Wyman v. Rothstein – Oral Argument – April 27, 1970 (Part 1)

Media for Wyman v. Rothstein

Audio Transcription for Oral Argument – April 28, 1970 (Part 2) in Wyman v. Rothstein


Warren E. Burger:

Number 896, Wyman against Rothstein.

Mr. Weinberg, you may proceed whenever you’re ready.

Philip Weinberg:

Thank you, Your Honor.

May it please the Court.

This appeal raises the question whether when a time when urban problems are recognized by virtually every thoughtful person in every social commentator examining American life to be of the most serious proportions.

The State of New York made out employee; it’s concededly limited resources in the field of social welfare in such a way as to address itself to these problems with slightly greater emphasis.

Now, 131-a of the Social Services Law of New York which is the statute of this case is all about provides levels of welfare allowances for welfare recipients in the State of New York.

It was enacted by the 1969 legislature and as I’m sure the Court knows it was the same statute that was involved in Rosado against Wyman which this Court decided in April 6.

Section 131-a establishes levels at one rate for welfare recipients within New York City and it is slightly lower rate approximately $5.00 a person for welfare recipients living outside New York City.

It then goes on to give the appellant, Commissioner Wyman, the State Commissioner of Social Services, discretion under an Amendment which was passed prior to the effective date of 131-a, which was July 1, 1969, discretion to increase the payments in any county upon the request of that county or indeed without the request of that county if the facts warrant and prior to the effective date of the statute.

Commissioner Wyman did indeed exercise that discretion and he have the differential between the New York City Welfare Payments and the Welfare Payments in the suburban counties including Nassau and Westchester counties which are adjacent to New York, essentially suburban counties and which the two counties in which the plaintiff here reside.

It has to be presumed as this Court has stated on many occasions that the state legislature acted with that knowledge of local conditions and indeed the assemblymen and state senators who passed this section of the Social Services Law are elected from very small districts.

They’re about as close to their local constituencies as any elected representative can be.

Their district is so much smaller and they represent less people than a congressman, and they have to be presumed to be aware of local conditions.

Indeed, it’s noteworthy that the assemblyman from Nassau and Westchester counties predominantly voted for this bill.

Now, where —

Warren E. Burger:

Now, you’re speaking now of the Bill which established a differential to recognize the higher cost of living in New York City?

Philip Weinberg:

Yes, sir.

Yes, sir, which differential was I have indicated halved by the administrative action of the appellant Commissioner Wyman before the Bill took effect.

Potter Stewart:

Halved, H-A-L-V-E-D?

Philip Weinberg:

Yes, sir.

Potter Stewart:


Byron R. White:

What’s about (Inaudible)?

Philip Weinberg:

The 1970 legislature reenacted Section 131-a with increase levels but they maintained the differential so that the case isn’t moot.

The differential still exists except that as a result of the very sweeping preliminary injunctions issued by the three-judge District Court in this case the state is now paying the identical payment to welfare recipients in the counties involved in this case.

But that’s only because of the injunction.

But the 1970 legislation, a copy of which is annexed to our reply brief which was then superseded by a slightly different statute copies of which we mailed to the Court last week when it was enacted still maintains the differentials, only that the figures are slightly different their higher but the differential still exists except in so far as the preliminary injunction has eliminated it for the purposes of this case.

Potter Stewart:

Now, the differentials are between New York City on the one hand and all the rest of the state on the other?

Philip Weinberg:

Yes, sir.

Potter Stewart:

Is that right?

Philip Weinberg:

Yes, sir.

Potter Stewart:

And all the rest of the state is now treated equally by statute subject only as I understand it to the discretion to increase it up to a maximum of what New York City pays.

Philip Weinberg:

That’s right, Your Honor.

Except to the —

Potter Stewart:

It’s used to be — it’s used to be three areas in New York —

Philip Weinberg:

That’s right.

Potter Stewart:

— as I understand it before this present legislation.

Philip Weinberg:

That’s right Your Honor.

Potter Stewart:

It was done by — and it was done by regulation.

Philip Weinberg:


Potter Stewart:

Now, there are two under the statute —

Philip Weinberg:

The statute —

Potter Stewart:

— New York City and the rest of the state.

Those two —

Philip Weinberg:

Except — except for the commissioner’s discretion which he has exercised in eliminating the differential —

Potter Stewart:

That I understand.

Philip Weinberg:

— and the commissioner by regulation in 1969 returned in effect the three districts or really four districts because New York City gets the statutory rate.

Potter Stewart:


Philip Weinberg:

The suburban counties which will previously lump in with New York City.

Now, get him out slightly lower than New York City and the two other upstate districts are administratively established that is slightly lower rate than the suburban counties ringing New York City and also couple of upstate counties which were traditionally thrown in with these suburban counties.

So that now in effect they were four rates subject only to the injunctions which have thrown the suburban counties in with New York City.

Potter Stewart:

So —

Warren E. Burger:

But at least does the questions still remain as it was before whether this is a reasonable classification on the part of the commissioner?

Philip Weinberg:

That’s precisely the question Mr. Chief Justice, on whether —

Warren E. Burger:

You change because you have fewer possible cases.

But the fundamental question hasn’t change in your view?

Philip Weinberg:

No, sir.

Under the Equal Protection Clause is still a question of whether there’s any rational basis for the differential and as we shall show there’s a more than adequate basis for that differential for the reasons which were reduced before the three-judge court in which I’d like to expound on here.

It should be noted before we turn to that that these payments don’t include rent or fuel for heating and the record shows that the actual payments received by welfare recipients in New York City for rent which have paid over and above these statutory or administratively set allowances are considerably higher in the suburban counties than they are in New York City.

Indeed as the record show here, a — the average rent received by welfare family of four in New York City is $84.00 a month.

Philip Weinberg:

The plaintiffs here who are single women just one person, are getting a $105.00 and $108.00 a month, if my memory serves over a hundred many event and in Nassau county, the record indicates that the maximum permissible payment for family of four is a $155.00 or a $160.00 a month depending on whether it is an apartment or a private house.

But that almost double the average that’s received in New York City.

This is due to rent control and I suppose to the larger amount of apartments available in New York City and the general squeeze and housing in the suburban counties which have grown so rapidly over the past years.

But in any event, whatever the reasons when discussing the actual benefits or allowances received by welfare recipient of which shelter is obviously one of the basic components.

You’ve got to look not only at the welfare allowance which doesn’t include shelter but also at the cost of shelter which is also paid by the commissioner.

And since the cost of rental are so much less in New York City and averages also that in fact these plaintiffs and other similarly situated in Nassau and Westchester counties are actually receiving as much money or perhaps more as people in New York City.

Unfortunately, the record —

Potter Stewart:

Another shelter as well as the heat, fuel, oil or whatever heat they used?

Philip Weinberg:

Well, I’m lumping that in with shelter fuel for heating is paid separately but in many cases there’s no separate item for that.

For example, typically a welfare recipient lives in an apartment —

Potter Stewart:

Gets —

Philip Weinberg:

— where there is central heating in so that it wouldn’t come up or even if a welfare recipient rented a house they might well or an apartment in a house or something that they might will be central heating —

Potter Stewart:

But not necessarily because it is —

Philip Weinberg:

Not necessarily.

Potter Stewart:

It is shelter and heat isn’t dissipates effort.

Philip Weinberg:

Yes, sir.

But the heat is a — it’s he minimum item, it doesn’t exist in most cases.

In any event, while we unfortunately don’t have in the record full statistics on the total aggregate amount of rental money and fuel for heating paid in New York City vis-à-vis what’s paid in the suburban counties?

The record does indicate that the average rental for welfare recipients in New York City is so much lower than these plaintiffs in particular received or that the maximum permitted in Nassau County and Westchester is that the record indicates plainly that fall from being discriminated against are receiving less money when shelter is considered as a certainly it should be.

They’re coming out just as well as a person in New York City.

