September 2002 Term
No. 30494
STATE OF WEST VIRGINIA EX REL. K. M., A MINOR CHILD,
v.
WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN
______________________________________________________
WRIT OF MANDAMUS
WRIT GRANTED AS MOULDED
Submitted: November 6, 2002
JUSTICE MAYNARD concurs in part and dissents in part and reserves the right to file a
separate opinion.
1. “A writ of mandamus will not issue unless three elements coexist: (1)
a clear legal right in the petitioner to the relief sought, (2) a legal duty on the part of
respondent to do the thing which the petitioner seeks to compel and (3) the absence of
another adequate remedy.” Syl. pt. 1, State ex rel. McLaughlin v. The West Virginia Court
of Claims, 209 W. Va. 412, 549 S.E.2d 286 (2001).
4. By
expressly including the office of Overseers of the Poor in Art. IX, § 2
of the West Virginia Constitution, the framers gave voice to the principle that
government has a moral and legal responsibility to provide for the poor. The
allocation of this responsibility rests with the Legislature, provided that
the support granted is not constitutionally insufficient.
McGraw, Justice:
I.
This case concerns what are commonly referred to as “welfare” benefits.
While “welfare” can mean many things, the term most commonly applies to cash assistance
from the government in the form of a monthly check. Through 1996, the federal and state
government provided this assistance through the Aid to Families with Dependent Children
(AFDC) program. In 1996, Congress passed the Personal Responsibility and Work
Opportunity Reconciliation Act and, in conjunction therewith, created the Temporary
Assistance to Needy Families (TANF) program. 42 U.S.C. 601 [1996], et seq. The new statutes represented
a general shift in policy, from one of indefinite eligibility for cash assistance,
to a system whereby assistance is paid to recipients for a limited period
of time in hopes of promoting self-sufficiency. Thus, Congress specified that
assistance under TANF was not an “entitlement” and that assistance
would terminate after 60 months (subject to certain extensions as determined
by the respective States). 42 U.S.C. 601(b); 42 U.S.C. 608(a)(7).
The TANF program is federally funded by way of block grants provided to the
States. With regard to West Virginia, the federal government provides an annual block grant,
which in recent years has been approximately $110 million (to be used in conjunction with
about $34 million in State funds). The States, however, have a considerable amount of
discretion to determine the eligibility criteria for assistance payments and to provide for
hardship extensions with regard to the 60-month termination rule. One certain requirement
in the federal statute is that the number of extensions or exceptions to the 60-month rule may
not exceed 20 percent of the average monthly number of families to which assistance is
provided by TANF funds. 42 U.S.C. 608(a)(7).
In West Virginia, the Office
of Family Support of the respondent West Virginia Department of Health and Human
Resources administers the TANF program. Specifically, the West Virginia counterpart
to TANF is known as the WV WORKS Act. W. Va. Code, 9- 9-1 [1996], et seq.
Currently, the respondents administer an assistance case load in excess of 14,000
families.
According to the respondent DHHR, TANF recipients are mailed notices in the
48th, 54th and 55th month to the effect that their assistance will terminate at the end of 60
months. At approximately the 55th month, the recipient, or his or her caseworker, may apply
to the DHHR's Office of Family Support Extension Committee for an extension of assistance
payments. If the Extension Committee denies an extension, the recipient may request a
reconsideration by the Committee. In addition, the recipient may request a hearing before
the Fair Hearing Examiner.
As stated above, petitioners,
K. M., a minor child, by her mother and next friend, Katerina M., et al.,
filed an original petition for a writ of mandamus in this Court on March 19,
2002. Thereafter, this Court entered a show cause order and appointed the
Honorable Daniel L. McCarthy, Senior Status Judge, as a Special Commissioner
in the case. In April and in June 2002, respondents DHHR and Secretary Nusbaum
filed responses denying that the petitioners were entitled to relief. Motions
filed by the petitioners (designed to preclude the termination of their monthly
checks) for a stay, an amended stay and for default judgment were denied by
this Court.
(See footnote 6)
One of the named petitioners, K. M., is an eight-year-old child living in
McDowell County with her mother, petitioner Katrina M. According to the petition, Katrina
M.'s family was one of the families in West Virginia to which notice was sent stating that
their assistance under the TANF and WV WORKS programs was about to terminate. While
the parties have supplied this Court with a wealth of information about the program and its
participants, we are still uncertain as to how many individuals have had their cash assistance
cut off to date. We would imagine that quite a large number of individuals or families would
have lost their cash assistance immediately after the five-year anniversary of the program
change, which would have occurred on January 1, 2002, for many. It appears logical to
presume that a majority of those with persistent obstacles to self-sufficiency would have been
receiving cash assistance continually throughout the first five years of the new program.
Thus it also appears logical to presume that the greatest percentage of such “hardship” cases
were all terminated, with respect to cash assistance payments under TANF, in the early
months of 2002.
For the specific petitioners in this case, the terminations were generally
scheduled to begin in January 2002. The termination notice, i.e., the 55th month notice
described above, stated in part:
As stated above, the petitioners sought relief in mandamus in this Court,
challenging the constitutional validity of the cut-off of their assistance, both substantively and procedurally. This Court referred the case to the Special Commissioner,
who conducted evidentiary hearings upon the petitioners' motion on June 11,
14 and 24, 2002.
(See footnote 8) So that we might put a human face on the
affected parties, we briefly review the Special Commissioner's findings of
fact.
Nevertheless, her request for an extension (based upon
disability) was denied by the Extension Committee. As the
Committee stated: “Although you and your husband have been
determined disabled, you have been repeatedly denied social
security benefits, S.S.I., and it appears unlikely you will be
approved within [the] requested extension period.” Ms. W.
appealed the denial of an extension, and a hearing was
conducted on February 20, 2002, at which Ms. W. testified. The
Fair Hearing Examiner upheld the decision of the Extension
Committee. In so ruling, the Examiner stated that “the
information submitted to the Committee was accurate.” The
termination of Ms. W.'s assistance did not affect her entitlement
to food stamps or to Medicaid benefits. Moreover, the family
remained eligible for a school clothing allowance.
