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Casting a Long Shadow after 40 Years. Synopsis Goldberg v. Kelly - product of a combination of factors and conditions Goldberg v. Kelly - product of a.

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Presentation on theme: "Casting a Long Shadow after 40 Years. Synopsis Goldberg v. Kelly - product of a combination of factors and conditions Goldberg v. Kelly - product of a."— Presentation transcript:

1 Casting a Long Shadow after 40 Years

2 Synopsis Goldberg v. Kelly - product of a combination of factors and conditions Goldberg v. Kelly - product of a combination of factors and conditions Goldberg v. Kelly’s history, including the forgotten California case of Wheeler v. Montgomery. Goldberg v. Kelly’s history, including the forgotten California case of Wheeler v. Montgomery. Later cases have undercut some Goldberg principles but it still casts a long shadow in the fields of administrative and constitutional law and on current administrative practices. Later cases have undercut some Goldberg principles but it still casts a long shadow in the fields of administrative and constitutional law and on current administrative practices.

3 Due Process Quotes The history of liberty has largely been the history of procedural safeguards. --Justice Felix Frankfurter

4 Most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule of law and rule by whim or caprice. --Justice William O. Douglas

5 When government acts in a way that singles out … individuals …it activates a special concern about being personally talked to about the decision rather than simply dealt with. --Justice Harry Blackmun

6 Setting the Stage Early 1960s social and political forces combine to stir the nation to address the growing problem of poverty. Early 1960s social and political forces combine to stir the nation to address the growing problem of poverty.

7 War on Poverty President Johnson declared War on Poverty and implemented federal programs for Medicare and Medicaid, housing assistance, job training, public education, and legal services. President Johnson declared War on Poverty and implemented federal programs for Medicare and Medicaid, housing assistance, job training, public education, and legal services.

8 Poor People’s Campaign In 1967 Martin Luther King Jr. organized a Poor People's Campaign to address issues of economic justice and housing for the poor. In 1967 Martin Luther King Jr. organized a Poor People's Campaign to address issues of economic justice and housing for the poor.

9 Poor People’s March on Washington 1968

10 Welfare Rights Movement Individual rights became an organizing principle in the 1960s and the welfare rights movement was born. Individual rights became an organizing principle in the 1960s and the welfare rights movement was born.

11 The Poverty Lawyer Traditional legal aid work involved routine legal advice to poor people Traditional legal aid work involved routine legal advice to poor people Legal Aid Society of New York 1910

12 The Poverty Lawyer Mobilization for Youth (MFY) Legal Unit, which filed the Goldberg v. Kelly lawsuit was one of the first programs to receive OEO funding. Mobilization for Youth (MFY) Legal Unit, which filed the Goldberg v. Kelly lawsuit was one of the first programs to receive OEO funding.

13 The Poverty Lawyer OEO Also Funds San Francisco Legal Assistance

14 Litigation Strategy Poverty lawyers followed the litigation strategy of civil rights movement of pursuing impact litigation. Poverty lawyers followed the litigation strategy of civil rights movement of pursuing impact litigation.

15 Poverty Lawyer’s Goals Welfare rights lawyers wanted a Brown v. Board of Education decision for the poor including: Welfare rights lawyers wanted a Brown v. Board of Education decision for the poor including: Constitutional "right to live" with a legal guarantee of a minimum standard of living to all citizens. Constitutional "right to live" with a legal guarantee of a minimum standard of living to all citizens. Extending the strict scrutiny given racial classifications to classifications based on wealth. Extending the strict scrutiny given racial classifications to classifications based on wealth.

16 Early Successes King v. Smith (1968) King v. Smith (1968) Alabama’s “substitute father” rule—denying AFDC to single mothers who regularly cohabited with a man—violated the Social Security Act’s definition of a needy child. Alabama’s “substitute father” rule—denying AFDC to single mothers who regularly cohabited with a man—violated the Social Security Act’s definition of a needy child. Shapiro v. Thompson (1969) Shapiro v. Thompson (1969) Legal residency requirements for AFDC violated a person’s fundamental right to travel without a compelling government interest. Legal residency requirements for AFDC violated a person’s fundamental right to travel without a compelling government interest. Sign of things to come—Brennan states: “This constitutional challenge cannot be answered by the argument that public assistance benefits are a privilege and not a right.” Sign of things to come—Brennan states: “This constitutional challenge cannot be answered by the argument that public assistance benefits are a privilege and not a right.”

17 Early Successes Poverty lawyers appealed 164 cases to the U.S. Supreme Court from 1965 to Poverty lawyers appealed 164 cases to the U.S. Supreme Court from 1965 to Poverty law cases constituted 7% of the Court’s opinions during this period. Poverty law cases constituted 7% of the Court’s opinions during this period.

18 Goldberg v. Kelly: Opening Act The Plaintiffs’ Attorneys: The Plaintiffs’ Attorneys: In 1967, lawyers at MFY Legal Unit and the Center for Social Welfare Policy and Law decided to sue the city and state of New York challenging welfare terminations. In 1967, lawyers at MFY Legal Unit and the Center for Social Welfare Policy and Law decided to sue the city and state of New York challenging welfare terminations. MFY Legal Unit (now MFY Legal Services). David Diamond was the primary lawyer who prepared and filed the lawsuit. MFY Legal Unit (now MFY Legal Services). David Diamond was the primary lawyer who prepared and filed the lawsuit. The Center for Social Welfare Policy and Law (now National Center for Law and Economic Justice) assisted MFY with the lawsuit. Lee Albert became the lead attorney in the case. The Center for Social Welfare Policy and Law (now National Center for Law and Economic Justice) assisted MFY with the lawsuit. Lee Albert became the lead attorney in the case.

19 John Kelly and Plaintiffs in January 1968 John Kelly, a 29-year-old homeless man came to MFY after his home relief check was cut off. He agreed to join the lawsuit challenging the cutoffs. He was told his name would “go up in lights.” in January 1968 John Kelly, a 29-year-old homeless man came to MFY after his home relief check was cut off. He agreed to join the lawsuit challenging the cutoffs. He was told his name would “go up in lights.” 20 plaintiffs were added to assure the case won’t become moot. 20 plaintiffs were added to assure the case won’t become moot.

20 Defendants and their Attorneys The Defendants The Defendants Kelly’s lawyers decided to sue New York state and city officials and suing federal officials was too dangerous. Kelly’s lawyers decided to sue New York state and city officials and suing federal officials was too dangerous. George Wyman, the New York State welfare commissioner, and Jack Goldberg, the New York City welfare commissioner were named defendants. George Wyman, the New York State welfare commissioner, and Jack Goldberg, the New York City welfare commissioner were named defendants. January 28, 1968, the lawsuit was filed in federal district court under the caption, Kelly v. Wyman. January 28, 1968, the lawsuit was filed in federal district court under the caption, Kelly v. Wyman. The Defendants Attorneys The Defendants Attorneys City Attorney John Loflin represented New York City, and Joel Sacks represented the State of New York. City Attorney John Loflin represented New York City, and Joel Sacks represented the State of New York. The federal court invited the United States to file an amicus brief due to its interest in the welfare monies. The federal court invited the United States to file an amicus brief due to its interest in the welfare monies.

21 Welfare Termination Process Before the lawsuit, NY had no requirement of prior notice or hearing of any kind before benefits were terminated. Before the lawsuit, NY had no requirement of prior notice or hearing of any kind before benefits were terminated. After the lawsuit was filed, NY State adopted rules providing for a pre-termination informal conference. Option A. After the lawsuit was filed, NY State adopted rules providing for a pre-termination informal conference. Option A. NY City believed the state’s pre-termination process was too costly and adopted a “paper review” process. Option B. NY City believed the state’s pre-termination process was too costly and adopted a “paper review” process. Option B.

22 Kelly v. Wyman (1968) A three-judge court was convened, with Second Circuit Court of Appeals Judge Wilfred Feinberg presiding. A three-judge court was convened, with Second Circuit Court of Appeals Judge Wilfred Feinberg presiding. June 26, 1968, oral arguments made to the three- judge panel. June 26, 1968, oral arguments made to the three- judge panel. November 26, 1968, Judge Feinberg issues the decision: November 26, 1968, Judge Feinberg issues the decision: Due process applied to welfare benefits terminations Due process applied to welfare benefits terminations NY State’s option A satisfied due process NY State’s option A satisfied due process NY City’s option B violated due process because the stakes are too high for a welfare recipient who has a “brutal need” for the benefits and the chance of errors is too great with city’s procedures. NY City’s option B violated due process because the stakes are too high for a welfare recipient who has a “brutal need” for the benefits and the chance of errors is too great with city’s procedures.