But over above that the claim here is a violation of the Equal Protection Clause and also of the Social Security Act and Regulations there under.

And the court below, we submit improperly and certainly improperly in the light of this Court’s opinion in Dandridge bypass completely the Social Security Act and Regulation claim and instead of veering away from the constitutional issue as courts are suppose to.

It in effect veered toward it and went out of its way to determine the constitutional question adversely to the state as it happens and we submit that reversal as required on that ground alone over above everything else.

But this statute has to be viewed whether we talked of equal protection or the statute in regulation in the context of a statutory scheme in New York State which traditionally treats New York City as sui generis and indeed New York City is a special case.

It’s — it’s the urban megalopolis par excellence.

It comprises half the people in New York State and indeed, more than half of the welfare recipients about three-quarters as the record states and the — throughout the statutes in New York, we see special treatment given New York City far and excess I’m sure of this special treatment given Chicago or Baltimore or Philadelphia in the statutes of those states.

Indeed, this Court itself in Salzburg against Maryland remarked quoting an earlier case Missouri against Lewis, a 19th century case that it would be permissible under the Equal Protection Clause for New York State to apply the civil code, the civil law in the New York City in common law of the rest of the state if it wanted to.

Now, that’s sounds like hyperbole but this Court said it and it quoted it Salzburg against Maryland which is a case from the 1950’s.

The fact is that New York City is different, it is unique, and the legislature has to be presumed to be aware of that.

The — our brief and balance specific examples, for example the Multiple Dwelling Law which prescribes all kinds of requirements for apartment houses, only applies to New York City.

Philip Weinberg:

There’s a Multiple Residence Law which is entirely different which applies to the apartment houses outside New York City.

As this Court knows well from the Baldwin case which is before it, the entire structure of the penal law is the code of criminal procedure is different in New York City and indeed this Court has before it the question of whether New York State can permissibly within the Equal Protection Clause give jury trials for misdemeanors outside the city and not give them in New York City.

Now, whatever the rights and wrongs are there.

It’s again illustrative of the fact that the New York legislature has traditionally treated New York City as a very, very different thing from the rest of the state.

Now, when we look at Section 131-a, we don’t see the enormous difference that we find in these areas where you talking about giving jury trials in one place and not somewhere else or having stringent requirements on multiple dwellings in New York City and not having them in the other counties of the state.

We’re talking here about a very slight $5.00 a person differential which the legislature which as I’ve said it has to be presumed to be aware of the specific local conditions, so fit to provide as a benefit to compensate for the higher social cause of urban living which the New York City welfare recipient has to endure.

The question here is this Court said is whether the grounds adopted by the legislature are wholly irrelevant to the states objective and the — unless the Court can say that they are also wholly irrelevant then it plainly has to reverse it appears.

Now lets look at the grounds, these grounds are specific and factual.

They’re not policy grounds and yet in Dandridge, this Court so fit to declare that the maximum family rule in Maryland which created a real difference, a sizeable difference in the amount of welfare benefits received by individuals depending on whether or not they were in a large family.

It held that that was a permissible exercise of Maryland’s legislative discretion based solely on Maryland’s policy grounds.

Now here we don’t have policy, we have actual — factual material.

For example, we have the rent control and the actual lower rents within the New York City which I’ve already alluded to.

In addition as the record shows and the studies on housing within New York City show because of rent control and because of the antiquity of much of the housing in areas where welfare recipients have large to live, there’s been an enormous deterioration in the quality of that housing and realistically, the legislature was entitled to find that this entails the purchase of items necessary to maintain this deteriorated housing which might not exist in suburban area.

In addition, you have the crime rate within New York City.

Now, the statistics again within the record and set forth in our brief show that the amount of crimes and the amount of violent crimes specifically are far higher within New York City per capita.

And once again, the legislature has to be presumed to be aware of these factors and it has to be presumed to be aware that the higher crime rate which unfortunately strikes people the hardest who live in the areas, getaway areas, and low income neighborhoods were welfare recipients for the most part of obliged to reside.

This necessitates taken a taxicab home at night.

It necessitates buying lots, replacing stolen goods, replacing stolen monies, replacing stolen welfare checks.

It’s true that New York City does permit stolen welfare checks to be replaced if they’re reported but certainly not every stolen welfare check is reported and stolen goods and monies undoubtedly are not reported in the majority of cases.

Window gates and bars and other devices that are necessitates by a high crime rate are simply effective life for New York City slum dweller.

And its no doubt debatable whether the legislature should give more money within its standard of need to compensate the New York City welfare recipient for these problems.

But once we concede that its debatable then the Equal Protection Clause doesn’t apply and its simply becomes a matter of what the three-judge court below did in our judgment namely substituting its views on policy for the legislature’s discretion in coping with the realistic problem before it.

What this Court characterized in Dandridge as the, I’m paraphrasing the Court, but the extraordinarily difficult problem of apportioning or puzzling out to welfare recipients all of whom obviously need whatever the state can afford to give him.

Precisely how much this state can give this one and that one and here we repeat the differential was extremely slight compared to the family maximum which this Court sustained in Dandridge.

Another fact which the legislature — since it enacted this factor had to be aware of with the sales tax and New York City has a 6% sales tax, 3% state, and additional 3% imposed by the city.

In Nassau, the 3% state sales tax applies to statewide of course but in Nassau County, the county tax is only 2%.

In Westchester County except for one city, the City of Yonkers, there’s no county tax at all.

These means and if — in the other suburban counties, there’s no county tax or city tax at all.

These means that on items other than food which welfare recipient has to buy clothing, household appliances, and the like to the extent that this additional 3% vis-à-vis Westchester County resident or 1% vis-à-vis Nassau County residents sales tax applies that in it of itself makes a difference.

I refer the Court in our brief to the fact that the internal revenue service in its tax forms for the year 1969.

Philip Weinberg:

So fit to recognize that for a family with an income between $3,000.00 and $4,000.00 a year which is the income of family of four on welfare in New York.

The sales tax allowable under the suggested permissible allowances for a sales tax deduction on income tax is $92.00 for New York City for that family of four at that income level and only $46.00 in Westchester County.

Now, right there you’ve got a $4.00 a month differential.

Now, we are not suggesting that this is necessarily binding on a legislature or that they have to abide by that.

But once we can see that it is debatable point then we’ve left the Equal Protection Clause far behind and we’re in the area of legislative discretion.

Potter Stewart:

For now let’s assume Mr. Weinberg that you’re quite right and that base on the factors that you’ve been discussing and others.

We have left the Equal Protection Clause far behind particularly in light of the — this Court’s recent decision in the Dandridge case.

We still — we’re not — that doesn’t get you out of the woods in this case, does it?

Philip Weinberg:

No, sir.

Because we have the statute in regulation we chose —

Potter Stewart:

Now, the statutory ground and you have the amicus brief filed here by the secretary of HEW, telling us that the statutory ground is a good ground.

Philip Weinberg:

But we do have that and I would like to get to that.

Potter Stewart:

I — I trust you are going to.

Philip Weinberg:

I certainly will.

It’s — it’s interesting to learn of an administrative policy when you pick up a brief that’s filed in this could.

We — weren’t aware of this administrative policy.

The letter sent by the Regional Commissioner of HEW, Mr. Collison to Commissioner Wyman back in November said that while there was a differential and they questioned that differential.

They said that to the extent that it could be demonstrated that courts were different between New York City and the other counties, that differential would be alright.

Now, Commissioner Wyman didn’t reply of the letter of regional commissioner because the pendency of this lawsuit.

The commissioner invited, Commissioner Wyman, to indicate what the factual basis where for the slight differential in favor of New York City welfare recipients.

And as I’ve said because of the pendency of this litigation, Commissioner Wyman didn’t reply and that’s where the matter lay until last week when I got the Government’s brief and I was interested to learn that they have a consistent administrative policy in this area.