After conducting these hearings, the Special Commissioner issued an order
entitled “Final Recommendations of the Special Commissioner,” released by this Court on
August 21, 2002. In this document, the Special Commissioner found that no “constitutional
right to welfare” exists in West Virginia, and that the petitioners did not have a property
interest in their cash assistance payments. However he also found that, “although there may
be no property interest in the assistance payments per se, the petitioners have established that
recipients have a vested or property interest in the adequacy and fairness of the extension
process.”
Ultimately he found fault with the procedure for conducting a hearing after an
applicant was denied an extension (which we discuss in greater detail, infra), and recommended that this Court order a modification of the hearing process
to give the Fair Hearing Examiner the authority to reverse or remand the Extension
Committee and authority to grant an extension, in appropriate cases, up to
the applicable limit. The Special Commissioner also recommended significant
changes to the hearing process,
(See footnote 10) and specifically suggested that DHHR
Our standard of review for original proceedings in mandamus is long established:
As respondents acknowledge, Congress made sweeping changes to this area
of the law with the passage of the 1996 Act, chief among them the specific pronouncement
that “No individual entitlement: This part shall not be interpreted to entitle any individual
or family to assistance under any State program funded under this part.” 42 U.S.C. § 601(b).
Similarly, our own Legislature provides that “(1) The entitlement of
any person to receive federal-state cash assistance is hereby discontinued”
W. Va. Code § 9-9-2 (2001). While reasonable minds may differ as to the
wisdom of this approach, clearly the Congress and the Legislature intended
a clear break with the past practice of providing cash assistance of unlimited
duration to the poor.
(See footnote 11)
Morever, petitioners' primary authority on this issue is inapposite, as Goldberg
was written before the 1996 Act and concerned rights under the old benefit scheme.
Therefore, in light of the specific dictates of the Congress and the Legislature, we must reject
petitioners' argument that a pre-termination hearing is required before ending TANF cash
assistance due to the expiration of the five-year time limit.
In support of the first part of this argument, petitioners suggest that the
existence of the office of “Overseer of the Poor” in the Constitution proves their point. That
section reads:
Research indicates that many
other states make some specific mention of the poor in their Constitutions,
including New York, Alabama, Mississippi, South Carolina, Texas, and Wyoming.
(See footnote 12)
We have noted before that a review of the Constitutions of other jurisdictions
can provide a rich source of interpretive guidance. See, Phillip
Leon M. v. Bd. of Educ. 199 W. Va. 400, 404, 484 S.E.2d 909, 913 (1996)
(finding education to be a fundamental constitutional right in West Virginia).
Petitioners provide us with
an informative review of constitutional and statutory provisions for dealing
with the poor dating from our own Constitution back through that of colonial
Virginia and even pre-colonial measures existing in English law.
(See footnote 13)
We agree
with the petitioners that: “'The fundamental principle in constitutional construction is that
effect must be given to the intent of the framers of such organic law and of the people who
ratified and adopted it.' State ex rel. Brotherton v. Blankenship, 157 W. Va. 100, 108, 207
S.E.2d 421, 427 (1973).” Syl. pt. 3, State ex rel. Rist v. Underwood, 206 W. Va. 258, 524
S.E.2d 179 (1999).
We note that the text of this provision does not so much declare the existence
of overseers of the poor or describe their duties, as it seems to presume that such an office
exists, and that each county would naturally have such officers, just as it would have a
coroner or a road surveyor. In support of the argument that the founders of the State took for
granted the notion that the State should care for the poor, petitioners point us to the case of
Wells v. Town of Mason, 23 W. Va. 456 (1884), in which this Court faced the question of
who should pay for the medical care of a pauper. The treating doctor had sued the town and
received a judgment, but the town refused to pay on the basis that the county had the duty to
pay.
Wells, at 462 (citations omitted).
(See footnote 14) It is clear that the issue before the Court
was not whether some governmental entity was responsible for paying the
pauper's doctor bill, but which entity should pay.
Respondent directs us to a case from the 1940's that concerned the transfer of
county funds to the State as a contribution toward the State's relief efforts for the poor, in
which the court stated in dicta: “There is nothing in our Constitution which imposes any duty
on the county court [now county commission] with respect to the care of the poor.” Kenny
v. County Court of Webster County, 124 W. Va. 519, 524, 21 S.E.2d 385, 387 (1942). The
Court considered whether Webster County had to transfer certain funds to the State to
reimburse the State for “relief funds” the State expended in Webster County. We believe that
the main thrust of the opinion in this case was that the State, and not the county, had the
ultimate responsibility to care for the poor. The only syllabus point issued by the Court
concerning the Constitution simply stated that a statute amending the “General Welfare Law
of 1936 is constitutional.” Id. at syl. pt. 1. While the Court made the above statement and
did quote outside authority to the effect that there is “no legal obligation at common law . .
. to furnish relief to paupers,” we do not believe these statements were
central to the case. To the extent that Kenny conflicts with our ruling
in this case, it is hereby distinguished.
(See footnote 15)
We also attach some significance to the fact that the code in effect between the
State's formation and the ratification of the 1872 Constitution stated that the “overseers of
the poor . . . shall assist any person who is unable to maintain himself or his family as his or
their necessities may require.” W. Va. Code, Chapter 46 (1870), p. 318. We also note that
this statute remained essentially unchanged when the Legislature recodified it after the 1872
Constitution. See, The Code of West Virginia, Chapter 80, p. 319 (1873).
