commonsense, present day experience support the presumption.

So, in that limited sense the facts in the record are relevant to the 2.1 in our brief.

The record does show in fact that most plaintiffs first saw other work.

In fact, Beverly found the job as janitor for a week.

Plaintiff Milne had a record of 17 years of continuous employment and this illustrates that the presumption was neither easy to rebut nor rational.

Not only is it contrary to commonsense that people would leave their jobs in order to qualify for welfare benefits, but looking at the nature of the Home Relief program in New York in its totality, there is simply nothing in that program that would cause us to depart from the commonsense approach to the presumption.

The entire Home Relief program is based upon the concept of less eligibility and that means that generally speaking, the program will be less desirable than working for a living.

For instance as a precondition for receiving any benefits a person first register for any available work and even if there is unemployment in the local economy, he maybe assigned to perform full time work at a public works project or work relief program for no extra pay.

Also the Home Relief program has a stringent means test and the applicant must generally have depleted all of his savings, his assets.

He maybe disqualified for owning an automobile.

If he owns has equity in a home, he will have to assign it to the Department of Social Services.

All of these factors make it very undesirable for a person to give up personal possessions in order to qualify for public assistance.

Finally the benefits themselves which are rent allowance plus $94.00 a month or about $3.10 a day are simply not the sort of benefit that would cause a person to ordinary leave his employment for the purpose of qualifying for it.

Indeed, the benefits themselves are set at the scale to provide only for the bare necessities of life.

When one looks at the entire picture of the Home Relief program, the means test, the amount of benefits, the work rules and the other factors, that intangible factors perhaps the stigma, all of these factors when they are combined with the ordinary reasons for terminated employment merely re-affirm that what commonsense tells us, that people just would not to quit work in order to qualify for the benefit.

There is no evidence in the record to support the presumption and there is no evidence in legislative record to support it.

My adversary contends at page 10 of the reply brief that there is no evidence available on the behavior of plaintiff class.

Plaintiffs submit that common experience and general experience is to the contrary and that the available interpretable data actually show the best available information show that poor people and welfare recipients have the same kind of attitude towards work and welfare as other people.

This is what the President’s Commission on Income Maintenance Programs found in 1969 in it is report.

Gerald A. Norlander:

In the President’s Commission report they said with respect to the question of the work attitudes of poor people and I quote “our observation have convinced us that poor are not unlike the non poor.

Most to the poor want to work.

They want improve their potential and to be trained for better jobs.

Like most Americans, the poor would like to do more.”

Warren E. Burger:

How do does help you —

Gerald A. Norlander:

— and the likes.

Warren E. Burger:

When the term used by that commission is “most?”

If they are substantial number, who do otherwise, does not warrant the legislative presumption?

Gerald A. Norlander:

Well, that — my adversary contends that there is no evidence available with respect to that group and so the —

Warren E. Burger:

Accepting this as a evidence —

Gerald A. Norlander:

Well —

Warren E. Burger:

— which is not necessarily the case, accepting it as what someone thought about it, it does not support your position even as you read it to us?

Gerald A. Norlander:

Well, the position of the President’s Commission has been tested by a massive study in New Jersey in which the United States Office of the Economic Opportunity spent $8 million over a three-year period to test the precise question whether people would quit their jobs in order to qualify for welfare benefits.

Basically there are two ways to determine, I guess, whether people would quit work to qualify for benefits.

One would be to offer them a generous benefit without a work rule which is what that experiment did and the other way is to look at people who apply for welfare and find out why they are applying.

Alright, both ends are those — of those experiences we see that people have not quit work in order to qualify for welfare benefits and interviews of people who do a apply for welfare benefits and exhaustive studies for the reasons why people apply for welfare benefits all come up with commonsense reasons that people apply for welfare benefits because they could not find a new job, because they were not covered by unemployment.

The number one reason in New York is health reasons.

These kinds of reasons are quite independent of any desire or motive to actually qualify for the benefits.

Also the experience under the work programs have found that most of people who are asked to go out and work actually are complying with the rules and so we really submit that the available information when there is nothing to support the presumption and does confirm what common sense and common experience tell us that presumption is irrational.

Plaintiffs also contend that this presumption is an unfair rule to impose against the plaintiffs.

In Goldberg against Kelly, the Court stressed that fact finding procedures should be flexible and they should be geared to the capacities of the parties.

We have here a class of persons who are not highly educated and who are not high income persons, they are unlikely to be represented and they are unlikely to understand a sophisticated rule of procedure like presumption that was invoked against them.

That the defendant has shown absolutely no legitimate justification for the practical use of this presumption and in fact the defendants accepted if Deputy Commissioner swore in the Court below and I quote from page 452 of the appendix of the bottom page, the very last sentence, Executive Deputy, Mahler swore, “it also clear that determinations are based on of evidence and not an presumption or legal conclusions.”

And my adversary concedes at the top of page 18 of her reply brief that it would be possible to make the determination without the presumption.

The record shows that the presumption allows the exercise of our obituary power by case workers.