This was fascinating because not only has New York City paid a different amount over the years long before the adoption of this section.

They had as we’ve been indicated three separate areas within the state.

But as I learned in the Dandridge case the City of Baltimore pays $10.00 a month more than the rest of Maryland.

I should say the State of Maryland pays people in Baltimore $10.00 a month more and as we discovered in our research and set forth in our brief.

The State of California has a whole crazy quilt of amounts paid it varies with the contribution of the county wants to make and their enormous differences.

And of course, once we look beyond state boarders and we start looking to what happens between one state another state.

Then the difference has become enormous and without even discussing the differences in wealth they are paid between the states like New York and the southern states, right on the northeastern states where the standard of living is about the same on the states that you pass through taking the train from New York to Washington.

You’ll see that the level of payments in Wilmington, Delaware with the standard of living can’t be very different from New York City or Philadelphia.

The welfare payment is about half what it is in New York City and Philadelphia it’s a lot lower than this in New York City.

Philip Weinberg:

So, since the federal government and specifically the Department of Health Education and Welfare is the agency that’s suppose to administer all these and try to make assemblance of order.

It appears to us that the straining at gnats when they get all excited about $5.00 a month between New York City and the suburbs around it and they’re perfectly willing to let all the rest to just go by.

Hugo L. Black:

Oh, you don’t understand the HEW, the Health Education and Welfare, same with this equal protection to have different rates, in all of the thousand of counties in the United States.

Philip Weinberg:

Well HEW, Mr. Justice Black, resisted the urged to talk about equal protection and they confined themselves to the statute and the regulation.

Although, they said quite astonishingly I think that the — that the regulation went further than the Equal Protection Clause and that struck me as odd and I think it will strike anyone as odd who looks at it.

The regulation simply says there has to be a statewide standard of need which New York concededly has that’s admitted by HEW.

Hugo L. Black:

They’re not arguing, are they?

We ought to know as a matter of personal knowledge that its man can live just as cheap in one part of United States and one part in the state as they can in any other?

They’re not claiming evidence?

Philip Weinberg:

Mr. Justice Black, they appear to be saying that the use of the words objective and equitable in their regulation require the state to pay the precise mathematical same figure in every part of the state.

Unless they can come forward and show that there’s a demonstrable difference.

Now, we maintain that we’re doing that.

We’re showing that there’s a demonstrable difference but the —

Hugo L. Black:

Every part of every state you said, what about all the states?

Philip Weinberg:

Well, that’s precisely why I say they are straining it gnats here.

Hugo L. Black:

They defend it different between the cost of living in one state and another?

Philip Weinberg:

Well, I can’t speak for them Mr. Justice Black.

They don’t — they don’t say anything about that in their brief.

All they say is that they want New York State to pay the precise same dollar amount throughout the state.

Otherwise, they are violating the regulation which talks about an objective and equitable standard but —

Hugo L. Black:

All over the same?

Philip Weinberg:

Unless the — unless it can be demonstrated that there is an objective difference even that which there own Regional Commissioner Collison said, they appear to be backing away from because when you read their brief they seem to require a — a mathematical precision and the payment throughout the state.

William O. Douglas:

But the statute says the statewide standard, doesn’t it?

Philip Weinberg:

Yes, sir.

There is a statewide standard of need but that doesn’t mean that the — that the dollar amount paid throughout the state has to be identical.

William O. Douglas:

As for you apparently get in to an argument in HEW?

Philip Weinberg:

Yes, sir.

Regional — the regional commissioner conceded in this letter of November 10, 1969 which is appended to their brief and it’s in the appendix and it’s appended to the plaintiff’s brief as well.

They said in there that if there’s a demonstrable difference then we’re not violating that regulation or that statute.

And throughout the years we had three different standards varying between New York City and the suburban counties which used to be lumped together until 1969, then a batch up of counties and then another group of upstate counties.

Philip Weinberg:

Now, probably that was alright with HEW.

Maryland giving people in Baltimore $10.00 a month is alright with HEW.

The variation as between the states which have paid for half by federal money alright —

William O. Douglas:

I read the — I read the whole thing different perhaps I’m wrong.

There’s a statute that requires a standard, statewide standard and you can show in every case.

The existence of actual needs that will permit a variation from the standard because I don’t think there’s any thing inconsistent necessarily between —

Byron R. White:

Well, HEW doesn’t insist that the dollar amount paid that would be the same in every count.

Philip Weinberg:

Well, the regional commissioner didn’t insist it.

As I read their brief I’m a little unclear as to whether they’re —

Byron R. White:

I read it as indicated that there must be a statewide standard but as to what the need is but if you can show the satisfying need to touch you unless one kind and another.

There could be differences in money amounts paid.

Philip Weinberg:

Oh, I’d like to read the brief that way Mr. Justice White and if we can read it that way.

Then, I think with all due respect the New York is home free because we’ve shown that there is that demonstrable standard.

At least it’s debatable and once it’s debatable that regulation certainly can impose any greater requirements on New York and the Equal Protection Clause.

It uses words like objective and equitable and that can mean anything more than Equal Protection Clause means.

Byron R. White:

No, but if — I suppose HEW could say to you — well, if sounds like you got a statewide standard but somehow rather you pay different amounts and you haven’t got any evidence that there is difference in cost and there must be a difference in the standard.

Philip Weinberg:

That appears to be what they’re saying.

But when you look at the reasons for the slight differential in favor of New York City, we see that the legislature in fact have valid reasons.

It had the deterioration of housing, the higher crime rate, the higher sales tax, and one which was testified to by the commissioner which I didn’t get to yet.

And namely the fact that the best bulk, the overwhelming preponderance of welfare monies are paid under the AFDC Program.

And that means that most welfare recipients in New York as in other states are children and the — where the social cost of urban living hits home is to the child on AFDC living typically in New York City.

Unfortunately, in a tenement of and in areas remote from a park as our brief indicates there are huge areas in Bronx County particularly which has a high number of welfare recipients where there simply no folk around from miles.

This necessitates the parent taking the child on public transportation and bringing him to a park or to the zoos in museums and aquariums and other facilities, beaches which are available to the — in New York City, and which a part of urban living.

Now in the suburbs, we’re not about to suggest that life in the suburbs where an AFDC child is rosy but there’s more room around and the legislature had a right to find that a child on welfare in Nassau or Westchester County is a lot more right to have some kind of a vacant lot around than a child in tenement and hold them with the self Bronx.

And for this — and also the zoos and beaches and so on which existed in New York City are simply inaccessible in Nassau County.

So, this is another item which the legislature and its discretion had a right to consider.

We’re not saying that that every member of this Court are indeed any member of this Court has to necessarily agree with what the legislature said in everyone of these instances or any of these instances.

But there has to be an ambit or scope of legislative discretion and these are factual things here.

They’re not — they’re not policy things such as Maryland advanced successfully in the Dandridge case.

These are factual things which the legislature and the commissioner who has the expertise and the core of civil service people or staff who would administers this program have to be presumed to be aware of.

Philip Weinberg:

Now, the commissioner —

William O. Douglas:

Now, you’re back on the constitutional argument.

Philip Weinberg:

Oh, I think they meld or dovetail, Mr. Justice Douglas.

The standard the regulation is objective and equitable, and when one reads that together with the statute which speaks of the statewide standard of need.

I think we’re — we’re roughly in the same territories the Equal Protection Clause which says that there has to be rational standard for the legislature.

William O. Douglas:

Well, I don’t know if equal protection never was held to in event.

Furthermore, the fact that you’re roughly equivalent, it doesn’t mean that you’re there.

Philip Weinberg:

No, sir.

I agreed but we think that the where the legislature has the demonstrable standard.

The very language that the regional commissioner of HEW talked about that they’re both under the Equal Protection Clause and both under the test on the under regulation of objective and equitable.

This — their existence adequate ground from the differential, but we note that the three-judge court didn’t look at that way at all.