What this suggests to us is that the framers of our State Constitution were
aware both in 1863 and 1872 of the longstanding existence of overseers of the poor in both
pre- and post-revolutionary Virginia. Just as we are aware today of their traditions, the State
constitutional framers were aware of the long history of State care for the poor from as long
ago as seventeenth-century England and up to the formation of West Virginia. It is
reasonable to presume that our State's founders simply continued the long-standing Virginia
policy and practice of employing overseers of the poor to provide subsistence for the needy. It cannot escape our notice
that many of the drafters of our Constitution and many of our State's early
leaders were deeply religious men who came from and lived in a less secular
culture shaped by traditional Christian principles of charity and concern
for the poor.
(See footnote 16) We have stated previously that the history
known to or experienced by the framers of the Constitution must play some
role in our interpretation of their words. As we stated after a discussion
of the history of the 1872 Constitution in another case:
For approximately the first 50 years of our State's existence, the overseers
continued to provide subsistence aid to the poor until the days of the Great Depression when
overwhelming numbers of needy caused the state and federal governments to play larger
roles in caring for the poor. However, the move to greater federal or State responsibility
merely shifted the administrative and fiscal focus from the counties to the State or nation as
a whole, but the operative principle that the public should not ignore or abandon the least
fortunate remains intact today.
The 1930's and the “New Deal” of President Franklin D. Roosevelt brought
sweeping changes to the “welfare” practices of the States and created many new programs
such as the Works Project Administration and the Civilian Conservation Corps. The focus
of the nation, and the State, was to help those in poverty so that poverty did not undermine
our society. The measure of success at that time was not necessarily determined by the
number of people who could be declared “off welfare:”
Franklin D. Roosevelt, Second Inaugural Address, Wednesday, January 20, 1937. Although
this notion seems increasingly out of vogue in our current climate, we nonetheless bear it in
mind in our consideration of this case.
Thus, in consideration of both history and our place in the governmental
scheme, we hold that, by expressly including the office of Overseers of the Poor in Art. IX,
§ 2 of the West Virginia Constitution, the framers gave voice to the principle that
government has a moral and legal responsibility to provide for the poor. The allocation of
this responsibility rests with the Legislature, provided that the support granted is not
constitutionally insufficient.
We believe it should go without saying that the public has a vital interest in
seeing that the poor are not destitute. We remark again that the great majority of those we
refer to as “poor” are children, who did not pick their parents or their circumstances. The
TANF program by its very name, Temporary Assistance to Needy Families, reinforces this
idea. What happens to these children
is of interest to every citizen of this State and every officer of government,
even though the poor have little in the way of a lobby.
(See footnote 17)
These children can be our future voters, workers, and decision makers, or if ignored,
our future drug addicts, inmates, and homeless.
(See footnote 18)
We can pay a little to help support them while they are young, or pay a lot
to prosecute, defend, and incarcerate many of them when they are older. Even
those who may not be moved by notions of charity should be moved by enlightened
self-interest, as the problems faced by, and presented by, the poor cannot
simply be wished away.
Having concluded that our Constitution does demand some degree of assistance
for the poor and needy, we turn to the second prong of petitioners' argument, that the
termination of cash assistance payments after five years violates this constitutional precept.
When we review the universe of assistance programs available to West
Virginia's poor, we are unable to say that a general policy of terminating cash assistance
payments to most recipients after five years violates the spirit of the above-described
constitutional concern for the poor. Thus we find that in the presence of other significant
assistance or support, the current practice of terminating cash assistance for most recipients
after five years, as provided for in West Virginia Code § 9-9-10 (2001), does not violate our
State Constitution.
The petitioners and their
amici make numerous attacks upon the validity of the extension process.
They maintain that: DHHR fails to give proper notice to those approaching
the five-year limit of their ability to apply for an extension; DHHR fails
to apply its own regulations fairly or consistently; DHHR fails to give proper
consideration to recipients who are the victims of domestic violence; the
federal government would allow DHHR to grant far more extensions; the six-month
limit for extensions established by DHHR is arbitrary, capricious, and in
excess of the Secretary's statutory authority; and the appeals process for
contesting the denial of an extension is flawed.
(See footnote 19)
If the Extension Committee denies an extension, the recipient may request a
reconsideration by the Committee. This appears to be of dubious value, in that the
Committee will have just denied the application. In addition, the recipient may request a
hearing before a Fair Hearing Examiner, however, “[t]he decision of the OFS Extension
Committee to approve or deny an extension is final and cannot be overturned by a Fair
Hearing decision, except when the decision was based on inaccurate information.” DHHR
TANF Manual, section 15.6 D.
What we glean from a reading of this provision is that no true right of appeal
exists within the agency. For example, if a pregnant recipient applies for an extension and
is denied because the Committee did not know that she was pregnant, then the Fair Hearing
Examiner probably could remand the case because the decision was based on inaccurate
information about the pregnancy
This sort of odd, nonsensical, and irrational result is not acceptable. We have
noted before that an important goal of any administrative scheme is “to guarantee the
rationality of the process through which results are determined” See Harrison v. Ginsberg,
169 W. Va. 162, 171, 286 S.E.2d 276, 281 (1982). The process for granting extensions that
is at issue in the instant case falls short of this goal. The Court's decision in Harrison was
an extension of its logic in another case dealing with the Board of Banking and its duties
under the State Administrative Procedures Act, W. Va. Code §§ 29A-1-1 et seq.
In that regard, this Court is of the opinion that, although there
may be no property interest in the assistance payments per se,
the petitioners have established that recipients have a vested or
property interest in the adequacy and fairness of the extension
process. In other words, inasmuch as this State has afforded
assistance recipients an opportunity to request extensions
beyond the 60 month limit and has put in place an Extension
Committee and a Fair Hearing process for that purpose,
recipients are entitled to an adjudication of their extension
requests in a manner consistent with the principles of due
process.