I do not think that any other conclusion can be reached to reviewing this record and the state concedes as much that the overwhelming majority of these instances where erroneous determination and adjectives are used that the presumption is repugnant, that used the presumption was repugnant of the statute, I assume she means the first sentence of the statute.

Potter Stewart:

Under the fairest and the most valid law regulation in the world you can have the maladministration by ignorant or abusive —

Gerald A. Norlander:

Well.

Potter Stewart:

Administrator, do you not?

Gerald A. Norlander:

I would not agree.

Gerald A. Norlander:

I believe my time is up.

Thank you very much.

Potter Stewart:

Let me ask you.

You can answer the question.

Gerald A. Norlander:

Your Honor, I do believe that the fundamental concept of the rebutted — of the rational connection test is that it prevents sweeping in of a broad class of persons and subjecting them to the liability imposed by the first — by the substantive rule and I think record demonstrates that.

Thank you.

Potter Stewart:

Mr. Gerald A. Norlander, let me ask you one more question.

In your brief at least, I think you made it again today that you say that while in terms this is a rebuttable presumption, impractical fact, it is irrebuttable presumption because by time the fair hearing is held the 75-day has passed.

Gerald A. Norlander:

Correct, Your Honor, and —

Potter Stewart:

Now if that is true and if we except the Wigmore Theory that an irrebuttable presumption is not a presumption at all, but merely a substantive rule of law, then are we not faced with my brother Rehnquist’s question of earlier in this argument with i.e. the substantive validity of a law that says that anybody who voluntarily terminates his employment shall be ineligible for Home Relief for 75 days, cannot rewrite up against that, if this is an rebuttable presumption?

Gerald A. Norlander:

I think not, Your Honor because if we have a situation quite unlike that in the case of Weinberger against Salfi decided in last term.

In that case it is true that the presumption there amounted to a substantive rule of law, but in this case the statute does not purport to do that.

The statute purports to make an individual finding of fraud.

Potter Stewart:

But you tell us in fact it is tantamount to any rebuttable —

Gerald A. Norlander:

We say it has that the same rice.

We say that it is, that however it falls under the rules of rebuttable presumption, we by analogy we argue —

Potter Stewart:

You want to have it both ways?

Gerald A. Norlander:

Yes.

Potter Stewart:

Okay.

Gerald A. Norlander:

Thank you.

Warren E. Burger:

Do you have anything further?

Amy Juviler:

Yes, I just have two things Mr. Chief Justice.

The first, is I want to point out to the Court the regulations that existed before the decision of the Court below which did make explicit the way the facts were found.

They appear in appendix, but they also appear more conveniently at our brief from pages 45 through 47 and those are regulations with regard to this specific statute and the general regulation for how a determination of eligibility is made appear as an appendix to our brief at pages 1(a) and following, particularly I want to draw the Court’s attention to the provisions of Section 3518 then 18 NYCRR, appearing at pages 4(a) and 5(a) which describes how determinations of eligibility are made and which make clear that there could be no determination of eligibility unless the agent found that the applicant did not produce a credible evidence to overcome the presumption and further more the agent is required to make investigation and to verify all conditions of eligibility.

With regard to this specific statute, the pre-existing regulations gave specific examples of kinds of reasons for leaving employment which would overcome the presumptions, such as illness, the payment of minimum wages and so forth and the regulation went on and said Local District of course should not consider this list as exhausting the possibilities under which a voluntary or provoked discharge is not subject to sanction, but should continue to exercise reasonable discretion considering such factors as the lapse of time between termination of employment and the application for assistance that means something less 75 days, if the difference between 60 days and 15 a substantial.

And also in attempt to resolve the differences with the employer which led to the termination, ability to verify reasons alleged for termination and so forth as reasons — as judgments as to whether or not the presumption has been overcome.

So the regulations were specific regarding the presumption and it was only after the decision of the court below that the determination had to made without regard to burden of proof.

I know that all of us have discussed this experimental data which is bit far afield exhaustively for the Court.

You have been very patient, but I want to a point out that the major error in all the experimental data is that they come up with the findings that most people would not quit their jobs and most people would not apply for public assistance and even if that is so when we have no reason to doubt it we are dealing here only with people who did quit their job and did apply for public assistance, and therefore, all of that material is irrelevant.

Thank you very much.

Lewis F. Powell, Jr.:

My I ask you a question?

Amy Juviler:

Sure.

Lewis F. Powell, Jr.:

Procedure of due process, appellee’s brief makes some broad categorical statements, I will read one to you, plaintiffs were not afforded a hearing of any kind at the local agency.

Another point plaintiffs were afforded any opportunity to rebut the statutory presumption at the time they applied for assistance.

Now, putting maladministration aside, describe for us what the procedure is?

Amy Juviler:

At the time — from initial application?

Lewis F. Powell, Jr.:

Yes, take an applicant who appears for the time, describe the procedure, what opportunity does he have?

Amy Juviler:

The applicant is interviewed and it is interview which is the primary and original source of information.