They bypassed the statutory and regulatory ground and they — as we’ve indicated they veered toward the constitutional ground.

It’s that right off the back, it would appear that the sweeping injunctions granted below have to be reversed.

But we submit that a remand for the purpose of considering the statutory and regulatory ground wouldn’t served any useful purpose here because the scope or the ambit of discretion within which the state legislature was allowed under that test seems to be about the same as the Government in effect says in its brief as under the Equal Protection Clause.

And indeed as their commissioner said that to the extent they are demonstrable differences the differential will be justified as indeed they’ve justified differentials in New York, Maryland, and California, and for awhile in other states over the years.

John M. Harlan II:

What does the Government mean by this question it present rather than New York’s state plan of public assistance, improperly favors residents of New York City over residents of other areas of the state?

Philip Weinberg:

They appear — they appear sir to be —

John M. Harlan II:


Philip Weinberg:

They appear to be saying sir that there were no objective standards under which the legislature pays a differential to people in New York City who are in welfare.

John M. Harlan II:

What do you mean by improperly favors?

Philip Weinberg:

Well, they’re suggesting that it’s discriminatory or that it’s —

John M. Harlan II:


Philip Weinberg:

— it’s invidious.

John M. Harlan II:

Over New York City residents than other parts of the state.

Why did they say it does?

Philip Weinberg:

I’m not sure I follow Your Honor that —

John M. Harlan II:

They say rather you knew the question presented one of this is the New York state plan improperly favors residents of New York City over residents of other sections of the state.

What’s the basis for that question presented?

Philip Weinberg:

The statute which says that there has to be statewide standard of need and the HEW regulation which says that the standard of need and the amounts paid have to be objective equitable throughout the state.

John M. Harlan II:

Well, in there it seems to me from what you say.

John M. Harlan II:

They’re claiming that it shouldn’t be just one raised.

The New York City and one raised with any other part of the state, is that right?

Philip Weinberg:

I think they’re saying that to the extent that we can demonstrate that there’s a valid reason to pay people in New York City more then we don’t violate the statute or the regulation, to the extent that we can’t show such a valid reason and we do violate the statute in there regulation.

But the —

Warren E. Burger:

You claim that on this record, you have shown that there’s a valid basis for a difference in the cost of living in the two places?

Philip Weinberg:

Exactly, sir.

And over and above that, we point out that the injunctions granted below were not granted on the statutory ground with the three-judge court so fit to ignore.

They were granted on the constitutional ground and the way they phrase their border than what this Court permits and permitted under the Rosado case for example, in issuing an injunction where the only ground statutory and not constitutional.

The most this Court did in Rosado where there was a violation found of a — of an Act of Congress was to remand the case back to the District Court to give New York State the choice of letting federal funds go or of redrafting the statute.

And we submit that the three-judge court below didn’t do anything like that for the good reason or at least for the reason that they didn’t take the statutory route.

They took the constitutional route and for this reason, I think this Court can pass on both the constitutional ground and the statutory ground and find that — as this Court said in Dandridge that there isn’t anything special about welfare statutes which requires a more rigorous constitutional standards to be employed as in cases involving racial discrimination or the right to vote or the right of freedom of speech.

The Dandridge certainly laid that argument to rest and that’s the keystone of the whole argument adopted by the three-judge court and I think once we remove that keystone, there’s not much left to support those injunctions.

The statute and regulation, I never even consider so at the very least of remand is required but we go further than that and we say that the complaint should be simply dismissed.

And that summary judgment should be granted and in our favor because the requisite demonstrable differences have been shown to exist.

And whether we’re talking about equal protection or the statute or the regulation, New York State has demonstrated that it had a demonstrable reason a rational basis for the determination that legislature made.

And it — and I should add the determination that the commissioner made in which he reduced the size of the disparity to approximately half.

Potter Stewart:

We’re dealing here with the preliminary injunction are we?

Philip Weinberg:

Yes, sir.

We are.

Potter Stewart:

And if the — it should be — if we should think you’re mistaken and that the preliminary injunction should remain in the effect and that would be followed by a plenary hearing.

And the purpose of which would be decide that whether or not they ought to be a permanent injunction or no injunction at all, would that be true?

Philip Weinberg:

That’s correct of course.

But we submit that the facts are basically before this Court and this isn’t the kind of disputed issue effect which lends itself to a trial.

Although, if the Court orders a trial we’ll have one I suppose if the —

Potter Stewart:

How at all — how are these facts get in?

There’s an affidavit or deposition?

Philip Weinberg:

There was a deposition of the commissioner.

There was an affidavit of a one of the men on his staff and the rest of facts which I think the Court can take judicial notice of such as the existence of rent control, the higher crime rate, the sales tax and things of that nature.

The once that the Court can’t take judicial notice of such as the higher cost of living to the trial on AFDC in the City or testified to by Commissioner Wyman and set forth in the affidavit of Mr. Murphy, a member of Commissioner Wyman’s staff.

Hugo L. Black:

As you read it, has the injunction directed the New York not anymore to the residents of New York on the grounds that needed more expensive to live in New York than there’s another part of the state?

Philip Weinberg:

Well, it added — it said that Mr. Justice Black and I added the words, and I’m paraphrasing it, unless objective criteria can be demonstrated or something like that but nevertheless the injunctions in effect.

And while the injunction was issued by the three-judge court on a finding that these plaintiffs weren’t people on AFDC and therefore, our whole argument about children on AFDC didn’t apply to this disabled ladies who presumably don’t want to go to the park or the zoo and so on.

They nonetheless permitted intervention by people on AFDC.

So that now the injunction applies to everyone on welfare within those states.

Hugo L. Black:

Precisely what does the injunction order New York to do to which you object?

Philip Weinberg:

It orders New York to pay the same amount of money to people in the suburban counties as to those in New York City —

Hugo L. Black:

All over the state?

Philip Weinberg:


In the suburban counties around New York City, Nassau, Westchester and the six other counties which the —

Hugo L. Black:

It names the counties.

Philip Weinberg:

Pardon me?

Hugo L. Black:

It names the counties.

Philip Weinberg:

Yes, it names the counties.

Unless we can show that objective criteria exists other than in a Court in accordance of objective criteria.

So —

Warren E. Burger:

Are you telling us in the whole frame of work.

You’re argument that — if you have that opportunity, you can’t show anymore objective evidence than the record has already made.

Philip Weinberg:

Well, if we have the opportunity.

We’ll try to Mr. Chief Justice, but we think that we’ve shown enough here to set aside the preliminary injunctions and to grant summary judgment in our favor.

I’d like to reserve the remaining time for rebuttal, if I may in hopes that we won’t impose on the Court for tomorrow.

Hugo L. Black:

Before you sit down.

Do you mind telling me just some here, what evidence did they offer to the future evidence?

Philip Weinberg:

They showed that the actual cost of living of individual items, the loaf of the bread and the bottle of milk were and I suppose a pair of trousers and so on that people have to buy were the same in New York City as they are in Nassau County.

And that’s not in dispute, they are.

Hugo L. Black:

Well, how do you combat that first?

Philip Weinberg:

Well, we combat that sir by suggesting that that’s not the only thing that a welfare department has to concern itself with in paying these allowances.

Hugo L. Black:

The rent?

Does it include rent?

Philip Weinberg:

Well, rent is separate as we’ve been indicated.

Rent is higher in the suburban counties because of rent control.

Philip Weinberg:

And because there’s more housing available in New York City so that rent is entirely different but of the factors outside of shelter.

The essence of their proof is that the bread and milk and so on, and clothing specific items the toaster cost the same in the New York City as they do in Nassau County.

We have no quarrel with that but we don’t think that resolves the case.

We certainly don’t think that that in of itself demonstrates that the legislature was so irrational and seemed fit to give these people, the New York City, $5.00 a month a person more.