In his final order, the Special Commissioner directs our attention to the case
of Weston v. Cassata, 37 P.3d 469 (Colo. App. 2001), in which the Colorado Court of
Appeals examined the due process provided to recipients of the TANF program and its
counterpart, the Colorado Works Program Act. In that case, the court found that cut-off
notices sent out by the State of Colorado failed to provide the recipients with adequate due
process protection:
We believe that the current system fails its participants in this regard. As we
noted, section 15.6 D of the Manual states:
In many cases, this rule strips the “fair” out of the process, leaving
only a hearing, and one of dubious value.
(See footnote 21) We also concur with the Special Commissioner
that:
Accordingly we adopt the recommendations
of the Special Commissioner as to this aspect of petitioners' claims, and
direct the respondents to modify the Fair Hearing process to provide the Fair
Hearing Examiner with the authority to reverse or remand the decision of the
Extension Committee. The Fair Hearing Examiner shall be able to grant an extension,
in appropriate cases, up to the applicable limit, and the recipient seeking
an extension shall have the right to appear, with or without counsel, present
evidence and cross- examine adverse witnesses. Following the evidentiary hearing,
the Fair Hearing Examiner shall provide the recipient with a written decision
containing findings of fact, conclusions of law and notice concerning the
procedures for circuit court review.
(See footnote 23)
Only recipients who applied for and were denied an extension under the old
process are eligible for further consideration under our decision today. The respondent is
directed to inform such individuals of their rights under the “Fair Hearing” process as
modified by this opinion.
The amici suggest that as of the spring of 2002, the respondent had granted
only one such extension. Our experience with domestic violence and child abuse and neglect
cases suggest that this number is out of step with the actual number of TANF recipients who
are subject to such traumas. Also, as noted by the Special Commissioner:
Final Recommendations of the Special Commissioner. We do not believe that we
have sufficient factual development in this case to hold that the Secretary's
policies for granting extensions to victims of domestic violence or abuse
violate the letter or spirit of the state or federal legislation. However,
we urge the Secretary to take the special measures required by the federal
government to ensure that victims of domestic violence or abuse get extensions
when circumstances so demand.
(See footnote 24)
The federal law clearly contains
the 60-month lifetime limit mirrored in the State statute we have already discussed.
(See footnote 25)
In addition to the 60-month limit, the federal law contains penalties for non-compliance
with the limit.
(See footnote 26) However the federal statutes also allow
the State to provide extensions beyond this limit. The federal law establishes
what it calls a “hardship exemption,” and appears to permit up to
20 percent of the caseload to be exempt from time limits. We note that the statute
is silent with regard to time limitation for those who continue to receive cash
assistance under this exception:
The amici suggest that the respondent's policy of allowing only one extension
of up to six months, based on application to a State level committee and a predetermined list
of categories, is overly restrictive. They also note that as of January 2002, the WV WORKS
caseload was 14,694, TNF Provisional Cases, Individuals, Expenditures, West Virginia
Department of Health and Human Resources, July 2000, and that based on this caseload and
the 20 percent limit, nearly 2,950 families could be granted an extension to the time limits,
but that less than 30 had been granted at that time. They note that there is a striking contrast
between the potential number of recipients who could receive an extension and the actual
number of extensions granted.
However, we also recognize that the federal regulation in this area is detailed
and demanding, and that there are other programs and services that compete for DHHR's
funds and administrative resources. We are not prepared to hold today that the Secretary's
choice of a six-month time limit for extensions is “unduly restrictive and in conflict with the
legislative intent.” Nor are we prepared to say, with the factual development currently
available to us, that the correspondingly low number of extensions as a percentage of the
total allowed by federal law, merits some corrective action by this Court.
cease due to the passage of time. However, this issue is not moot because the petitioners are
challenging the legality of the system that resulted in the cessation of their benefits.
Furthermore, many other similarly situated people face the termination of their benefits in
the future. As we have often held:
A case is not rendered moot even though a party to the litigation
has had a change in status such that he no longer has a legally
cognizable interest in the litigation or the issues have lost their
adversarial vitality, if such issues are capable of repetition and
yet will evade review.
Three factors to be considered in deciding whether to address
technically moot issues are as follows: first, the court will
determine whether sufficient collateral consequences will result
from determination of the questions presented so as to justify
relief; second, while technically moot in the immediate context,
questions of great public interest may nevertheless be addressed
for the future guidance of the bar and of the public; and third,
issues which may be repeatedly presented to the trial court, yet
escape review at the appellate level because of their fleeting and
determinate nature, may appropriately be decided.
(1) that the recipient shall have the right to appear before the
Fair Hearing Examiner and present evidence and cross-examine
adverse witnesses, (2) that the recipient shall have the right to
appear before the Fair Hearing Examiner with or without
counsel or other representative and (3) that, following the
evidentiary hearing, the Fair Hearing Examiner shall provide the
recipient with a written decision containing findings of fact,
conclusions of law and notice concerning the procedures for
circuit court review.
numerous people who enjoy the far more affluent income of
(say) the modern trade union member or the intellectual . . .
Reform now concerns itself with the needs of people who are
relatively well-to-do-whether the comparisons be with their own
past or with those who are really at the bottom of the income
ladder. In consequence, a notable feature of efforts to help the
very poor is their absence of any very great political appeal.
The Extension Committee, however, limits its review to
documentary evidence, which includes documents from the
caseworker and any written statements from the recipient. See,
Goldberg, supra, noting that written submissions are an
unrealistic option for most recipients and that, “where credibility
and veracity are at issue, as they must be in many termination
proceedings, written submissions are a wholly unsatisfactory
basis for decision.” 397 U.S. at 269. Thus, the true fact finder
in the extension process is the Fair Hearing Examiner, before
whom the parties appear and an evidentiary hearing is
conducted. Yet, at that critical point in the process, the Fair
Hearing Examiner is powerless to change the result, and that
defect, in the opinion of this Court, constitutes a denial of the
petitioners' right to due process of law.
