New York Department of Social Services v. Dublino – Oral Argument – April 17, 1973

Media for New York Department of Social Services v. Dublino

Audio Transcription for Oral Argument – April 18, 1973 in New York Department of Social Services v. Dublino

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Warren E. Burger:

— 72-792 and 802 Mrs. Coon, I think you may begin whenever you’re ready.

Jean M. Coon:

Thank you.

Mr. Chief Justice and may it please the Court.

In directing argument on the merits in this case, this Court postponed the question of jurisdiction, that issue has been briefed by both appellants and I wish to comment only briefly on jurisdiction.

The complaint in the instant case attack New York’s work referrals statutes claiming that they conflict not only with the provisions of the Federal Social Security Act, but also that they violated both the Thirteenth and Fourteenth Amendments of the Constitution in the United States.

Those latter issues were extensively briefed and argued by all parties.

The District Court in its decision rejected the Thirteenth and Fourteenth Amendment claims, but did discuss them at length and did consider them substantial constitutional questions.

Even though it eventually found they’re not to be sustained on the law.

It is our understanding of the decisions of this Court that as long as the constitutional questions raised are substantial a statutory three-judge court is properly convene and consequently in appeal directly to this Court is also proper.

Even though the District Court ultimately rejects claim constitutional invalidity.

We might also observe that if this is not the case, then this Court should consider whether as held by the Second Circuit Hagans case cited in the appellants’ briefs.

There was substantial federal question at all present in the case, efficient to confer jurisdiction even upon a single district judge.

William H. Rehnquist:

Well, I presume Mrs. Coon that even if — if this Court were to determine if the constitutional question has been insubstantial under Bailey against Patterson, and the Phillips case, we would have authority to remand for hearing before a single district judge on your appeal, are you not?

Jean M. Coon:

Oh!

Yes, Your Honor.

That’s — that’s entirely — that’s entirely true, but we are also suggesting this Court the possibility that the Court may adopt the Hagans case rule in the Second Circuit that if the question is found not to be substantial, federal constitutional question at all that it’s a matter for the state courts and not for the federal courts to determine.

Our main argument is of course address to the merits of the state statutes here at issue.

Briefly, the statutes at the time of the commencement of the action provided that all social services recipients in the aid for dependent children and then the totally, also the totally state-funded home relief categories, must if employable register with the state department — or State Employment Service of the State Department of Labor report semi-monthly to that office for job referral and to pick up welfare checks and to accept employment when offered and further provided for public works project employment for persons not placed in private employment.

The work referral statute also provides a definition of those who would be considered unemployable.

The aged, the sick and disabled, children in school, vocational trainees and mothers whose presence was needed on the home for care for children or those mothers for whom daycare services were not available.

Subsequent to the commencement of this action, the referral statute was amendment to provide that the original definition of employability would apply only to the home relief recipients and that as to ADC recipients.

There employability would be determined under the federal work incentive program definitions except that the child care exemption was continued in the same language as that originally provided in the 1971 Enactment.

Furthermore, the 1972 Amendments specifically stated that prior to the time that a work instead of program registrant is actually enrolled in participating in the Federal WIN program but the work referral and check pickup provisions would continue to apply.

The statute here at issue was part of a general welfare reform program initiated by the Governor of the State of New York and a message to the legislature in March of 1971.

Briefly, the purpose of the legislation was stated to be — to see to it that we not only continue to meet the basic needs of those who cannot do for themselves, but that we also to encourage the young and able-bodied, temporarily in need of assistance to achieve the education and skills, the motivation and the determination that will make it possible for them to become increasingly self-sufficient independent citizens who can contribute to and share in the responsibility for their families and our society.

With the advent of the state’s work referral program, adopted as a part of the reform package.

The employable recipients of public assistance in HR and ADC categories were subject to job referral under either one of two programs.

The Federal WIN program applicable only to the ADC recipients provides for job or training referral of certain categories of recipients in a limited geographical area, 12 out of the States 58 welfare districts.

All employable HR recipients and employable ADC recipients not participating in WIN, our referable to employment under the state statute and also under the statute to public work’s employment, although the public work feature as to ADC recipient was never implemented because of HEW objections.

William J. Brennan, Jr.:

Well, in the districts where you have WIN, does state program operate also?

Jean M. Coon:

State program operates also, but all of the witnesses who testified in the depositions stated that a person who is eligible for the WIN program must first be referred to the WIN program.

And only if there is no position available for him there would he be referred under the state program.

William J. Brennan, Jr.:

Do they actually operate in the same buildings or something like that?

Jean M. Coon:

Well, they do actually operate both out of state employment service.