Hugo L. Black:

How do you think that either one can prove with precise difference, the difference in the cost, one family living, one of those places, one living at the other.

Philip Weinberg:

I don’t think a fact — a group of elements like that lends itself a whole a configuration of factors lends itself to precise computation.

I don’t think this is like a — let say a negligence case or a case where you have to appraise the value of a piece of property.

The legislature has a right in its discretion to consider a lot of factors.

Some of which aren’t very tangible and some of which are very difficult to put a dollar and cent sign on.

Hugo L. Black:

Are you raising the question that the court is not the proper one to consider and try to make a final and definite judgment on those differences —

Philip Weinberg:

A court would be the proper —

Hugo L. Black:

— of the community?

Philip Weinberg:

— a court would be the proper forum if we transgress the Equal Protection Clause.

For example, that we pay people of one race more than people of another race, or we did something that was so totally out of line that there was just no way to justify it.

Like paying people in New York City three times what we paid people on Long Island.

But so long as we’re in the area of a slight differential and so long as we’ve come forward with cogent reasons for what we did.

We say that the Equal Protection Clause is satisfied and the standard set forth in the regulations satisfied.

And consequently, the injunction should be set aside and this complaint should be dismissed.

I haven’t touch on the unripeness of this case.

It’s set forth in our brief and I’ll refer to it on my rebuttal time defending, if I may?

Thank you very much for the opportunity.

Warren E. Burger:

Alright, Mr. Weinberg.

Mr. Sparer.

Edward V. Sparer:

Mr. Chief Justice, may it please this Court.

In the brief said in the argument, may I just this moment the appellants have engaged in various reasoning, various speculations as to possible differentials between the cost of living in New York City and the cost of living in the surrounding counties.

I hope to examine those speculations in as much detail as time permits in the latter half of my argument.

Warren E. Burger:

Do you think that to pursue Justice Black’s question, do you think that these factors taken as a whole are susceptible of the precise mathematical proof?

Edward V. Sparer:

Yes, Your Honor.

It is susceptible to precise mathematical proof as to what the cost of living of objective, what the cost of living of the items and the basic needs schedules of New York’s state are and New York City and in the surrounding counties.

Warren E. Burger:

And are your telling me that —

Edward V. Sparer:

And to demonstrate that —

Warren E. Burger:

— that you’re saying then in effect that it is inevitably the same?

Edward V. Sparer:

We’re saying that in fact, it is the same not inevitably the same.

Not at all, it could be different and if the proof were and there are cost of living studies conducted all the time by the Bureau of Labor Statistics which was introduced below by the New York State Welfare Department which study was introduced below by the various locals social service agencies such as the New York City Social Service Department, the Nassau Social Service Department, the Westchester Social Service Department despite —

Warren E. Burger:

Did they all agree?

Edward V. Sparer:

— despite.

They all agree.

Warren E. Burger:

They all agree?

Edward V. Sparer:

They all agree that the costs of the basic items going to food clothing, furnishing are withdraws that on furnishing.

The schedules of the local social service agencies show that household furnishing are slightly more expensive in the suburban counties than they are in the New York City area but there is a conclusion on this subject which appellants have made and which is very, very pertinent to the question Your Honor is raising with me and it was raised by Mr. Justice Black a moment ago.

Unfortunately, this conclusion was published too late for citation in our brief.

This published in the 103rd Annual Report of the New York Social Service Department and the New York State Board of Social Welfare and appellant Wyman on April 9, 1970 and I quote from page 4 of the appendix to that brief which is a report dated November 21st but which was not made publicly available at least to us until the time this was release after our brief was written.

It says this and I think its right in the heart of the statutory issue with this case.

Warren E. Burger:

Are you going to supply that to us —

Edward V. Sparer:


I would like to do that very much Your Honor.

I’ll quote the relevant two sentences.

“We have considered evidence concerning the cost of living.”

These are the appellants speaking in their 103rd report.

“We have considered evidence concerning the cost of living in different regions of the state and recommend that there be one statewide schedule of monthly allowance for all basic items of need, exclusive of shelter costs.

The evidence presented to us indicates that the major source of differentials and the cost of living and shelter cost which is not included in the flat grant and the effect of variation and other items of basic need for different regions results in approximately the same total cost of living for households comprise of the same number of persons and all such reasons which goes considerable beyond our case because we’re simply talking about the suburban counties.”

Hugo L. Black:

What does the legislature itself provided in reference to the difference — by the difference states?

Edward V. Sparer:

The legislature so far as we can determine Your Honor, has considered no cost of living studies whatsoever.

The legislature has simply cited in the second amended version of 13-a, that is the version presently in effect not the version which was in effect when the case began and not the version which will be in effect when the case began and the not the version will be in effect on June 1st, when the Rosado they tend to compliance will go into effect.

The legislature has found state it in its findings that finds as a fact that the cost to living in urban areas is greater due to the higher social complexity of living in those areas due to the higher complexity in utilizing programs services and facilities.

This was the reason, the reason, given by appellant Wyman to the Court below.

The reason I would like to examine in some detail because I think it’s —

Hugo L. Black:

I believe according to you, has not fixed in it, such difference?

Edward V. Sparer:


I misunderstood Your Honor’s question.

Edward V. Sparer:

The legislature fixed a statutory scale which reflects a certain difference between New York City and the rest of the region and then instructed the commissioner, appellant Wyman, to adjust the scale for the other regions if he finds that the cost of the items which comprise the basic needs in the other regions.

This is more or less and appellant Wyman in the one opportunity he had to act prior to the injunction in this case did so act.

Did narrow the differential set initially in the legislative maximums as he was permitted by the legislature but did not, did not narrow it sufficiently.

He leaves a 7% to 16% gap in the total amount of differential which we consider is not slight at all but of very, very serious consequence —

Hugo L. Black:

Quite a job.

Edward V. Sparer:

That is quite a job.

That is quite a job, and it’s the very difficult job and the evidence indicates the costs are the same.

There have been from the inception of this case Your Honors, two issues, the constitutional issue and the statutory issue.

The appellants just before made what I consider the rather surprising statement that we were unaware of the administrative policies which lead HEW to that conclusion that it stated in its brief.

I think that this case can be decided on the probabilities, that is the issue before the Court whether the preliminary injunction can be affirmed.

It should be affirmed, can be decided on the probabilities of success of plaintiffs in the statutory argument.

And I think the reason for surprise on the part of appellants’ surprises me.

There are several outstanding features of this case with regard to the statutory argument.

First, there are three causes of actions set forth causes of action set forth in the complaint to this case.

The first three deal purely with statutory ground.

Secondly, of two briefs submitted to the lower court by the appellees on the substantive issues one dealt almost exclusively with the statutory issue.

We were in fact had dealt with it at some length the greater length in our brief dealt with it before this cost — Court.

We were quite worthy then.

Third, the Court below devoted two pages of its opinion to the statutory issue.

It didn’t conclude on the statutory issue because it believes that its duty was to refer to HEW but it devoted two pages and what it is an obviously sympathetic consideration a plaintiff’s position.

Fourth, —

John M. Harlan II:

The lower court is wrong in that respect, I gather —

Edward V. Sparer:

In referring to HEW on that.

I would conclude on the basis of the majority opinion in Rosado that the lower Court was wrong Your Honor.

John M. Harlan II:

What should have it done?

Edward V. Sparer:

It should have considered the statutory argument.

Invited HEW to submit an amicus brief in its views and attempted to see if the —

John M. Harlan II:

Does not make the constitutional issue as very dependent.

Edward V. Sparer:

Absolutely, Your Honor and I urge that this Court decide whether or not the preliminary injunction should be affirmed on the basis of whether or not the statutory issue can be evaluated at this stage and we think it can.

Byron R. White:

You mean on this record we can examine it?

Edward V. Sparer:

Oh, I think its clear Your Honor.

I think that he — in addition to the fact as I’ve already cited there is —

John M. Harlan II:

You don’t think the disposition in Rosado is indicated here?