(9) Failure to comply with five-year limit on assistance
_____________
_____________
BY HER MOTHER AND NEXT FRIEND, KATRINA M., ET AL.,
INDIVIDUALLY AND AS CLASS REPRESENTATIVES
OF SIMILARLY SITUATED PERSONS,
Petitioners
RESOURCES AND PAUL NUSBAUM, SECRETARY,
Respondents.
_____________________________________________________
Filed: December 9, 2002
Larry L. Harless, Esq.
Cottageville, West Virginia
and
Daniel F. Hedges, Esq.
Mountain State Justice
Charleston, West Virginia
Attorneys for Petitioners
Darrell V. McGraw, Jr.
Attorney General
Katherine A. Campbell
Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondents
JUSTICE McGRAW delivered the Opinion of the Court.
2. “The
judiciary is the final authority on issues of statutory construction, and we
are obliged to reject administrative constructions that are contrary to the
clear language of a statute.” Syl. pt. 5, CNG Transmission Corp. v. Craig, 211 W. Va. 170, 564
S.E.2d 167 (2002).
3. “'The
fundamental principle in constitutional construction is that effect must be
given to the intent of the framers of such organic law and of the people who
ratified and adopted it.' State ex rel. Brotherton v. Blankenship, 157 W. Va. 100, 108, 207 S.E.2d
421, 427 (1973).” Syl. pt. 3, State ex rel. Rist v. Underwood, 206 W. Va. 258, 524 S.E.2d
179 (1999).
5. In
the presence of other significant assistance or support, the current practice
of terminating cash assistance for most recipients after five years, as provided
for in West Virginia Code § 9-9-10 (2001), does not violate our State Constitution.
6. “Inherent
in the republican form of government established by our State Constitution is
a concept of due process that insures that the people receive the benefit of
legislative enactments.” Syl. pt. 1, Cooper v. Gwinn, 171 W. Va.
245, 298 S.E.2d 781 (1981).
7. “While
the interpretation of a statute by the agency charged with its administration
should ordinarily be afforded deference, when that interpretation is unduly
restrictive and in conflict with the legislative intent, the agency's interpretation
is inapplicable.” Syl. pt. 5, Hodge v. Ginsberg, 172 W. Va. 17,
303 S.E.2d 245 (1983).
BACKGROUND
The length of time a participant may receive cash assistance
through the West Virginia works program shall be defined in the
personal responsibility contract: Provided, That no participant
may receive benefits for a period longer than sixty months,
except in circumstances as defined by the secretary.
W. Va. Code § 9-9-10 (1997) (emphasis added). Attendant to the statutory WV WORKS Act
is the respondent DHHR's WV Income Maintenance Manual. Section 15.6 of the Manual
is entitled “Lifetime Limit for Receipt of Cash Assistance” and provides for an extension of
the 60-month limit for up to six months. Specifically, section 15.6 C. sets forth nine grounds upon which a recipient may request an extension of monthly assistance. The
nine grounds include: (1) domestic battery, (2) providing care for a relative,
(3) inappropriate case management by the DHHR, (4) disability, (5) pregnancy,
(6) participation in vocational or educational training, (7) lack of child
care, (8) a high county unemployment rate and (9) the recipient is “unemployable.”
Thus, a limited hardship extension of up to six months, for the above reasons,
represents the current “circumstances as defined by the Secretary”
for exceeding the five-year time limit. The manual provides for an “Extension
Committee” that will review applications for extensions. The manual also
provides for a “Fair Hearing Examiner” who has very limited authority
to review the decisions of the committee, which we discuss at length below.
(See footnote 4)
With regard to the Fair Hearing
Examiner, section 15.6 D. of the Manual states: “The decision of the OFS
(See footnote 5) Extension
Committee to approve or deny an extension is final and cannot be overturned
by a Fair Hearing decision, except when the decision was based on inaccurate
information.” Thus the rules and regulations established by the Secretary
appear to give little or no authority to the Fair Hearing Examiner to reverse
the Committee, and appear to provide no option to extend any TANF recipient
beyond five years and six months, in any circumstance.
The petitioners describe themselves as families made up of one or more
children and one or both parents (or other adult caretaker) living in the same home. We are
well aware that as many as two/thirds of the individuals receiving aid under the TANF
program are children, and that our decision today has a substantial impact on their future.
As stated by the petitioners, the average family, consisting of two children and their mother, receives approximately $450 per month in assistance ($150 per person per month).
(See footnote 7) The
petitioners allege that they constitute a class of similarly situated persons
who were notified by the respondent Department of Health and Human Resources
that their monthly assistance checks would be terminated. As alleged by the
petitioners, at the time the Special Commissioner considered this case, 556
families had already been so notified. We are uncertain how many additional
families have reached the five-year cut off at this time.
Your WV Works check is going to stop. . . . Our records show
that you have received a check from DHHR for a total of 55
months. . . . Stopping your check will not automatically stop
your Food Stamps. . . . If you receive Medicaid, your medical
card will not be affected [.] . . . There is a small number of
families in extreme hardship situations who may temporarily
continue to receive a check after receiving benefits for 60
months. . . . [Y]ou may be considered for a temporary extension
of the 60 month time limit. . . . Only one temporary extension
is allowed for each family, and the extension may be for 1 - 6
months.
Attached to the 55th month termination notice was a form for the requesting
of an extension of the 60-month time limit, along with information about the extension
procedure and the nine grounds specified in the DHHR's WV Income Maintenance Manual
upon which requests for an extension may be based.
1. Recipient Sophia D.,
(See footnote 9) age
27, is a single parent living with her 5 year old daughter in publicly subsidized
housing in Mingo County. Ms. D. signed a number of DHHR documents including:
(1) a Personal Responsibility Contract, (2) a Self-Sufficiency Plan, (3) a
WV Works Orientation notice and (4) a number of Rights and Responsibilities
agreements. Among other things, those documents informed Ms. D. of the 60
month assistance limit. Ms. D.'s assistance checks in the amount of $401 per
month terminated in April 2002. During the period in question, Sophia D. suffered
from a number of health problems including chronic trouble with her spine,
a crushing injury to her ankle and clinical depression. In that regard, Ms.