He discusses his general situation and it comes down to the situation that he is a Home Relief applicant.

He is not a caretaker for eligible shelter and he is not agent for blind and disabled, and they say, how have you been, this is specific on giving specific reference to 351 (a), how have you been maintaining yourself in the past and he said well, a week ago I had a job, let us talk about Joseph Beverly specifically because we do have live case.

Joseph Beverly said, four days ago, I quit my job working on a chicken farm and I moved down here to Geneva and they say to him well, why you quit a job and he says, it was not worth it for me to continue because rent is so expensive and I was evicted because I could not pay my rent, and therefore, I left my job, that is the specific statement.

Now, they then and specifically in Beverly case, which is our last case, they called the employer and indeed at the ultimate fair hearing which occurred only two weeks after this initial interview, the employer did testify and said, I continue, I still want to hire Joseph Beverly back, he was a fine worker.

And the hearing officer determined as his decision specifically state that he did not believe that Beverly quit his job because he could not find housing.

He believed he quit his job.

He made is finding a fact, an actual fact that he quit his job for the purpose of obtaining public assistance.

But with regard to somebody who might overcome the presumption, you might have the situation like this where the person comes in and says I quit my job because I am a legal stenographer and everyone told me that legal stenographer’s jobs are available all over the place and I had specific position that I had in mind and now two weeks later I find that the position is not available and it is not so easy to find a legal stenographer’s job.

That statement itself because of it is internal credibility might be sufficient whereas statement that Justice White posited earlier, no I did not quit my job for the purpose of obtaining public assistance might not be credible evidence sufficient to overcome the presumption, but —

Lewis F. Powell, Jr.:

Do any regulations prescribe the procedure at this hearing?

Amy Juviler:

Yes, there are two regulations assuming —

Lewis F. Powell, Jr.:

If you just tell me, what they are —

Amy Juviler:

Right.

Lewis F. Powell, Jr.:

— I can check them out?

Amy Juviler:

The regulations appear as an appendix to our main brief.

These are regulations which govern the application procedure and discuss the duties of the local agency to investigate.

They discuss the duties of the local agency to inform the recipient of ineligibility and only to make finding of a —

Lewis F. Powell, Jr.:

The regulation commence at 1(a) of —

Amy Juviler:

At 1(a), and let me particularly draw your attention to page 5(a).

This deals with the conditions prior to a finding of ineligibility.

Applications are denied not accepted for assistance when in the course of the application interview, the information given by applicant establishes without the need for further investigation that he is ineligible.

Ineligibility is determined in the course of or upon completion of investigation or if the applicant refuses to comply with any requirement essential to the determination of eligibility.

Amy Juviler:

Further more the finding, the finding that must be made within 30 days unless there is specific adjournment granted to the applicant to produce additional information and there is a specific duty at a page 3(a) 3515 for the applicant to produce the information and be informed of his duty to produce it.”

Specifically at 351.2 appearing in pages 2(a) and 3(a) he must produce evidence of his resources and the basic duty is at page 1(a), the responsibility for the furnishing information, “The social services official should provide applicants and recipients and others who may inquire with clear and detailed information, concerning programs of public assistance, eligibility requirements therefore, and methods of investigation and benefits available under such programs.

Lewis F. Powell, Jr.:

I have (Inaudible) any pamphlets or written information —

Amy Juviler:

Yes, Your Honor.

Lewis F. Powell, Jr.:

— describing the procedure to them?

Amy Juviler:

They do have.

Many different detailed pamphlets are available and those —

Lewis F. Powell, Jr.:

Under statute — one other question the three-judge court did not reach the procedure of due process issue, it is addressed by the both of you on the briefs —

Amy Juviler:

Yes, there —

Lewis F. Powell, Jr.:

If we should reach that point that we just thought that we should remanded the three-judge court or try decide it on this record?

Amy Juviler:

I believe that the Court can decide the question of the validity of the opportunity to rebut on the face of the statute, not only 130-10811, but face of the regulations and the statue in effect.

However, the Court might prefer to remand it for consideration in difference to the court below which specifically said it was reaching the question.

The reason after all I framed the questions and I will answer you in a more informal and direct way because of the footnote in the opinion below, I did not feel that we could present this case to the court without answering what we regarded as specific mis-statements about the procedures available.

And it was not in knowing thought with which we framed that question and presented it to the court because we thought the footnotes in the decision presented enough question as to procedures.

The particular footnote, I have reference to is where court said there is no opportunity to rebut before you get to the fair hearing and we think that is decidedly not the case and could not leave that unanswered.

In fairness to our opponents would not just stick in as a footnote ourselves and we decided to put it on —

Thurgood Marshall:

It has nothing to do with this case.

You are talking about Mr. Beverly a little while ago on the chicken farm, how much he was making?

Amy Juviler:

He was making 2.25 an hour, I think 40 hours a week, he was guaranteed 40 hour a week and he was making 2.25, not much.

Thank you very much.

Warren E. Burger:

The case is submitted.