William J. Brennan, Jr.:

Both out of state employment?

Jean M. Coon:

Yes.

Potter Stewart:

And the limited number of so called slots in WIN is determined by budgetary considerations that so many slots are allocated to New York, is that the way it works?

Jean M. Coon:

Right.

So many slots are allocated to New York and it’s determined by both budgetary and by the contract determinations of the Secretary of Labor.

In other words, in annually they are initial new contracts entered into with the Secretary of Labor which provides for the number of persons who will be serviced under the WIN program and also provides for the federal funding.

William J. Brennan, Jr.:

So the budgetary considerations are federal budgetary?

Jean M. Coon:

They are federal budgetary considerations.

Potter Stewart:

And this determined in advance each year?

Jean M. Coon:

Well, it can be determined re-determined during the year.

And actually in 1972-1973 fiscal year, the contract was modified I think three times, each time to increase to amount of money which would be available and therefore the number of slots and number of persons to be serviced.

Potter Stewart:

And were there some 18,000 slots or?

Jean M. Coon:

Yes, in the 1971 and 1972.

Potter Stewart:

1971 and 1972.

Well, do the same personnel in some of these offices operate — administer both programs?

Jean M. Coon:

In some of the offices, yes.

There are few districts, I believe New York City and possibly I think Erie County possibly that have separate WIN offices specifically WIN offices, but for the most part, it’s operated out of the same office.

William J. Brennan, Jr.:

Which program makes the greater number of referrals?

Jean M. Coon:

Well, I think — I think in terms of the number of people who are serviced, I think the state program has handled more people.

Once again, it’s a question of —

William J. Brennan, Jr.:

Well, how about in the 12 districts — in the 12 districts where it have both?

Jean M. Coon:

I think that it’s — well in the 12 districts that we have most –once again it’s the state program that has generally handled more people simply because of the unavailability of positions in the WIN program.

As we said that if there were WIN positions open for this people, and they have the position to put them in.

William J. Brennan, Jr.:

But the WIN positions don’t different in different kind, do they from the state?

Jean M. Coon:

They may — they may be training positions as well as work position.

William J. Brennan, Jr.:

That is in the WIN?

Jean M. Coon:

In the WIN program, yes.

Under the WIN program, there is a training feature and they may be referred to training.

The training feature under the recent amendments to the WIN program and the Federal Social Security Act have been the — emphasized has been more a work program.

Prior to that, the WIN trainee could be in train for an average of one year.

William J. Brennan, Jr.:

What numbers are we talking about to say for the last six months period?

Jean M. Coon:

Well, I think here in the last six months on the basis of the record in this case we’re talking about in the first year, there were — at the same time that there were slightly over 17,000 persons in the WIN program.

There were 29,000 other public assistance recipients who were given work experience under this program either referred to jobs or in public works employment.

And an average of 15,000 persons were or 50,000 persons were reporting each month to the state employment service for manpower services for job and for job referral so that there were say an average of 50,000 persons each month.

The same persons over and over again in many cases, but these briefs were being referred and I think that in terms of the 29,000 people who did have some work placement that it is important to remember that during this time, New York State was also an economic depression.

New York was one of the — the last to have the increase unemployment and was also one of the last to get out of the increase unemployment of past years.

William J. Brennan, Jr.:

And I take it the same recipient might perhaps have been — worked under both programs?

Jean M. Coon:

No, it’s not likely.

It’s not likely that a person on the training or a referral under the WIN program would most likely still would — if they’re in the WIN program participating that even if they had a subsequently became unemployed, he would still being service to the WIN program.

So those people — those 29,000 replaced under the state program we’re not WIN participants.

William J. Brennan, Jr.:

These were additions to the WIN referral?

Jean M. Coon:

Yes.

Thurgood Marshall:

And that’s in areas where the WIN program doesn’t operate?

Jean M. Coon:

No, it’s in the areas where — both where the WIN program operates and where it does not.

Thurgood Marshall:

Well, aren’t there some areas where the WIN program is not operating?

Jean M. Coon:

Because there are some areas – geographically, the bulk of the state — the WIN program does not operate in terms of numbers of recipients, most of them are within the WIN area.

Thurgood Marshall:

And what happens to — what happens to the recipients in those areas where the WIN program is not in operation?

Jean M. Coon:

Under the statute, they would be referred under the state statute.

Under the present situation as on the decision which we are here appealing the order of the District Court, there is no work requirement for the ADC category under — on the present law.

William J. Brennan, Jr.:

Well, on the work referrals, apart from the training referrals you told us about the WIN program, are the criteria any different?

Jean M. Coon:

The criteria are somewhat different in terms of the methods by which they’re placed.

For example, in the WIN program there is requirement that they’ll be given physical examinations before placement.

We said this is not a significant question because if there is a question raise as to physical capacity, the state employment service returns the state referees to the Department of Social Services or determination of physical capacity.

So we say, this is not substantial, it may be a question of the time or a position in which the physical examination or physical consideration is taking care of.

Under the federal regulations, HEW regulations, the Local Social Services Department is required to provide child care services either for persons who were referred under the WIN program or for others for whom the state requires either worker or trainings so they come on to the same child care requirements that they are in the WIN program.

Potter Stewart:

The age bracket’s the same, 16 to 64?

Jean M. Coon:

Yes.

There are some people in training in the WIN program who are in their 60s.

Potter Stewart:

But under the work rules program in New York City —

Jean M. Coon:

Yes.

Potter Stewart:

— it’s 16 to 64 as I understand it, is it presumption of employability?

Jean M. Coon:

Yes.

William J. Brennan, Jr.:

I wonder when you have the same personnel administering both programs how the decision is made whether they’ll refer into one or the other refer?

Jean M. Coon:

Well, the initial referral to the WIN program is made by the local social services offices.

They’re determined to be referable there appropriate for WIN referral and then referred to the state employment service for WIN registration and participation.

Lewis F. Powell, Jr.:

(Inaudible) all the way, it must be made to the WIN program if a program of that kind is available?

Jean M. Coon:

Yes.

Lewis F. Powell, Jr.:

So it only comes onto the state program if there’s no WIN program available or no slot within the program available?

Jean M. Coon:

That’s true.

That’s precisely true.

Principally, we submit to the court, the state statutes and regulations here providing for work referral and penalizing social services recipients for refusal to accept employment are not in conflict to the Federal Social Security Act.

One of the basic purposes of the Federal Act is to develop capabilities of self-support.

The Federal Act as recognized from its initial inception, the objective of that self-support.

The New York rules we submit do no more than implement the intent of the Federal Act by providing for the referral of employable public assistance recipients to employment.

They add no new conditions of eligibility, not already contemplated by the Federal Act.

The primary contention of the appellees has been simply that the Federal Social Security Act was intended to preempt the entire field of welfare regulation and work requirements.

However, the Social Security Act —

Byron R. White:

Is there an additional section of — is there an additional section provided by the New York law over what the federal law would —

Jean M. Coon:

There is a 30 day suspension of eligibility if they refused to comply with the work referral provisions under the state law.

Byron R. White:

How about federal?

Jean M. Coon:

Under the federal law, it’s only so long — they can be suspended only so long as they do not or not willing to participate.

In other words —

Byron R. White:

Mrs. Coon, which is the more severe?

Jean M. Coon:

The appellees contend that it’s the state because it has the automatic collusion of 30 days.

In other words, if a person doesn’t like to comply under the WIN program and refuses to accept be the training or employment.

He then is entitled under the WIN program to a 60-day counseling period.

Jean M. Coon:

He doesn’t have to accept and he can’t be suspended during that 60 days.

Byron R. White:

But he could be under the state court?

Jean M. Coon:

Yes, there is no counseling period.

Byron R. White:

Now is that a — you don’t think that that’s a contract at all?

Jean M. Coon:

I don’t think that’s a statutory contract.

Byron R. White:

Once it is a — it certainly is a refusal of the pay benefits for a period of time which under the federal law would be required based on the WIN program?

Jean M. Coon:

Well —

Byron R. White:

Isn’t that right?

Jean M. Coon:

Yes, but even under — we’re — we submit to the court here.

What we’re doing we’re talking about different people.

That if they’re eligible for participation in WIN and if there’s a slot available for WIN, they are entitled to all the WIN procedures.

The question of the application of the procedures we think is more of question of the due process arguments under the Fourteenth Amendment which the appellees raised in the District Court and which they raised on another appeal to this Court which is pending — which is the jurisdictional statement is still pending.

Byron R. White:

But would you suggest that — that the State would be permitted on to have a pair — a parallel work program or work program parallel with WIN and for a person who couldn’t get into a WIN slot who refused to go along with the state referral program?

That person could permanently be deprived of all pay?

Jean M. Coon:

Oh!

No.

Byron R. White:

Why not?

Jean M. Coon:

No, I don’t think so.

Because I think that there is a —

Byron R. White:

That would be contrary to Federal Act?

Jean M. Coon:

They would contrary to Federal Act.

Byron R. White:

Well, how can you so —

Jean M. Coon:

Well, I think under this because the federal [Voice Overlap].

Byron R. White:

Deprive him for 60 days or 30 days?

Jean M. Coon:

Because I think the Federal Act itself has — particularly with the unemployed parent provision has particularly taken into consideration the fact that the state may provide — that they setup this provision that you’re —

Byron R. White:

You may be quite right that work referral program is such is inconsistent.

But what about your sanction, is that permitted by the federal?

That’s what I’m asking you.

Jean M. Coon:

No, I don’t think it is prohibited because for example under the –under the federal unemployed parent program, it provides for a discontinuance of assistance.

As I said during the period which a person refuses to comply all are willing and the Congress in enacting this took into consideration despite we said that it would be up to the States that there is leeway left with the States to determine how long this period would be.

Jean M. Coon:

But it could not be — it could certainly, cannot be forever.

William J. Brennan, Jr.:

Mrs. Coon, what do you understand as the basis upon which the three-judge court held that the WIN program was exclusive?

Jean M. Coon:

The three-judge court was contrary to legislative history.

The Federal Act without stating what legislative history they had mind and cited principally the decision of Woolfolk against Brown in the Federal District Court in Virginia.

We submit that the Woolfolk case is distinguishable from this.

In that particular case, the recipients involved lived in a WIN district.

They had not been specifically determined to be inappropriate for WIN referral.

The District Court in that case said that that you could not refer under state program, persons who are inappropriate for referral to WIN.

However, in that case, reading a language of the decision of District Court in that case, they said that determination as to who is appropriate for referral or inappropriate of referral based on the remoteness was he made on individual cases.

And they also said that which he interpreted that saying that, that it must apply only where — only in districts where there was a WIN program.

In other words, that in state districts were the welfare districts where there is no WIN program, the Woolfolk case does not even apply on its face.

And secondly, that to the extent that a state program parallels and refers to the WIN program and takes into consideration those people who have been determined to be inappropriate for referral to WIN although they can be referred under the state program under state jobs.

We submit that, to that extent the District Court in Woolfolk was incorrect in its interpretation of the statute — of the requirements of the statute, the supremacy situation.

Now, we point out to the Court that only in the Woolfolk case and those cases which cited the District Court in Woolfolk.

All of these cases arising before this Court affirm.

That was the only cases in which the court has ever held a state parallel work requirement to be invalid under the Supremacy Clause.

And there are some 20 or 21 States which have developed parallel state work requirements at the same time the federal system has been developing its work requirements under the Social Security Act.

All of these state programs have developed a parallel and along the same time as the — that the Federal Government was getting into the act of work requirements.

So that —

William J. Brennan, Jr.:

Now, incidentally I gather the three-judge court also from the hearing provided inadequate on due process grounds.

Jean M. Coon:

They found the hearing inadequate only as to HR recipients on the basis that there was no specific notification to them of the right of a hearing at the time of determination of employability.

William J. Brennan, Jr.:

Yes, and this, however was on the hearing requirements connection with the WIN program which they said was exclusive.

Jean M. Coon:

No, they said that there should be — there should be a – well, the state law required a hearing.

And the evidence in the case indicated that the state — under the state law a hearing as to employability would be granted and would be granted prior to the time that it could granted — could be granted without somebody saying I would comply and taking a risk of losing our assistance.

But the District Court found that there should be for due process, there should be notification of the right of this hearing at the time of the determination of employability and directed the State Department of Social Services to provide for such notification which has been done.

Potter Stewart:

I understand that’s not therefore an issue before us.

Jean M. Coon:

No, that’s not.

Potter Stewart:

The State has applied to that and has not appeal from it.

Jean M. Coon:

Right.

William H. Rehnquist:

And no statute was stuck down or any part of any statute struck down in that adjudication.

Jean M. Coon:

No.

They simply found that the additional hearing requirement, there wasn’t additional hearing requirement which — which we should comply.

We submit that the test on supremacy start with the question of whether or not Congress in enacting the Federal Law has specifically stated that it’s preempting a field that it’s intended to be — that this federal statute intends to preempt the field.

There is no such specific provision in that statute.

The federal test say that in order to be determined, to be invalid, the state statute must stand as an obstacle to the accomplishment of the federal statutory purposes.

Here, we say that the two programs work parallel and complementary to each other that the state statute regulation never stands as an obstacle to the accomplishment of the federal objective which in the end-result is employment, that a state regulation must give way only where both the federal and state regulations cannot be enforced without impairing super — federal superintendence to the field.

Here, we say once again that the two statutes worked together, that the two systems of referral of employment work together and that the objective of self-sufficiency is aimed at similar objectives.

Warren E. Burger:

You’ll have about seven minutes remaining in the morning Mrs. Coon.

Jean M. Coon:

Yes.