23 Wheeler v. Montgomery (1968) The Forgotten California case

24 Seven month before Kelly v. Wyman was decided, a California 3-judge panel issued the opposite decision on the requirement of a pre- termination hearing. Seven month before Kelly v. Wyman was decided, a California 3-judge panel issued the opposite decision on the requirement of a pre- termination hearing. April 19, 1968, the California court decided the informal conference process California had adopted before cutting off benefits satisfied due process. April 19, 1968, the California court decided the informal conference process California had adopted before cutting off benefits satisfied due process. June 14, 1968, Sitkin and Steve Antler, a former MFY attorney, appealed to the Supreme Court. June 14, 1968, Sitkin and Steve Antler, a former MFY attorney, appealed to the Supreme Court.

25 Race to the Supreme Court Wheeler Goldberg

26 Goldberg v Kelly Preparing the Briefs Preparing the Briefs Loflin’s brief for the NY City was 9 pages. Loflin’s brief for the NY City was 9 pages. Sylvia Law missed Woodstock the summer of 1969 to work on the Goldberg brief. Sylvia Law missed Woodstock the summer of 1969 to work on the Goldberg brief. August 30, 1969, plaintiffs’ 74-page brief was filed. August 30, 1969, plaintiffs’ 74-page brief was filed. Briefs reference Professor Charles Reich's works that welfare benefits are not gratuities but are ''property'' protected by the Constitution. Briefs reference Professor Charles Reich's works that welfare benefits are not gratuities but are ''property'' protected by the Constitution.

27 Wheeler-Goldberg Arguments

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29 Deliberating and Drafting

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32 Delivering the Majority Opinion Douglas’ choice of Brennan to author the opinion was fortunate. Douglas’ choice of Brennan to author the opinion was fortunate. Brennan’s willingness to make changes caused Harlan and White to join the opinion. Brennan’s willingness to make changes caused Harlan and White to join the opinion.

33 “From its founding, the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders.” Brennan’s Signature Opening

34 Does Due Process Apply? Does due process apply to the termination of welfare benefits? Does due process apply to the termination of welfare benefits? Brennan cites Shapiro v. Thompson: “The constitutional challenge cannot be answered by an argument that public assistance benefits are a privilege and not a right." Brennan cites Shapiro v. Thompson: “The constitutional challenge cannot be answered by an argument that public assistance benefits are a privilege and not a right." And he reasons that: “Such benefits are a matter of statutory entitlement for persons qualified to receive them. 8 ” And he reasons that: “Such benefits are a matter of statutory entitlement for persons qualified to receive them. 8 ” Notably, in footnote 8 Brennan refers to Prof. Reich’s writings to support his opinion that a person who has qualified for a benefit has a property interest in the benefit that cannot be taken without due process. Notably, in footnote 8 Brennan refers to Prof. Reich’s writings to support his opinion that a person who has qualified for a benefit has a property interest in the benefit that cannot be taken without due process.

35 What Process is Due? If due process applies, what process is due? If due process applies, what process is due? To answer this question, Brennan uses a balancing test weighing the recipient’s interests vs. the government’s interests in conserving fiscal and administrative resources. He considers the stakes to be too high for the welfare recipient who is “deprived of the very means by which to live while he waits.” To answer this question, Brennan uses a balancing test weighing the recipient’s interests vs. the government’s interests in conserving fiscal and administrative resources. He considers the stakes to be too high for the welfare recipient who is “deprived of the very means by which to live while he waits.” In addition, he concludes New York’s written review process and California informal conference process do not provide sufficient protection against mistaken terminations, especially since welfare cases often involved disputed factual issue where credibility is important. In addition, he concludes New York’s written review process and California informal conference process do not provide sufficient protection against mistaken terminations, especially since welfare cases often involved disputed factual issue where credibility is important.

36 Goldberg 10 Brennan very carefully says the "pre-termination hearing need not take the form of a judicial or quasi-judicial trial" and only procedures required by rudimentary due process are needed, which include: Brennan very carefully says the "pre-termination hearing need not take the form of a judicial or quasi-judicial trial" and only procedures required by rudimentary due process are needed, which include:

37 Timely and adequate notice Oral presentation of evidence Oral presentation of arguments Disclosure of opposing evidence Right to an impartial decision maker Confrontation of any adverse witnesses Cross-examination of adverse witnesses Right to attorney or representative Decision based on record of the hearing Statement of reasons and evidence supporting the decision Goldberg Top 10

38 Goldberg 10 After reviewing the list of 10 requirements, it seems more accurate to say the hearing should resemble a judicial trial because it sure looks like one. What didn’t the Court require? After reviewing the list of 10 requirements, it seems more accurate to say the hearing should resemble a judicial trial because it sure looks like one. What didn’t the Court require? No need for complete record No need for complete record No need for complete opinion with formal findings of fact and conclusions of law. No need for complete opinion with formal findings of fact and conclusions of law. No counsel provided by the government. No counsel provided by the government. No particular order of proof. No particular order of proof. No mention of evidence under oath. No mention of evidence under oath. No mention of subpoenas for witnesses No mention of subpoenas for witnesses If you compare Goldberg hearing requirements to the requirements for formal adjudication under § 556 of the federal APA or § of the Model State APA, you’ll find very little difference. If you compare Goldberg hearing requirements to the requirements for formal adjudication under § 556 of the federal APA or § of the Model State APA, you’ll find very little difference.

39 Delivering the Dissenting Opinion “The Court today holds that it would violate Due Process to stop paying those people weekly or monthly allowances unless the government first affords them a full 'evidentiary hearing' even though welfare officials are persuaded that the recipients are not rightfully entitled to receive a penny under the law.… I do not believe there is any provision in our Constitution that should thus paralyze the government's efforts to protect itself against making payments to people who are not entitled to them.” “The Court today holds that it would violate Due Process to stop paying those people weekly or monthly allowances unless the government first affords them a full 'evidentiary hearing' even though welfare officials are persuaded that the recipients are not rightfully entitled to receive a penny under the law.… I do not believe there is any provision in our Constitution that should thus paralyze the government's efforts to protect itself against making payments to people who are not entitled to them.” Justice Hugo Black

40 Goldberg v. Kelly’s Influence [Justice Brennan] did something rare in the law— he created a symbol, a symbol of the need for equality, dignity, and fairness in the individual’s relationship to the administrative state. --Justice Stephen Breyer

41 Goldberg’s influence Goldberg’s influence Linda Greenhouse, 1998 Pulitzer Prize journalist for New York Times wrote after Justice Brennan’s death in 1997: Linda Greenhouse, 1998 Pulitzer Prize journalist for New York Times wrote after Justice Brennan’s death in 1997: “But it was his 1970 opinion for the Court in Goldberg v. Kelly …that Justice Brennan appeared to cherish above all others. … The opinion proved to be a watershed of constitutional interpretation, a critical building block in what came to be known as the Due Process revolution. “But it was his 1970 opinion for the Court in Goldberg v. Kelly …that Justice Brennan appeared to cherish above all others. … The opinion proved to be a watershed of constitutional interpretation, a critical building block in what came to be known as the Due Process revolution.

42 Goldberg’s Influence Goldberg’s Influence Judge Henry J. Friendly in his 1975 article, “Some Kind of Hearing” wrote: Judge Henry J. Friendly in his 1975 article, “Some Kind of Hearing” wrote: Since [Goldberg] we have witnessed a due process explosion in which the Court has carried the hearing requirement from one new area of government action to another.… We have witnessed a greater expansion of procedural due process in the last five years than in the entire period since ratification of the Constitution.” Since [Goldberg] we have witnessed a due process explosion in which the Court has carried the hearing requirement from one new area of government action to another.… We have witnessed a greater expansion of procedural due process in the last five years than in the entire period since ratification of the Constitution.”

43 Goldberg’s Influence Goldberg’s Influence In December 2009, Hein Online listed the 50 Most-Cited Supreme Court Cases in law reviews and journals. In December 2009, Hein Online listed the 50 Most-Cited Supreme Court Cases in law reviews and journals. Goldberg v. Kelly was number 28 (5,639 citations). Goldberg v. Kelly was number 28 (5,639 citations). Not surprisingly, Chevron U.S.A. Inc. v. NRDC was number 20 (6,300 citations), but surprisingly Mathews v. Eldridge was number 42 (4,823 citations), and even more surprisingly Shapiro v. Thompson was number 19 (6,343 citation) beating Chevron. Not surprisingly, Chevron U.S.A. Inc. v. NRDC was number 20 (6,300 citations), but surprisingly Mathews v. Eldridge was number 42 (4,823 citations), and even more surprisingly Shapiro v. Thompson was number 19 (6,343 citation) beating Chevron.

44 Goldberg is “Good Law” Goldberg is “Good Law” Unquestionably Mathews v. Eldridge (1976) and subsequent cases signaled a retreat from Goldberg principles. Unquestionably Mathews v. Eldridge (1976) and subsequent cases signaled a retreat from Goldberg principles. But Goldberg v. Kelly ‘s holding in the welfare benefit context has not been overturned. But Goldberg v. Kelly ‘s holding in the welfare benefit context has not been overturned. Cesar A. Perales, Social Services Commissioner of New York State said in 1990, “the constitutional concept of due process is made real more than 75,000 times each year…. Perhaps the most dramatic proof of the institutional saturation of Goldberg precepts is that its protections, once considered radical, are now taken for granted.” Cesar A. Perales, Social Services Commissioner of New York State said in 1990, “the constitutional concept of due process is made real more than 75,000 times each year…. Perhaps the most dramatic proof of the institutional saturation of Goldberg precepts is that its protections, once considered radical, are now taken for granted.”