Edward V. Sparer:

Excuse me, Your Honor.

John M. Harlan II:

The disposition you made in Rosado, you think is not indicated for this case, on the statutory ground.

Edward V. Sparer:

I’m not sure I properly understand Your Honor’s question.

If what Your Honor is —

John M. Harlan II:

Well, we sent it back for a remand, didn’t we in Rosado?

Edward V. Sparer:

You sent it back for a remand after you concluded that the New York State standard of need as suggested by 131-a violated Section 402 (a) 23.

If you reach the same conclusion here with regard to the difference that’s use of a differentials there is a proper basis for affirming the preliminary injunction which was before the Court.

John M. Harlan II:

You don’t — do you think they finally submit the resolve, the statutory issue or just say there’s enough likelihood of success on it to justify the preliminary injunction?

Edward V. Sparer:

I think that in light of what the appellants’ argument is that they have nothing further to say on the statutory issue.

You could finally resolve but I don’t think you have to.

I think you can simply state that the — there’s enough probability to it to reach conclusion.

I know that the appellants have stated both in the reply brief and before the Court just a moment ago that the statutory issue is the same as the constitutional issue on equal protection —

Warren E. Burger:

But not quite.

Not quite — not quite Mr. Counsel.

You said that as I understood then that there was a certain amount of overlap?

Edward V. Sparer:

Well, Your Honor, as I understand their position which if I may have misinterpreted as oral statement but their brief is quite clear.

Thus, whether that I’m quoting from page 13 of the reply brief, “Thus, whether the Constitution, the Social Security Act of the HEW regulations be conceded the touchstone in any cases whether the differentials are arbitrary.

If they meet the test of rationality under the Equal Protection Clause, they cannot reasonably be held violative of any — anything in the Act or regulations.”

That is their argument.

I think that’s an error.

I think it’s quite clear as we consider the HEW regulations that one can arguably meet the test of minimal rationality under the Equal Protection Clause and not meet the requirements of the regulation.

I think that’s very clear.

And I — with your permission I would like to move on to a consideration of the regulation.

The regulation embodies four related requirements which are best understood when considered together.

First, the regulation and the HEW material require that the standard of need, the standard of need which is compose of both items of need and a money assessment of those items of need that the standard of need be statewide.

That is if the state is going to recognize clothing needs in one part of the state, the recipient is going to recognized clothing needs in any other part of the state where people need clothing.

It must be statewide, number one.

Edward V. Sparer:

Number two, the standard — the money amount established by the standard must be said on the basis of objective facts.

That is an important part of the regulatory requirement.

Number three, the standard must be uniformly applied throughout the state unless subject the facts show that there’s actually a variation in the cost of living, in the cost of the items throughout the state.

And number four, if the state can’t afford to meet the full cost of the standard of need because the maximums because of insufficient funds any reduction in meeting that full standard must be applied uniformly.

The idea as HEW expresses it in his handbook is that recipients with similar needs wherever they live in the state with similar resources will get equal benefits.

Warren E. Burger:

Between New York City if now immediately by whatever administrative process is necessary.

If New York City cut back to the level of these other areas then you wouldn’t be here?

Edward V. Sparer:

That’s correct.

Near the Court injunction that our argument requires that the standard go up for recipients New York City could come down but I call Your Honor’s attention to the very consideration you’ve placed, this Court place forward in the Rosado.

And that is there is a point this Court argued to an articulation of the standard of need which reflects social realities and cost realities throughout the state.

There is a point because if that’s going to be cut back, at least the people of a state in the legislature of the state should know how much cut back is actually going and how far sure the state is falling.

Now with the purpose of 402 (a) 23, I just suggest to you that the state is free to cut New York City back and move the suburban counties up but it must do so on the basis of a frankly recognize standard of need which is uncommon to both of these places and one which was also affected by 402 (a) 23.

Warren E. Burger:

Well, you mean they have to make the new objective findings or couldn’t they just take your brief and say well we, we surrender and we cut New York City back?

Edward V. Sparer:

Well, Your Honor, the objective findings have already been made by the appellant commissioner in his report and they’ve been made again, again, again, again.

They were — have made for years now but the cost of these items are the same.

They don’t have to meet those scores.

They can cutback.

They can pay a less of percentage.

But unless they come up with some kind of objective showing, some kind of study, some kind of consideration of the actually costs of these items which shows that the items vary in one region or another or more or less than one figure or another.

They simply can’t state that New York City shall receive this amount and Nassau shall receive some other amount.

I think what has taken place in this Court in this case is that one of the appellants have done and done clearly in terms of their argument is establish a different standard of need.

Not a different cost but a different standard of need for New York City then for the suburban counties.

And if one examines, anyone of the arguments that they put forth that becomes quite clear.

For example, the primary argument cited as a finding by the legislature, relied on by the appellant below is that there is a higher cost of social living in New York City which requires transportation to daycare centers, to welfare centers, to beaches, to museums, to clinics and so forth.

Well, there was an examination of appellant Wyman on this question.

And the results of the examination made quite clear what took place.

Let me cite two of these issues.

Question:“Do recipients to your knowledge have a need for transportation to the welfare centers in Nassau County?”

Answer of appellant Wyman: “I should imagine so on occasion.”

Question:”Approximately the same as recipients in New York City?”

Edward V. Sparer:

Answer of appellant Wyman:”I don’t know.”

Question:”No reason to believe otherwise?”

Answer:”No, reason to be otherwise.”

Question:”Are you aware of the daycare centers for children in Nassau County?”


Question:”They are all — there are some and there are daycare centers for children in Westchester County?”

“And for those people who need to use them are transportation costs involved?”


“To the extent that the transportation system’s costs more than New York City, the cost is more.

The evidence had already showed that the transportation cost more in Nassau?”

Answer:”That is correct.”

What took place in this case and what is taken place in this case is that the legislature is seen fit to declare a different standard of need to provide a differential which allows for transportation cost of some sort to the welfare center, to daycare centers, to beaches in New York City and not to do that in Nassau and not to do that in Yorkers, not to do that in Poughkeepsie.

We would assert on the equal protection issue as a basis of minimal rationality and I know to this Court that the Court below decided not simply on the express special scrutiny standard which was rejected in Dandridge.

But on the basis of the minimal rationality test as well.

But traditionally for protection standard test as well.

I would assert that a test doesn’t make sense on the basis of any common relation to experience to assert that the mother in Yorkers or the mother in Nassau who has to pay more to get her kids to a beach or to get to the welfare center itself or to get to a daycare center should receive nothing while an allowance is provided for the mothers in New York City doesn’t make sense but the point —

Potter Stewart:

But do you think the New York legislature might know a little bit more about that than maybe nothing you do that — but than most of us do?

Edward V. Sparer:

Well, Your Honor this Court noted in Rosado that speculation is the mode this to be in shown and I would not engage in speculation as to motive but I would sight the brief for appellants on this issue.

And I would call your attention to page 38.

Potter Stewart:

Of what?

Hugo L. Black:

Of what?

Edward V. Sparer:

Page 38.

Potter Stewart:

Of what?

Edward V. Sparer:

Of the brief for appellants.

Potter Stewart:


Thank you.

Edward V. Sparer:

What appellants argue with that point is that the system created under the Section 131-a is kind of analogous to a matching grand program since welfare county officials are empowered to make application for increase amounts on the approval of the appropriate legislative body.

They go on to state this which is really at the heart of the problem in this case.

They go on to state that this demonstrates the state legislature’s concern for the ability to pay of various welfare districts and stay would be required to pay one quarter of any increase over the establish levels.

I think that what’s going on this case Your Honor.

Edward V. Sparer:

I think they’re right in what they say there that the legislature was concern with the ability of upstate localities to pay their one quarter of the welfare share.

If one looks into the HEW regulations and the HEW materials that problem is exactly the problem which the uniformity regulations are aimed at and were aimed that from 1935 on.