D. was found to be incapacitated by a State medical review team. She applied
for S.S.I. benefits. Ms. D. has trouble paying her utility bills and is fearful
that, as a result, she will have to move from her
subsidized housing. Nevertheless, she was orally informed that
her request for an extension of her monthly assistance, based
upon disability, was denied by the Extension Committee. The
termination of her assistance did not affect her entitlement to
food stamps or to Medicaid benefits. Moreover, Ms. D.
remained eligible for transportation and clothing vouchers.
2. Recipient Monica L., age 25, lives with her three
children in McDowell County. As a result of flood damage to her home, Ms.
L. and her children were resettled in temporary housing provided by the federal
government. Ms. L. signed a number of DHHR documents including: (1) a Personal
Responsibility Contract, (2) a Self-Sufficiency Plan, (3) a WV Works Orientation
notice and (4) a number of Rights and Responsibilities agreements. Among other
things, those documents informed Ms. L. of the 60 month assistance limit.
Ms. L.'s assistance checks in the amount of $512 per month terminated in February
2002. There was no extension. During the period in question, Ms. L.'s primary
problems concerned lack of child care and lack of transportation. She obtained
midnight-shift employment but left that job because she was unable to secure
someone to watch her children. She received help from her parents, but health
problems precluded their continued involvement. Ms. L. indicated that the
Fair Hearing Process was never explained to her. The termination of Ms. L.'s
assistance did not affect her entitlement to food stamps or to Medicaid benefits.
3. Recipient Carlotta W., age 40, lives with her husband
and three children in Mercer County. Her husband is disabled and receives
S.S.I. benefits in the amount of $545 per month. Ms. W. signed a number of
DHHR documents including: (1) a Personal Responsibility Contract, (2) a Self-
Sufficiency Plan, (3) a WV Works Orientation notice and (4) a number of Rights
and Responsibilities agreements. Among other things, those documents informed
Ms. W. of the 60 month assistance limit. Ms. W.'s assistance checks in the
amount of $512 per month terminated in January 2002. During the period in
question, Ms. W. suffered from a number of health problems including depression
and trouble with her back and legs.
Final Recommendations of the Special Commissioner.
Given the limited number of recipients to be so renotified, the
financial impact upon the State of these recommendations
should be minimal. In any event, while the problem of
additional expense must be kept in mind, such expense would
not justify failing to modify the Fair Hearing process to conform
with fundamental rules of law. Kelly v. Wyman, 294 F.Supp.
893, 901 (S.D.N.Y. 1968), affirmed in Goldberg, supra.
Final Recommendations of the Special
Commissioner.
A writ of mandamus will not issue unless three elements
coexist: (1) a clear legal right in the petitioner to the relief
sought, (2) a legal duty on the part of respondent to do the thing
which the petitioner seeks to compel and (3) the absence of
another adequate remedy.
Syl. pt. 1, State ex rel. McLaughlin v. The West Virginia Court of Claims, 209 W. Va. 412,
549 S.E.2d 286 (2001); accord, syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.
Va. 538, 170 S.E.2d 367 (1969). We also note that with respect to agency regulations, “The
judiciary is the final authority on issues of statutory construction, and we are obliged to reject
administrative constructions that are contrary to the clear language of a statute.” Syl. pt. 5,
CNG Transmission Corp. v. Craig, 211 W. Va. 170, 564 S.E.2d 167 (2002).
Petitioners make several arguments, primary among them that the termination
of the TANF cash assistance payments without a pre-termination hearing amounts to a denial
of due process, and that certain provisions in our Constitution establish a State constitutional
right to subsistence. Petitioners also assert several instances where the Secretary has failed,
in their view, to administer to the program properly. We deal with each argument in turn.
A. Constitutional Concerns
1. No Constitutional Right to Pre-Termination Hearing
2. Constables, Coroners and Overseers of the Poor
There shall also be elected in each district of the county,
by the voters thereof, one constable, and if the population of any
district shall exceed twelve hundred, an additional constable,
whose term of office shall be four years, and whose powers as
such shall extend throughout their county. The assessor shall,
with the advice and consent of the county court, have the power
to appoint one or more assistants. Coroners, overseers of the
poor and surveyors of roads, shall be appointed by the county
court. The foregoing officers, except the prosecuting attorneys,
shall reside in the county and district for which they shall be
respectively elected.
West Virginia Constitution, Art. IX, § 2 (emphasis added.) Petitioners' basic argument is
that this provision was placed in the Constitution for a reason, and that accepting
respondent's argument (that no right to subsistence exists) would render this provision
meaningless, in that these officers named in the Constitution obviously must have some duty
to perform. We note briefly that, “[i]t is always presumed that the legislature will not enact
a meaningless or useless statute,” Syl. pt. 4, State ex rel. Hardesty v. Aracoma, 147 W. Va.
645, 129 S.E.2d 921 (1963), and that the same might be said for the Constitution.
As I understand the law, the duty of furnishing the necessary aid
and assistance to a pauper living in the town of Mason was
imposed on the overseers of the poor of Mason county, and the
support of such pauper is a charge on the county of Mason and
not on the town of Mason. All paupers in this State are under
our statute-law, as I understand it, to be supported by the several
counties and not by the town, in which they reside . . . .
The upshot of this discussion is that the men who drafted the
1872 Constitution, and who reinserted the Emoluments Clause
as contained in previous Virginia constitutions, came from this
background and lived in these times; the events of those days
were fresh in their memories when they forged our present
Constitution.
State ex rel. Rist v. Underwood, 206 W. Va. 258, 268, 524 S.E.2d 179, 189 (1999).
The test of our progress is not whether we add more to the
abundance of those who have much; it is whether we provide
enough for those who have too little.