45 Wheeler’s Influence Wheeler’s Influence "Almost simultaneously, it seemed, with my appointment as Director by Governor Reagan, there began a series of court actions both state and national to challenge public welfare rules and regulations.... Here in California we have been challenged on dozens of issues, all of them coming back to the fact that for the first time, the poor had real and effective advocacy in our courts. This, again, is the significant point transcending all other considerations and consequences. An era of advocacy has begun out of which, I am sure, public assistance is never going to be the same. Not only is this happening through the courts, but also in the meetings and hearings of welfare boards, advisory commissions and administrators at every governmental level. The poor have come out of their apathy, and our accountability for what we do and why we do it is theirs to know - as it always has been under the law but never before so vocally sought.“ John Montgomery, California Director of Welfare, Calif. Welfare Director's Newsletter, Special Issue (vol. V, No. 6) p.3-4 (Nov.- Dec. 1969)

46 Goldberg is “Good Law” Goldberg is “Good Law” As “legacy operating systems” still run on computers out there, Goldberg‘s legacy also lives on outside the welfare context. As “legacy operating systems” still run on computers out there, Goldberg‘s legacy also lives on outside the welfare context. Agency practices adopted in response to Goldberg have never been changed to reflect current due process jurisprudence. Two examples: Agency practices adopted in response to Goldberg have never been changed to reflect current due process jurisprudence. Two examples: Snyder et al. v. Shearer 1982 Stipulation between Legal Services of Iowa and Iowa Department of Job Service requires Goldberg rights in unemployment initial fact-finding interviews. Snyder et al. v. Shearer 1982 Stipulation between Legal Services of Iowa and Iowa Department of Job Service requires Goldberg rights in unemployment initial fact-finding interviews. Driver’s License Point hearings in Colorado Hearing notice is sent out when driver exceeds point limit without any request by the driver for a hearing. Driver’s License Point hearings in Colorado Hearing notice is sent out when driver exceeds point limit without any request by the driver for a hearing.

47 Goldberg and Administrative Law Judiciary Finally, the due process requirement of an evidentiary hearing with the ten Goldberg rights played a part in the development of a professional, impartial, and independent administrative judiciary. Finally, the due process requirement of an evidentiary hearing with the ten Goldberg rights played a part in the development of a professional, impartial, and independent administrative judiciary.

48 Goldberg and Administrative Law Judiciary Four years after Goldberg v. Kelly, a group of hearing officers established the National Association of Administrative Hearing Officers, now called the National Association of Administrative Law Judiciary. Four years after Goldberg v. Kelly, a group of hearing officers established the National Association of Administrative Hearing Officers, now called the National Association of Administrative Law Judiciary. The preamble to the constitution drafted in 1974 states: The preamble to the constitution drafted in 1974 states: “We who are members of the profession charged with the duties and responsibilities of exercising judicial functions, do hereby join together and associate ourselves for the purpose of maintaining the highest professional standards and advocating improvements in the field of administrative law.” “We who are members of the profession charged with the duties and responsibilities of exercising judicial functions, do hereby join together and associate ourselves for the purpose of maintaining the highest professional standards and advocating improvements in the field of administrative law.”

49 Closing Words "Due process asks whether government has treated someone fairly, whether individual dignity has been acknowledged. If due process values are to be preserved in the bureaucratic state of the late 20th century, it may be essential that officials possess passion—the passion that puts them in touch with the dreams and disappointments of those with whom they deal, the passion that understands the pulse of life beneath the official version of events.” "Due process asks whether government has treated someone fairly, whether individual dignity has been acknowledged. If due process values are to be preserved in the bureaucratic state of the late 20th century, it may be essential that officials possess passion—the passion that puts them in touch with the dreams and disappointments of those with whom they deal, the passion that understands the pulse of life beneath the official version of events.” From Justice Brennan's 1987 speech on "Reason, Passion and the Progress of the Law" 10 Cardozo Law Review 3 (1988). From Justice Brennan's 1987 speech on "Reason, Passion and the Progress of the Law" 10 Cardozo Law Review 3 (1988).

50 Credits Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement


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