It’s a very old regulation we’re talking about here and the reason they were aimed at this problem from 1935 on is that the general characteristic of public welfare in the United States prior to the Social Security Acts passage in 1935 was that each local county throughout the state paid exactly what they please whether they pay full need, half need, no need, a variation was absolutely enormous.

This was one of the major problems.

The reason of variation was enormous was that welfare standards were dependent upon the localities willingness to raise the taxes in many localities a great problems as HEW’s properly interpreted the requirement that the states financially participate in each locality throughout the state that requirement means that the state must financially participate through the extent necessary to relieve a locality of any problem it has in meeting a uniform schedule.

The state must put in enough money to make sure that a uniform schedule was met.

Now, if New York State is permitted to retreat on this issue will allow localities to have a local — to have a lower standard because of the problems they have in raising taxes and New York has decided that they cannot pay one quarter of the total share.

We are taking a very long step back to the pre-1935 situation.

This is what motivated the HEW regulation.

This is the real interest of welfare recipients in this case throughout the country and I would argue in answer, Mr. Justice Stewart to your question.

Don’t you think the legislature knows better than we?

The legislature may or may not know the local condition that if than anyone else.

I don’t think this case raises that issue.

I think this case raises the issue of whether or not the legislature has in fact created disparate standard of need of these localities because of their financial problems and that is what’s taken place.

It is exactly what’s taken place.

If you —

Potter Stewart:

The local with county has to raise what percentage?

Edward V. Sparer:


Potter Stewart:


Edward V. Sparer:


Potter Stewart:

In the state, the others reported.

Edward V. Sparer:

Which is a — throughout the state another 25% federal government about 50.

Those are approximate figures.

At 25% is considerable figure.

That’s not the way the system works throughout the United States but in those states where the localities have to pay a large share of the local welfare burden, welfare is a very hot and difficult political issue.

It just follows as day follows night, and night follows day.

The same problem, Your Honor, with regard to the creation of a different standard of need is seen when we consider any of the other arguments asserted by appellants.

For example, the rent control argument, what do they say here?

They say that, does rent control in New York and not in some of other counties but of course there is but let’s assume that’s accurate.

Therefore, there’s lower rent in New York City than some of other counties.

Edward V. Sparer:

Therefore, the amount of money given in the special rent grants to New York City welfare recipients is last than that given to welfare recipients in the other counties.

Therefore it’s proper for the legislature to make this up to New York City recipients to some extent so that they can buy some other things by giving them a little extra money.

This is said right on the bottom in their brief.

They make no bones about it in their reply brief.

Initially, it seems we misunderstood their argument in their reply brief.

They come right back and say, we misunderstood what they’re saying, does lower rents within the New York City area —

Potter Stewart:

Where are you reading from, Mr. Sparer?

Edward V. Sparer:

Page 11 of appellant’s reply brief, at the very top.

Thus, lower rents within New York City directly result in a lower standard of need and higher rents outside the city.

In the highest standard of need compensating for the slightly higher allowance within the city with components of the standard of need other than rents.

Now, they start with the fact that rents are paid especially according to actual need in that part of a basic need requirements which is what at issue in this case.

Then they state that we give more rent because the people upstate have more of a rent need so they give more money which goes into rent.

And then they state will give some extra to New York City, So that they can buy some other things, but that’s establishing a different standard of need for New York City.

Warren E. Burger:

But do you think it’s a denial of equal protection to give more people of the — more rent to the urban and to the suburban people and the urban people?

Edward V. Sparer:

No, Your Honor.

Not in the way you phrase the question.

Warren E. Burger:

Well, the question is that —

Edward V. Sparer:

I would phrase the question —

Warren E. Burger:

I was telling you the way it is.

I was taking your statement facts.

Edward V. Sparer:

Well, taking my statement of facts Your Honor, I’d rephrase the question this way.

I would say that if what New York State has done is average out the costs of rent throughout the state.

Average out the cost of all these other basic need items and presented one average sum to the people of New York State that would not deny equal protection even those some benefited more and some benefited less.

But I would state that when New York State decides that it’s going to pay rent and especially, so that everybody has their full rent needs pay.

And then it’s going to take another sum and meet other basic needs.

And then it’s going to pay up to 16% more to people in New York City because they don’t have as much money to pay rent which they don’t need to pay rent.

Then there’s something — there’s something irrational about that —

Warren E. Burger:

Well, I understand about this matter that its argument.

But let’s just stay on the rent for a moment.

Do you think there’s rational basis for a differential in the rent allowance in New York City under their places?

Edward V. Sparer:


The rational basis —

Warren E. Burger:

How did they — it is anymore precise than the differences that the commissioner is relying on than the other areas?

Edward V. Sparer:

Oh, yes.

Well, it’s not anymore precise as precise.

Warren E. Burger:

Now, what?

Edward V. Sparer:

The commissioner has average figures, who are they paid for rent to welfare recipients in New York City and elsewhere which they referred to.

If they wanted to pay those average figures that would be fine.

They’ve chosen not to and that’s fine too.

They’ve chosen to pay the exact amount of rent and that’s fine.

That doesn’t raise any equal protection questions.

All we argue is that haven’t chosen one method or other to pay rent to then state to the people upstate that because you have a higher cost than people in New York City have, we’re going to give the people of New York City 16% more to buy things which we’re not allowing you to buy because we’re not giving you any money to buy him with.

It doesn’t make any sense at all.

Now, as I argue Your Honor, this Court need not reach that question in terms of equal protection, that’s a question of judgment as to rationality and whether how much difference is going to be given to the legislative judgment on this.

In terms of the statutory requirement of statewideness, the violation is clearly.

It could not be clearer.

It is — the problem I think on appellant’s part occurs because they confused the standard of minimum rationality for equal protection and the standard under the HEW requirements of uniformity.

They confuse them badly and therefore don’t address in reality the standard of uniformity.

I would conclude Your Honor that we could engage in the same process as we have in our briefs with regard to every one of the arguments raised by appellants.

But I would conclude —

Byron R. White:

Would you think the federal act requires equal money amounts statewide, in each county?

Edward V. Sparer:

Statewide, yes.

Unless there’s a variation in the cause which —

Byron R. White:

In the cause?

Edward V. Sparer:

In the cause.


Byron R. White:

And if there is, there could still be a statewide uniform standard and variations in money amounts without violating the federal law?

Edward V. Sparer:


Now —

Byron R. White:

And now, what’s the objection here to — how do — what do you understand the United States’ position to be that there is not a uniform state standard or that he just hasn’t shown that there’s variation at any cost.

Edward V. Sparer:

As I understand it, the United States’ position which will be exploit by the United States shortly is this.

First, they have established a different standard for New York City because they are allowing a different kind of position in there.

Byron R. White:

Is that your position, too?

Edward V. Sparer:

That is our position, yes, Your Honor.

Byron R. White:

And what then — and what is the different standard?

Edward V. Sparer:

The different standard is that they are allowing by their own language.

Monies for transportation to daycare centers, to social welfare centers, and so forth, the people of New York City which they’re not allowing elsewhere.

Even though by their own testimony, the people elsewhere have those very same needs.

Byron R. White:

Well, that’s — in the standard of need is there some miscellaneous category or is it every listed?

Edward V. Sparer:

Well, the — the principle of standard of need allows as HEW sets forth in the three simplified methods allows the states to combine a wide variety of items.

In the past, New York did not combine, it listed individually.

Byron R. White:

But it is now?

Edward V. Sparer:

Now, it combines.

But those combined items reflect particular matters.

They give one overall sum for that.

And what —

Byron R. White:

How could it — how would it, let’s assume that laundry cost the same in New York City and in Nassau County per pound.

Or however each shirt cost the same.

The only thing is that shirts get dirtier often in New York City.

Now, how would that be reflected in the — you could still pay the New York people, I suppose more for laundry?