Of course, today it is the Code, not the Constitution, that specifically describes
how it is that the poor shall receive assistance. While this Court may determine that the
Constitution requires certain actions, this Court does not have the power to provide funds or
execute those actions. This obvious distinction was also observed by the framers of the
United States Constitution, as we noted in a case concerning the budget for the judicial
branch of government:
In the early years of our democracy the people learned that the
legislative branch of the government had strength and power in
its control of revenues and appropriations. Hamilton noted this
in The Federalist No. 78 when he wrote:
“. . . The Executive not only dispenses the honors, but holds the
sword of the community. The Legislature not only commands
the purse, but prescribes the rules by which the duties and rights
of every citizen are to be regulated. The Judiciary, on the
contrary, has no influence over either the sword or the
purse. . . .”
State ex rel. Bagley v. Blankenship, 161 W. Va. 630, 638, 246 S.E.2d 99, 104 (1978).
However, at the same time, the acts of the legislative branch cannot, directly or indirectly,
dispense with constitutional requirements. See, State ex rel. McGraw v. Burton 212 W. Va.
23, 569 S.E.2d 99 (2002) (legislature may not reduce existence of a constitutional office to
a nullity).
We note that cash payments under the TANF program are only one aspect of
a multifaceted support system for the poor and needy in this State. In cooperation with the
federal government, the State provides housing assistance (see 42 U.S.C., Chapter 8),
medical benefits (see 42 U.S.C., Chapter 7), food stamps (see 7 U.S.C. 2012, et seq.), public
transportation or transportation assistance (see W. Va. Code § 9-9-9 and 49 U.S.C. 5311),
clothing assistance (see W. Va. Code 49-2D-8), educational or vocational programs (see
W. Va. Code § 9-9-3), and free public education for children (see W. Va. Const. Art. 12,
§ 1). Also, many recipients of cash assistance under the TANF program are eligible to
receive social security disability payments from the federal government. Many of these
programs are available to recipients for an indefinite period of time.
Next we consider whether the Secretary's current system of providing limited
extension to certain recipients is somehow violative of our Constitution. Having determined
this threshold issue that, in general, the five-year limit is not violative of constitutional
protections, we turn to the other arguments advanced by the petitioners concerning the way
in which the Secretary deals with extensions to the five-year limit.
When W. Va. Code, 29A-5-3 [1964] says: “Every final order or
decision rendered by any agency in a contested case shall be in
writing or stated in the record and shall be accompanied by
findings of fact and conclusions of law....” the law contemplates
a reasoned, articulate decision which sets forth the underlying
evidentiary facts which lead the agency to its conclusion . . . .
Syl. pt. 2, in part, Citizens Bank v. W. Va. Board of Banking and Financial Institutions, 160
W. Va. 220, 233 S.E.2d 719 (1977); accord, Muscatell v. Cline, 196 W. Va. 588, 598, 474
S.E.2d 518, 528 (1996). This Court explained further in Harrison that our reasoning in
Citizens Bank should be extended to the then-Department of Welfare (a forerunner of
DHHR), though at the time the Administrative Procedures Act did not bear directly on the
challenged actions in that case:
Our decision in Citizens Bank was premised upon the design of
administrative law to guarantee the rationality of the process
through which results are determined, and upon the necessity of
a record for appellate review. Although Citizens Bank dealt
with a decision under the Administrative Procedure Act, from
which the Department of Welfare is excluded, see State ex rel.
Ginsberg v. Watt, supra, we recently indicated in Monongahela
Power Company v. Public Service Commission, W. Va., 276
S.E.2d 179 (1981), that the principles of Citizens Bank are
clearly applicable to any administrative review. 276 S.E.2d at
182 n.4.
Harrison v. Ginsberg, 169 W. Va. 162, 171, 286 S.E.2d 276, 281 (1982). As the Special
Commissioner found, and we agree, though the petitioners have no property right in the
continuation of their cash assistance, they do have a due process right that the system set up
by DHHR will operate in a fair, reasonable, and logical fashion. As the Special
Commissioner stated:
Final Recommendations of the Special Commissioner. As this Court has held previously:
“Inherent in the republican form of government established by our State
Constitution is a concept of due process that insures that the people receive
the benefit of legislative enactments.” Syl. pt. 1, Cooper v. Gwinn,
171 W. Va. 245, 298 S.E.2d 781 (1981).
Although we agree that the “no entitlement” language modifies
the unconditional entitlement to welfare benefits previously
available under the AFDC program, we do not agree that it
vitiates all forms of property rights in welfare benefits. . . .
[T]he due process right under the new scheme is not “the
guarantee of getting the benefit,” but rather the guarantee that,
if and when the benefit is granted, the “government will employ
a decisionmaking protocol reasonably likely to yield correct
application of the legally relevant substantive criteria to the
individual case.” [citation omitted] . . . [B]ecause plaintiffs had
a property right, albeit not an unlimited one, in continued receipt
of welfare benefits, plaintiffs were constitutionally entitled to
procedural due process.
37 P.3d at 475, 477. We do not wish to engage in a detailed discussion of property rights
in this opinion; however, we stress that, while there is no absolute right to the receipt of cash
assistance payments in the presence of other meaningful support, once the State has
established a scheme for making such payments, the State's scheme must provide the
program participants with adequate due process protections.
The decision of the OFS Extension Committee to approve or
deny an extension is final and cannot be overturned by a Fair
Hearing decision, except when the decision was based on
inaccurate information.
The limited decision making
authority of the Fair Hearing Examiner, as described in section 15.6 D. of the
WV Income Maintenance Manual, conflicts with the principles expressed in the
above authorities and violates the petitioners' property interest in the adequacy
and fairness of the extension process.
Final Recommendations of the
Special Commissioner. (See footnote 22)
As we noted above, a writ of mandamus will not issue unless three elements
coexist: (1) a clear legal right in the petitioner to the relief sought, (2) a legal duty on the part
of respondent to do the thing which the petitioner seeks to compel, and (3) the absence of
another adequate remedy. Syl. pt. 1, State ex rel. McLaughlin v. The West Virginia Court of
Claims, 209 W. Va. 412, 549 S.E.2d 286 (2001); State ex rel. Damron v. Ferrell, 149 W. Va.
773, 776-77, 143 S.E.2d 469, 472 (1965). We believe that in this case, the petitioners are
entitled to relief in mandamus because they have demonstrated that the procedures at the Fair
Hearing level violate due process, and no remedy other than mandamus is adequate to correct
their problem.
We encourage States to give victims the assurance they need
that: (1) They will not be cut off assistance when they reach the
Federal time-limit if they still need assistance; and (2) they will
be able to return to assistance if the need recurs. Such
assurances are important because they will alleviate pressure on
victims to take steps that might jeopardize their personal or their
family's safety.
(Federal Register, April 12, 1999, 45 CFR Part 260, et al. Temporary Assistance for Needy
Families Program (TANF); Final Rule, p. 17746).
As the evidence revealed, the limited decision making authority
of the Fair Hearing Examiner may be especially problematic in
the context of domestic violence. “Domestic battery” is listed
as a ground for an extension under section 15.6 C. of the
Manual. In that regard, a recipient who would not have
personally appeared before the Extension Committee may wish
to further develop this ground before a Fair Hearing Examiner.
The Fair Hearing Examiner, however, would be unable to
change the result, and, at best, the recipient is left with a delay -
if the case is remanded to the Extension Committee for a
reconsideration.
(i) In general
The State may exempt a family from the application of
subparagraph (A) by reason of hardship or if the family includes
an individual who has been battered or subjected to extreme
cruelty.
(ii) Limitation
The average monthly number of families with respect to which
an exemption made by a State under clause (i) is in effect for a
fiscal year shall not exceed 20 percent of the average monthly
number of families to which assistance is provided under the
State program funded under this part during the fiscal year or the
immediately preceding fiscal year (but not both), as the State
may elect.
42 U.S.C. 608 (7)(C). This language provides the Secretary with two basic reasons for
granting an extension, either “hardship” or “extreme cruelty.” We have previously noted that
our state statute is also silent with respect to extensions of the basic five-year time limit.
It is clear that the Secretary has broad authority to conduct the State program,
however, we have held that:
While the interpretation of a statute by the agency charged with
its administration should ordinarily be afforded deference, when
that interpretation is unduly restrictive and in conflict with the
legislative intent, the agency's interpretation is inapplicable.
Syl. pt. 5, Hodge v. Ginsberg, 172 W. Va. 17, 303 S.E.2d 245 (1983). We must admit we are
not certain why the Secretary has chosen to limit all extensions to six months, and we agree
with petitioners that the number of extensions granted, as a percentage of the respondent's
total TANF caseload, is extremely low.
Footnote: 2
Footnote: 3
Footnote: 4
Footnote: 5
Footnote: 6
Syl. pt,1, State ex rel. M.C.H. v. Kinder, 173 W. Va. 387, 317 S.E.2d 150 (1984) (emphasis
added.). We have also often described our test for determining whether to address a moot
issue:
Syl. pt 1, Israel by Israel v. W. Va. Secondary Schools Activities Comm'n, 182 W. Va. 454,
388 S.E.2d 480 (1989).
Footnote: 7
Footnote: 8
Footnote: 9
Footnote: 10
Final Recommendations of the Special Commissioner.
Footnote: 11
Footnote: 12
Footnote: 13
Footnote: 14
Footnote: 15
Footnote: 16
There were eight ordained ministers at the 1861 Convention,
and several other delegates were well-known “exhorters,” or lay
preachers; and many other delegates were followers of the
minister delegates. Their role at the Convention was very
important. For the most part Methodist circuit riders and
sympathetic to abolitionism, they had preached the gospel of the
Union throughout northwestern Virginia for a decade.
Thomas Whitney Rodd, Tracing West Virginia's Constitution p. 29. We know that their
view of the world had significant impact on the Constitution. As is the case with most
religions, Christianity places an emphasis on care for the less fortunate, for example: “Verily
I say unto you, Inasmuch as ye have done it unto one of the least of these my brethren, ye
have done it unto me.” Matthew Chapter 25. This sort of notion no doubt played a large role
in the lives, and thoughts, of the constitutional framers.
Footnote: 17
Peter B. Edelman, the Next Century of Our Constitution: Rethinking Our Duty to the Poor,
39 Hastings L. J. 1, 31 n. 152
Footnote: 18
Footnote: 19
We note that the web site for the Bureau of Employment Programs indicates a 10.9 percent
unemployment rate for McDowell County as of October 2002. Amici suggest that this
number is artificially low because many of the unemployed have given up as hopeless the
search for work, and, incredibly, that many of the current recipients of TANF cash assistance
are actually counted among the employed, which further distorts the official numbers. This
causes us to question whether the respondent is granting as many extensions as might be
called for if unemployment figures more accurately reflected the reality faced by those
without work.
Footnote: 20
Footnote: 21
Footnote: 22
Footnote: 23
Footnote: 24
Footnote: 25
(7) No assistance for more than 5 years
(A) In general
A State to which a grant is made under section 603 of this title
shall not use any part of the grant to provide assistance to a
family that includes an adult who has received assistance under
any State program funded under this part attributable to funds
provided by the Federal Government, for 60 months (whether
or not consecutive) after the date the State program funded
under this part commences, subject to this paragraph.
42 U.S.C. 608 (7)(A)
Footnote: 26
If the Secretary determines that a State has not complied with
section 608(a)(7) of this title during a fiscal year, the Secretary
shall reduce the grant payable to the State under section
603(a)(1) of this title for the immediately succeeding fiscal year
by an amount equal to 5 percent of the State family assistance
grant.
42 U.S.C. 609 (a)(3).