Edward V. Sparer:

You could increase the standard on the showing that shirts get dirty in New York City.

Byron R. White:

The increase standard is that —

Edward V. Sparer:

You could increase the standard for New York City, yes.

The standard —

Byron R. White:


Edward V. Sparer:

The standard.

Byron R. White:

Well, you’ve got to pay him for laundry.

You’ve got to pay him for laundry if —

Edward V. Sparer:

Or you could create a special need allowance for laundry which is allowed under HEW regulations in which you pretty much use to be the case in New York City.

The only point which is relevant about that that I see to this case is that if you create a special allowance for laundry.

Edward V. Sparer:

Let’s say $10.00 a month maximum depended on how much need do you actually have to wash shirts for a month long.

You have to apply that statewide so that people who live in Buffalo and working in or near or live near a steel mill in Buffalo will also happen to have that same need can also get the shirts washed.

Byron R. White:

Now, but what if you don’t have it in Nassau County?

Edward V. Sparer:

If you don’t have it on Nassau County unless it can be shown —

Byron R. White:

And if then — then were not going to listen to the argument much here, are we?

Edward V. Sparer:

Pardon me?

Byron R. White:

We wouldn’t listen very long about it here would we on an equal protection basis?

We might on the statutory basis.

Edward V. Sparer:

Well, I — I know you’re not interested in laundry cost in particularly —

Byron R. White:

No, but I’m not interested in when you argue somebody else’s right under the Equal Protection Clause?

Edward V. Sparer:

I think welfare recipients can and ought to be in a position to argue that when they had rents are cutback as they were cutback under Section 131-a to be low what New York State had described previously as the absolute minimum and necessary for survival.

And then welfare recipients in one part of a state are further cutback up to the 16% more of the 16% more than recipients in the other part of the state.

Welfare recipients have something very vital at issue.

Now, that vital matter may not result in the need for a special standard of equal protection.

As this Court noted in Dandridge but it does require some sort of attentionality — attention to the rationality of the procedure.

And I think that issue is there.

The lower Court concluded that it violated minimum rationality as well as special scrutiny.

But it certainly violates the statute.

That’s what it issue here.

Warren E. Burger:

Both the state of New York legislature made a legislative judgment that helped relieve the congestion in the cities that they would have equal rates all over state.

The same in Poughkeepsie and whatever your northernmost towns are, the small towns as in New York City eventhough they acknowledge the differential in costs.

But they did this deliberately to get people to move out of the cities and as a matter of public policy.

Do you think that would be permissible?

Edward V. Sparer:


I think and perhaps I misunderstood part of Justice White’s question.

I think these questions are related.

I’ll try to answer it more fully now.

We — there are two contrasting situations.

Contrasting situations number one which is what we alleged took place here is the creation of two separate standards for people in parts, two parts of the state, one part put on a lower basis without any relation to actual cost than another part.

Situation number two which may also raise a uniformity question would arise where one uniform standard is created throughout the state eventhough it is quite clear that in one part of the state that uniform standard is totally insufficient to meet the items or base the cost the of items of basic need which it does need because of the actual cost situation in another part of the state.

Edward V. Sparer:

We suggest that it’s consistent with the principle of uniformity to average costs and apply a uniform standard statewide.

HEW has said out of experience that costs outside of rent just don’t really basically differ within most states and therefore some objective showing would be made.

But if an objective showing is made that cost really different, different in a very significant extent and the uniform state standard is not arrived at by an averaging principle but simply by taking the lower place as the standard and subjecting the people who lived in the very high cost place to that.

Then I think there would be a uniformity issue raise.

Now, Your Honor in terms of the soundness of the legislative policy involved.

I think that is an issue in the first instance for the United States Congress.

And it seems to me that with 35 years of a Social Security Act which is administered by HEW has followed the uniformity principle the United States Congress may be said also to follow this uniformity principle.

And this principle is critical.

It’s critical and important to public assistance administration.

Warren E. Burger:

Mr. Strauss, you can get underway for a little while today.

Peter L. Strauss:

Mr. Chief Justice and may it please the Court.

I gather we will be going over until tomorrow and so for now, I just want to say a few things rather briefly to get down what seem to me, seem to the United States to be the central features of this case.

First, I think it is by now clear that the only issue in this case is a preliminary injunction.

A preliminary injunction whose effect I think has been dramatically over characterized by appellants here.

It is not a requirement to the state to appropriate funds.

It is not an injunction to the state to pay the injunction tells the State of New York strictly in the terms of Mr. Justice Harlan’s opinion for the Court in Rosado.

If the state wishes to continue receiving federal funds then it must order its need standard in such a way that it is done on an objective rational basis which are submission is the requirement of federal law and no more.

Second, I think again to clear out the point which has been raised here.

It is fundamentally our belief and I will put it in probability terms which are all that are required here on preliminary injunction that the appellants have shown that in all probability New York State is applying two different standards of need.

One for New York City which includes the social class of living in a city, in transportation, in visits to museums, in beaches, and possibly laundry costs and a lot of costs, and a number other items and another standard of need for the rest of the state in which residents and the rest of the state cannot obtain those item or I should put it more correctly because welfare recipients may spend the money they received, however they wish have no allowance for those items no matter how badly they may need them even if they live in Ghetto and Yonkers or in Buffalo.

There simple is no allowance for them for these items.

And it is the position of HEW that the standard of need is a standard of services.

Not a standard of money necessarily and that the obligation of the state is to determine for itself and they have great latitude in doing so.

What services are required it is a minimum for living in that state.

When they determine what services are required then they may cost those services and they may do so as Mr. Sparer has just suggested on one of two bases.

And they do so throughout the state taking an average of those costs throughout the state or they may do so on a regional basis.

It may very well be that the average expense for Knox in New York is considerably greater than the average expense in Buffalo or certainly than the average expense in Malone.

And the state would be entitled to take that into account and deciding how much to pay on those regions.

But it must make provision that if it’s going to provide that these things are available it must make provision for their availability on a statewide basis.

And I think Mr. Chief Justice that really provides the answer to your rent question.

Peter L. Strauss:

New York has made the judgment.

I for myself would think it’s a wise judgment although not necessary one that the costs of rent are so variable in different parts of the state that it would be unfair to treat them as on average.

And therefore, they treat them on an individual basis.

But in terms of the standard of need, what’s important is that everyone in New York State has the right to rent.

But it doesn’t matter whether you live in Buffalo or New York City or on Nassau County.

You have the right to rent.

You could have it on average basis.

You could have it on individual cost basis but you have the right to that service.

What New York City is doing on this case, we submit is to say that only people who live in New York City have the right to go to the beach.

And only people who live on New York City have the right to an allowance for transportation and only people who live in New York City have the right to an allowance that might provide them some security or repair their dilapidated premises.

Those are the only rationales we’ve heard and those rationales do not meet federal requirement in uniformity.

Byron R. White:

So therefore, this should mean that we should finally settle statutory argument here?

Peter L. Strauss:


I think — I think a — I think the Court —

Byron R. White:

You think first of the preliminary injunctions —

Peter L. Strauss:

I think the Court might but all that’s necessary is to affirm the preliminary injunction and leave the further proceedings below.

Byron R. White:

Because you don’t —

Peter L. Strauss:

I think —

Byron R. White:

United States has taken the final position though that conflict with the federal statute —

Peter L. Strauss:

We have.

I think one of — I think one of the features that the Court might wish to have in mind in deciding what to do is that there is this new statute that Commissioner Wyman is under very explicit instructions from the State of New York about meeting the federal standards.

He — he knows there can be no question what our position is now.

Let me read you this.

This is from Section 1, the enacting part of this new statute of April 16th.

The legislature hereby and declares its intent —

Warren E. Burger:

I think you better defer till morning on that Mr. Strauss.

I think we’ll suspend for the day to take you more time when we have left.

Peter L. Strauss: