Filed 10/9/03
CERTIFIED FOR PUBLICATION
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
LYUDMILA SHEYKO et al.,
C039132
(Sup.Ct.No. 00CS01130)
Plaintiffs and Appellants,
v.
RITA SAENZ, as Director, etc., et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Sacramento
County, Ronald B. Robie, J. Reversed with directions.
Legal Services of Northern California, Stephen E. Goldberg
and John F. Gianola; Coalition of California Welfare Rights
Organizations, Grace A. Galligher; and Cynthia AndersonBarker for Plaintiffs and Appellants.
Bill Lockyer, Attorney General, Charlton G. Holland, III,
Senior Assistant Attorney General, Frank S. Furtek and
Theodore Garelis, Deputy Attorneys General, for
Defendants and Appellants.
This case involves regulations issued by the California
Department of Social Services (Department) implementing the
Statewide Fingerprint Imaging System (SFIS) mandated by the
1
Legislature.
(Welf. & Inst. Code, § 10830; further unspecified
section references are to this code.)
The Legislature required
the Department to develop a system of electronic fingerprint
imaging of welfare applicants and recipients, to try to reduce
endemic fraud.
The Department implemented the legislation by
adopting regulations in its Manual of Policy and Procedures
(hereafter, Regs., § ____).
Plaintiffs (collectively, Sheyko)
sued to stop certain aspects of the system as adopted, claiming
the Department’s regulations exceeded statutory authority.
The
trial court ruled partly in Sheyko’s favor and issued a writ of
mandate commanding the Department to refrain from certain
practices, amend regulations and notify county welfare
departments about the judgment.
The Department appealed, and
Sheyko cross-appealed to pursue those of her claims which the
trial court rejected.
The Department has refined its case for the appeal.
The
trial court was not provided with the same arguments provided to
this court.
We conclude Sheyko fails to show the Department’s
regulations exceed statutory authority and we will reverse with
directions to enter judgment for the Department.
In particular, we conclude as follows:
(1) It is for the Legislature to determine whether a
particular welfare antifraud measure is or is not effective,
therefore Sheyko’s assertions that SFIS is ineffective should be
addressed to the Legislature, not the judiciary.
(2) Sheyko’s underlying assertions that her privacy or
religious freedoms are improperly impaired by SFIS lack merit.
2
(3) Because SFIS creates an eligibility requirement, we
reject Sheyko’s assertion that it impermissibly deters persons
from applying for aid and therefore undermines the Department’s
duty to maximize aid to all eligible recipients.
(4) The trial court correctly concluded that a person who
applies for aid on behalf of another person is an “applicant” as
defined by departmental regulations.
(5) The trial court correctly concluded that the Department
may not require nonapplicant, nonrecipient adults to be
fingerimaged in Food Stamp cases, but because the parties agree
the Department does not require this, the judgment, to the
extent it requires the Department to stop doing something it
does not do, and concedes it cannot do, must be reversed.
(6) The Department may require all parents, legal
guardians and caretaker relatives living in a CalWORKs household
to comply with SFIS, even if some of these people are not
themselves eligible for CalWORKs benefits in a given case.
(7) The trial court correctly concluded that the Department
may require the taking of photographs, in addition to
fingerimages, as part of the SFIS program.
(8) The trial court correctly concluded the Department may
require that all members of an aid group are deemed ineligible
when any member who must comply with SFIS does not comply.
(9) There is no material distinction between a person’s
“refusal” or “failure” to comply with SFIS: Because of the ease
of compliance and the many chances to comply before aid is cut
off, persons will not be cut off by innocently missing a couple
of SFIS appointments, and when a person persistently fails to
comply, he or she may be deemed to have refused to comply.
Further, because SFIS compliance is an eligibility requirement,
a person who has not complied is not yet eligible for aid.
(10) The SFIS regulations do not have an impermissible
retroactive effect on persons who were applicants before SFIS
was enacted but who are not themselves recipients of aid.
I.
Introduction.
Counties must “relieve” the needy, if necessary by general
relief.
(§ 17000; Hunt v. Superior Court (1999) 21 Cal.4th 984,
3
991; Mooney v. Pickett (1971) 4 Cal.3d 669, 676; see Arenas v.
San Diego County Bd. of Supervisors (2001) 93 Cal.App.4th 210,
215-217 (Arenas).
Two federal-state programs provide other
relief through counties: (1) the Food Stamp Act (FSA) and (2)
Temporary Assistance for Needy Families (TANF), or CalWORKs
(California Work Opportunity and Responsibility to Kids,
formerly Aid to Families with Dependent Children [AFDC]).
Department administers these programs.
The
(§ 10600; Fry v. Saenz
(2002) 98 Cal.App.4th 256, 259-260 [CalWORKs] (Fry); Aktar v.
Anderson (1997) 58 Cal.App.4th 1166, 1174 [FSA] (Aktar).)
A. Food Stamps.
“The Food Stamp Program was created by the Food Stamp Act
of 1964, 7 U.S.C. § 2011 et seq.
The purpose . . . was to
maintain adequate levels of nutrition and to strengthen the
nation’s agricultural economy.
[Citations.]
The Program is
jointly administered by the federal and state governments.”
(Aiken v. Obledo (E.D.Cal. 1977) 442 F.Supp. 628, 633; see
Annot., Food Stamp Eligibility (1994) 118 A.L.R.Fed. 473, 485, §
2.)
The FSA speaks of “participation by households” (7 U.S.C. §
2014(b)) and eligibility “is determined on a household, rather
than an individual, basis.”
(Food Stamp Eligibility, supra, 118
A.L.R.Fed. at p. 485, § 2, fns. omitted; see Lyng v. Castillo
(1986) 477 U.S. 635, 636 [91 L.Ed.2d 527, 531].)
California maximizes its participation in the program by
statute:
“The eligibility of households shall be determined to
the extent permitted by federal law.”
Obledo, supra, 442 F.Supp. at p. 636.)
4
(§ 18901; see Aiken v.
A federal statute partly
defines “Household” to mean “(A) an individual who lives alone
or who, while living with others, customarily purchases food and
prepares meals . . . separate and apart from the others, or (B)
a group of individuals who live together and customarily
purchase food and prepare meals together . . . .”
§ 2012(i); see 7 C.F.R. § 273.1; Regs., § 63-402.)
(7 U.S.C.
The FSA uses
the “household” definition to reduce fraudulent claims, e.g., by
multiple members of one “household.”
(Steinberg v. U.S. Dept.
of Agriculture (E.D.N.Y. 1984) 613 F.Supp. 432, 433-435.)
B. CalWORKs.
“CalWORKs provides aid and services to families with
related children under 18 whose parent or parents cannot support
them due to death, incapacity, incarceration, unemployment, or
continued absence from the home.”
(Fry, supra, 98 Cal.App.4th
at p. 260; see Arenas, supra, 93 Cal.App.4th at p. 213
[discussing federal Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, known as the Welfare Reform Act].)
As we recently observed, CalWORKs reflects the legislative
judgment that “‘the family unit is of fundamental importance to
society in nurturing its members, passing on values, averting
potential social problems, and providing the secure structure in
which citizens live out their lives.
Each family unit has the
right and responsibility to provide its own economic security by
full participation in the work force to the extent possible.
. . .’
(§ 11205.)
With these aims in mind, ‘[e]very county
. . . shall administer [CalWORKs] in such a manner as to achieve
the greatest possible reduction of dependency and to promote the
5
rehabilitation of recipients.’”
(Fry, supra, at pp. 265-266;
see Vaessen v. Woods (1984) 35 Cal.3d 749, 755.)
a similar statement of purpose.
TANF contains
(Fry, supra, 98 Cal.App.4th at
p. 266, fn. 5; see Dozier v. Williams Co. Soc. Serv. Bd. (N.D.
1999) 603 N.W.2d 493, 495.)
In like manner as FSA is granted to “households,” CalWORKs
aid is “granted . . . to families with related children under
the age of 18 years” as specified and with exceptions not here
relevant.
(§ 11250, italics added; see County of San Diego v.
Lamb (1998) 63 Cal.App.4th 845, 848-849 (Lamb); § 11450 [“Aid
shall be paid for each needy family . . . .”].)
The federal
purpose “is to increase the flexibility of States in operating a
program designed to — (1) provide assistance to needy families
so that children may be cared for in their own homes or in the
homes of relatives; (2) end the dependence of needy parents on
government benefits . . . ; (3) prevent and reduce [out-of
wedlock pregnancies]; (4) encourage the formation and
maintenance of two-parent families.”
(42 U.S.C. § 601; see
Mitchell v. Swoap (1973) 35 Cal.App.3d 879, 884 [construing
prior analogous statutory language; “‘The very title of the
program, the repeated references to families . . . and the words
of the preamble . . . show that Congress wished to help children
through the family structure. . . .
From its inception the Act
has defined “dependent child” in part by reference to the
relatives with whom the child lives,’” quoting Dandridge v.
Williams (1970) 397 U.S. 471, 479 [25 L.Ed.2d 491, 498].)
In
some sense it may be said that “[t]he reference point of the
6
statute is the deprived child” (Hypolite v. Carleson (1973) 32
Cal.App.3d 979, 983-984; see Lamb, supra, 63 Cal.App.4th at p.
849) inasmuch as families without eligible children are not
eligible.
(Cf. Fry, supra, 98 Cal.App.4th at pp. 263-264; see
Darces v. Woods (1984) 35 Cal.3d 871, 881 [“under usual
circumstances, the AFDC family unit will consist of at least two
categories of individuals: the dependent child and the caretaker
relative”] (Darces).)
But the focus is on the family, as the
new name (Temporary Assistance for Needy Families) suggests.
(See, e.g., CalWorks Manual (Western Center on Law & Poverty,
www.wclp.org) ch. 2(A) (CalWorks Manual) [“CalWORKs aid . . . is
not available to every person who happens to be poor, or even to
every poor family with children.
It is a program for poor
families who also meet certain other requirements”].)
Like the FSA aids households rather than individuals,
CalWORKs aids families.
Accordingly, to determine needs-based
eligibility, “The income of the natural or adoptive parent, and
the spouse of the natural or adoptive parent, and the sibling of
an eligible child, living in the same home with an eligible
child shall be considered available, in addition to the income
of an applicant for or recipient of aid under [AFDC] for
purposes of eligibility determination and grant computation.”
(§ 11008.14; see Regs., §§ 40-118.1-.2.)
These family members
comprise the CalWORKS “filing unit,” “the group of persons
required to be on the Statement of Facts,” or SAWS 2 (Regs.,
§§ 80-301(f)(1); 40-115.22) which is filled out at the time of
the initial application (SAWS 1) and yearly reapplications.
7
An “applicant” is “a person who requests aid or a person on
whose behalf a request for aid is made.”
80-301(a)(7).)
(Regs., §
“An [AFDC] application is a request for aid in
writing made to the county welfare department on the SAWS 1
either by the applicant or on his or her behalf.”
40-103.4.)
AFDC.”
(Regs., §
An AFDC “recipient” is “a person who is receiving
(Regs., § 80-301(r)(1).)
“A person becomes a
‘recipient’ on the date on which both of the following
conditions are met: [¶] 1. the person meets all conditions of
eligibility, and [¶] 2. the county [approves the application].”
(Id., italics added.)
C. Statewide Fingerprint Imaging System (SFIS).
Some people seek more relief than they are entitled to by
using different identities in their county or by applying for
relief in more than one county.
To prevent this type of welfare
fraud, some states fingerprint recipients each time they collect
benefits.
Many recipients laud such antifraud efforts, which
can restore integrity to the welfare system and increase
benefits for those who need help.
(See Luna, Welfare Fraud and
the Fourth Amendment (1997) 24 Pepperdine L.Rev. 1235, 1250; see
Note, Welfare Policy (1995) 109 Harv.L.Rev. 1168, 1170-1173.)
Biometric identification is described in Finger Imaging:
21st Century Solution to Welfare Fraud at our Fingertips (1995)
22 Fordham Urb. L.J. 1327, at pages 1333-1335 (Finger Imaging):
“Finger imaging is part of a field of science called
biometrics. Biometrics involves the scanning or
recording of some unique personal characteristic, . . .
8
A
against a verified database for positive identification.
. . . In finger imaging, the technology converts a
fingerprint into a highly detailed and exact electronic
image that a computer can interpret and compare to other
images. . . . [¶] . . .
“To begin the finger imaging process, each individual
places his/her right and left index fingers on the
scanning device so that the software may convert the
minutiae of the finger into a numeric algorithm for
storage and matching purposes. The scanner generates a
digitized print and triggers a computerized photograph
of the client that is easily and instantly available for
reference and indicates whether the client is currently
receiving public assistance within the scope of the
database or has applied anywhere else within the scope
of the database. A positive match indicates . . . that
the client is already in the system and insures that the
applicant is denied a duplicate check. [Fns. omitted.]”
The impetus for the SFIS legislation and regulations is
reflected in documents Sheyko submitted to the trial court.
In
a “Final Statement of Reasons” the Department explained how it
developed antifraud identification measures to “[restore]
integrity to welfare programs in California.”
A pilot program
in Los Angeles County reportedly proved successful (see
Automated Fingerprint Identification Systems: Issues And Options
Surrounding Their Use To Prevent Welfare Fraud (1995) 59 Alb. L.
Rev. 399, 400), and section 10830 was passed.
The Department
partly stated photographs would help “resolve [discrepancies]
and ensure the integrity of the match results.
The [program] is
consistent with the [TANF] State Plan which contains a
certification that the state has established standards and
procedures to ensure against program fraud and abuse.”
9
The Legislature saw fit to enact two sections each numbered
10830 in the Welfare and Institutions Code, one in chapter 4.2
(Stats. 1997, ch. 627, § 2) which we disregard here because it
relates to an entirely different subject, and the one at issue,
in chapter 4.6 (Stats. 1996, ch. 206, § 1.5, eff. July 22,
1996).
Our use of “section 10830” refers to the latter.
Section 10830 provides in part as follows:
“(a) The department . . . shall design, implement, and
maintain a statewide fingerprint imaging system for use
in connection with the determination of eligibility for
[FSA and AFDC benefits, but not foster care benefits].
“(b)(1) Every applicant for, or recipient of, aid under
[AFDC or FSA], other than dependent children or persons
who are physically unable to be fingerprint imaged,
shall, as a condition of eligibility for assistance, be
required to be fingerprint imaged.
“(2) A person subject to the requirements of paragraph
(1) shall not be eligible for [AFDC or FSA] until
fingerprint images are provided, except as provided in
subdivision (e). Ineligibility may extend to an entire
case of any person who refuses to provide fingerprint
images.
“(c) The department may adopt emergency regulations to
implement this section . . . .
“(d) All persons required to be fingerprint imaged
pursuant to this section shall be informed that
fingerprint images obtained pursuant to this section
shall be used only for the purpose of verifying
eligibility and preventing multiple enrollments in [AFDC
or FSA]. The department, county welfare agencies, and
all others shall not use or disclose the data collected
and maintained for any purpose other than the prevention
or prosecution of fraud. Fingerprint imaging information
. . . shall be confidential . . . .
“(e)(1) Except as provided in paragraph (2), the
fingerprint imaging required under this chapter shall be
scheduled only during the application appointment or
other regularly scheduled appointments. No other special
appointment shall be required. No otherwise eligible
individual shall be ineligible to receive benefits under
10
this chapter due to any technical problem occurring in
the fingerprint imaging system or as long as the person
consents to and is available for fingerprint imaging at a
mutually agreed upon time, not later than 60 days from
the initial attempt to complete fingerprint imaging.
“(2) During the first nine months following
implementation, recipients may be scheduled for separate
appointments to complete the fingerprint imaging required
by this section. Notice shall be mailed . . . to
recipients at least 10 days prior to the appointment, and
shall include procedures for the recipient to reschedule
the scheduled appointment within 30 days.
“(f) If the fingerprint image of an applicant or
recipient of aid to which this section applies matches
another fingerprint image on file, the county shall
notify the applicant or recipient. In the event that a
match is appealed, the fingerprint image match shall be
verified . . . prior to the denial of benefits. . . .”
We here emphasize two provisions: (1) the Department must
implement a fingerprint imaging “system”; and (2) compliance is
“a condition of eligibility” for “[e]very applicant for, or
recipient of, aid” except dependent children and those physically
unable to comply.
(§ 10830, subds. (a) & (b)(1).)
“As a condition of eligibility, persons listed in Section
40-105.32 must supply through the SFIS two fingerprint images
and a photo image at the time of application.
Failure to
provide the required images will result in ineligibility for the
entire assistance unit [AU].”
(Regs., § 40-105.31.)
following must comply if physically able:
The
(1) each parent or
caretaker relative “of an aided or applicant child when living
in the home of the child”; (2) each parent or caretaker relative
“receiving or applying for aid on the basis of an unaided
excluded child”; (3) each aided or applicant adult; and (4) the
11
“aided or applicant pregnant woman in an AU consisting of the
woman only.”
(Regs., § 40-105.324.)
The data is confidential
and used to and only to prevent fraud.
(Regs., § 40-105.34.)
The record shows the Department provides for emergency aid
(CalWORKs “Immediate Need” or FSA “Expedited Service” or both)
and only those individuals who apply in person have to comply
with SFIS before such emergency aid is given.
II.
Standard of Review.
Whether the statute supports the regulations presents a
question of law, reviewed de novo.
(Fry, supra, 98 Cal.App.4th
at p. 262; Arenas, supra, 93 Cal.App.4th at pp. 214-215.)
Sheyko must show the regulations are invalid.
(Tomlinson
v. Qualcomm, Inc. (2002) 97 Cal.App.4th 934, 940-941.)
Because
of the agency’s expertise, its view of a statute or regulation
it enforces is entitled to great weight unless clearly erroneous
or unauthorized.
(See Californians for Political Reform
Foundation v. Fair Political Practices Com. (1998) 61
Cal.App.4th 472, 484.)
Where the Legislature sets policy and
fixes standards, the agency may “‘fill up the details’” via
regulations.
(Physicians & Surgeons Laboratories, Inc. v.
Department of Health Services (1992) 6 Cal.App.4th 968, 982.)
As we recently summarized (Communities for a Better
Environment v. California Resources Agency (2002) 103
Cal.App.4th 98, at pages 108-109 (fns. omitted)):
“Government Code section 11342.2 [states ‘no] regulation
adopted is valid or effective unless [1] consistent and
12
not in conflict with the statute and [2] reasonably
necessary to effectuate the purpose of the statute.’
“[First,] the judiciary independently reviews the
administrative regulation for consistency with
controlling law. The question is whether the regulation
alters or amends the governing statute or case law, or
enlarges or impairs its scope. . . . This is a question
particularly suited for the judiciary as the final
arbiter of the law, and does not invade the technical
expertise of the agency. [Fns. omitted.]
“[Second, reasonable necessity] generally does implicate
the agency’s expertise; therefore, it receives a much
more deferential standard of review. The question is
whether the agency’s action was arbitrary, capricious, or
without reasonable or rational basis. [Fns. omitted.]”
A regulation may interpret or make specific a statutory
scheme, but it cannot impede the force of the statute.
(Caldo
Oil Co. v. State Water Resources Control Bd. (1996) 44
Cal.App.4th 1821, 1827 (Caldo).)
We do not defer to the
Department about whether its regulations lie within the scope of
authority delegated by statute.
(Yamaha Corp. of America v.
State Bd. of Equalization (1998) 19 Cal.4th 1, 11, fn. 4.)
The Department partly defends SFIS by pointing out that
TANF requires California to assure the federal government that
it has a fraud detection system in place.
(See 42 U.S.C. §
602(a)(6); 7 U.S.C. § 2020(e)(22); 7 C.F.R. § 272.4(e)(1).)
But
TANF and FSA allow states to tailor rules within the bounds of
federal law (see Aiken v. Obledo, supra, 442 F.Supp. at p. 636
[FSA]; Daniels v. McMahon (1992) 4 Cal.App.4th 48, 51-52 [AFDC]
(Daniels)) and federal approval of the SFIS regulations would
not amend section 10830.
(See Caldo, supra, 44 Cal.App.4th at
13
pp. 1829-1831.)
In other words, federal approval of state
regulations does not make the regulations valid under the state
law, i.e., consistent with the state enabling statutes.
III.
Background Contentions
The appellate briefs touch on three points invoked earlier
in the case.
We discuss these points to provide background to
the points explicitly headed and argued on appeal.
A.
Effectiveness of SFIS.
Pointing to newspaper articles and the like, Sheyko asserts
the SFIS statutory scheme results in a net monetary loss and
deters the needy from seeking benefits.
(See, e.g., Sacramento
Bee (Jan. 21, 2003) Fingerprint Failure, p. B6.)
She claims
many immigrants fear compliance will result in persecution and
therefore will not apply for benefits which their children need.
But, as is typical with social policy issues, there are contrary
studies which indicate such programs can be fair and efficient.
(See Finger Imaging, supra, 22 Fordham Urb. L.J. at pp. 1331,
1361-1362.)
The record shows the United States Department of
Agriculture, the body with oversight over the FSA, stated in a
written Administrative Notice (No. 96-13) that it believes
“Matching fingerimages can be a useful method to prevent an
individual from participating more than one time in a given
month by using more than one identity.”
These competing policy views illustrate why the judiciary
is not in the best position to craft efficient relief laws.
That onerous task is “properly resolved on the other side of
Tenth Street, in the halls of the Legislature.”
14
(Osborn v.
Hertz Corp. (1988) 205 Cal.App.3d 703, 711 [it is the
Legislature, not the judiciary, that possesses the power to make
laws”].)
Our job is to
review “the legality of the regulations
[and statutes], not their wisdom.”
(Morris v. Williams (1967)
67 Cal.2d 733, 737.)
B.
Privacy and Religious Freedom.
Sheyko views fingerimaging as an invasion of privacy and
personal dignity, and invokes the specter of 1984. But the
Legislature could rationally find welfare recipients are no more
stigmatized by fingerimaging than are driver’s license
applicants, lawyers, accountants and many others.
(See
Automated Fingerprint Identification Systems, supra, 59 Alb. L.
Rev. at pp. 403-409; Finger Imaging, supra, 22 Fordham Urb. L.J.
at pp. 1334-1335, 1345-1346.)
Sheyko pleaded that fingerprint imaging “is a mark of the
devil and stains the soul with sin.”
But the United States
Supreme Court has rejected religious freedom objections to the
use of social security numbers to reduce welfare fraud:
“No one
can doubt that preventing fraud in these benefits programs [AFDC
and FSA] is an important goal.”
(Bowen v. Roy (1986) 476 U.S.
693, 709 [90 L.Ed.2d 735, 751].
And the California Supreme
Court has rejected privacy claims about the use of
fingerprinting for driver’s licenses, again, because of the need
to deter fraud.
(Perkey v. Department of Motor Vehicles (1986)
42 Cal.3d 185, 190-191.)
The New York courts have rejected the
claim that a relief applicant may refuse to give fingerimages on
religious grounds.
(Matter of Medvedev v. Wing (1998) 671
15
N.Y.S.2d 806 [249 App.Div.2d 755]; Matter of Buchanan v. Wing
(1997) 664 N.Y.S.2d 865 [245 App.Div.2d 634] (Buchanan).)
Based
on the above authorities, so do we.
C.
Weakening the Safety Net.
Sheyko suggests that to the extent fingerimaging deters any
eligible person to apply for aid, the Department undermines its
duty to provide aid to the needy.
For example, the Department
must administer assistance in a way which will achieve program
purposes without violating the privacy or dignity of applicants.
(§ 10500; Regs., § 40-101.1.)
A similar claim was rejected in
New York, where the state constitution requires providing for
the needy:
“Since petitioners cannot be classified as needy
until such time as they are finger imaged to determine whether
they are receiving duplicate benefits, no violation of this
constitutional provision has been stated.”
(Buchanan, supra,
664 N.Y.S.2d at p. 867 [245 App.Div.2d at pp. 636-637].)
In New
York, as in California, finger imaging is a condition of
eligibility.
(Id. at p. 867, fn. 3 [245 App.Div.2d at p. 636];
see § 10830, subd. (b)(1).)
Hortatory commands that the
Department maximize aid cannot override explicit limitations on
aid.
As stated in the context of pension legislation, which
must be liberally construed, a court cannot “eradicate the clear
language and purpose of the statute and allow eligibility for
those for whom it was obviously not intended.”
of Retirement (1974) 36 Cal.App.3d 815, 822.)
16
(Neeley v. Board
IV.
Discussion
The trial court issued a detailed written decision.
Although we review the trial court’s ruling, and not its
reasoning (Schabarum v. California Legislature (1998) 60
Cal.App.4th 1205, 1216), we find it helpful to address each
point with reference to the trial court’s decision.
A.
“Applicant for . . . aid.”
The trial court found that a person who applies on behalf
of another person is an “applicant” as follows:
“The court concludes that the phrase ‘applicant for
. . . aid’ in . . . section 10830, subdivision (b)(1) is
reasonably and logically construed to include a person
who applies for aid on behalf of a dependent, minor or
otherwise incompetent recipient. A minor child does not
request aid on his or her own. Therefore the request
must be filed by a parent or caretaker. The person who
requests the aid is an applicant, as well as the child
for whom a request for aid is made is an applicant. ‘To
apply’ is to make a formal request; it is the same even
though the recipient is someone else.”
We agree.
Non-SFIS regulations define an “applicant” as “a
person who requests aid or a person on whose behalf a request
for aid is made.”
(Regs., § 80-301(a)(7).)
To “apply”
generally means to “make a formal request or petition, usually
in writing” (Black’s Law Dict. (6th ed. 1990) p. 99, col. 1)
and, hence, the person filling out the form is an “applicant.”
Sheyko points to another regulation by which the Department
defines an “application” for CalWORKs as “a request for aid
17
. . . either by the applicant or on his or her behalf.”
§ 40-103.4.)
(Regs.,
Because this section distinguishes between “the
applicant” and the person applying “on his or her behalf,”
Sheyko reasons that the person filing the application is not an
applicant.
Although this regulation draws the posited
distinction, it does not change the definition of “applicant” as
“a person who requests aid or a person on whose behalf a request
for aid is made.”
(Regs., § 80-301(a)(7).)
Sheyko’s proposed
definition would mean that no parent in a child-only-eligible
family would be an applicant, opening a loophole for fraud.
The SFIS regulation pertaining to FSA only cases states:
“Authorized representatives are not required to comply with
[SFIS] unless no household member . . . is required or able to
comply . . . .”
(Regs., § 63-601.14.)
Sheyko reasons that
because “authorized representative” is not used in section
10830, the regulation lacks support.
She faults the Department
for instructing county welfare offices in an All County Letter
to treat ineligible parents in FSA-only cases as de facto
authorized representatives:
“[Q.]
For FS only cases where the
only eligible household member is a minor, who is required to
comply with [SFIS]?
[A.]
[Regs., §] 63-601.12 requires
‘eligible’ adult household members to [comply.]
However, if the
eligible FS household does not contain adult members and there
is no designated authorized representative, an excluded parent
or step-parent, applying on behalf of the minor child(ren),
should be fingerprint/photo imaged as the [de facto] authorized
18
representative for the minor child(ren) in the household under
[Regs., §] 63-601.14.”
In Sheyko’s view, “By this sleight of hand, [the
Department] has changed a regulation which forbids applying SFIS
to ineligible parents in Food Stamp[-]only cases to a directive
that mandates applying SFIS to ineligible parents.”
But, as the
trial court concluded, an “‘applicant for . . . aid’ . . . is
reasonably and logically construed to include a person who
applies for aid on behalf of a dependent, minor or otherwise
incompetent recipient.
his or her own.”
A minor child does not request aid on
In Food Stamp-only cases, even if the parent
is ineligible, by requesting foodstamps for the child, the
ineligible parent is an applicant.
Sheyko also contends the trial court wrongly treated
ineligible parents and caretaker relatives to be “recipients,”
because a “recipient” is, e.g., “‘a person who is receiving
AFDC’” and ineligible persons cannot receive benefits.
§ 80-301(r)(1).)
Parents or legal caretakers of children who
receive aid also “receive” aid.
minor children.
(Regs.,
Parents have a duty to care for
(Fam. Code, § 3900; Regs., § 43-105.)
So do
legal caretakers, who eponymously have the legal duty to care
for the children in their charge.
(See Regs., § 80-301(c)(1)(A)
& (B) [caretaker lives with child in filing unit and “Exercises
responsibility for the day-to-day care and control of the
child”]; see Darces, supra, 35 Cal.3d at p. 896 (conc. opn. of
Kaus, J.); 45 C.F.R. § 233.90(c)(v)(B).)
We agree with the
Department that to the extent the government aids the children,
19
it relieves parents and caretakers of their obligations.
(See
County of San Luis Obispo v. Nathaniel J. (1996) 50 Cal.App.4th
842, 844-846; County of Shasta v. Caruthers (1995) 31
Cal.App.4th 1838, 1841.)
Moreover, parents and caretakers
literally receive the aid to be expended on behalf of children.
Children cannot negotiate relief checks or receive foodstamps on
their own.
Foreign cases cited by Sheyko shed no light on these
California rules.
(See Solman v. Shapiro (D.Conn. 1969) 300
F.Supp. 409, 414, affd., sub nom. Shapiro v. Solman (1969) 396
U.S. 5 [24 L.Ed.2d 5] [interplay of federal and Connecticut
laws]; State, Dept. of Inst., Soc. & Rehab. Serv. v. Brown
(Okla. 1975) 532 P.2d 839, 842 [Oklahoma disability statute].)
B.
Other Adults.
The trial court amplified its conclusion regarding who
qualifies as an applicant as follows:
“The court does not expand this construction to other
persons in the home who are not recipients of aid.
Other persons in the home do not have to be
fingerprinted and photographed unless they are
recipients of aid or applicants for aid under the
interpretation the court has approved.”
The judgment requires the Department “To refrain from
requiring that parents and caretaker relatives who are not
applying for or receiving [aid] for themselves be finger imaged
and photo imaged as a condition of eligibility for benefits for
other members of the family when another parent or caretaker
20
relative in the family is applying for or receiving [aid] and
has been finger imaged and photo imaged.”
This portion of the judgment requires a separate analysis
of its impact on FSA and CalWORKs cases.
1.
Multiple Adults in FSA cases.
The Department states it does not require more than one
adult in child-only FSA cases to be fingerimaged: “If the
parents are not themselves eligible for aid, and the dependent
children are eligible for, and form a, Food Stamp household, but
are not eligible for CalWORKs cash aid, regulations require that
only one adult authorized representative in the household be
imaged.”
The Department cites Regulations sections 63-601.14
and 63-402.612.
The latter states that an authorized
representative may be designated to obtain benefits, and the
former states that “Authorized representatives are not required
to comply with SFIS requirements, unless no household member”
can comply.
The Department argues the trial court should not
have ordered it to refrain from requiring more than one adult to
be imaged in such cases, because it does not do so.
The
Department also states it does not require more than one nonparent caretaker relative to comply where those relatives do not
themselves apply for or receive CalWORKs or FSA aid, referring
to Regulation section 82-808.5:
“If there is a spouse or other
relative other than the designated non-parent caretaker relative
of the eligible child in the home, that other person is not
subject to the imaging requirement.
Only the designated non-
parent caretaker relative must be imaged.”
21
Sheyko agrees that the Department cannot require more than
one adult to be imaged in these cases.
She argues that because
the Department was unclear on this point at trial, this court
“should affirm . . . to require [the Department] to clearly
inform its county agents of its actual policy.”
This opinion memorializes the Department’s interpretation
of its duties.
(See Haley v. L. A. County Flood Control Dist.
(1959) 172 Cal.App.2d 285, 292-294.)
We see no reason to uphold
part of a judgment ordering an agency to stop doing what it has
not done and concedes it cannot do.
That would validate an
advisory opinion on an abstract question, rather than adjudicate
a ripe controversy.
(See Pacific Legal Foundation v. California
Coastal Com. (1982) 33 Cal.3d 158, 170-173.)
2.
Multiple Adults in CalWORKs cases.
Sheyko agrees that where both parents in the household are
eligible for CalWORKs benefits, both must comply, and where both
are ineligible, one or the other must comply.
She argues that
where an eligible parent has applied on behalf of the child, an
ineligible parent need not comply with SFIS.
The Department
argues that all parents and their spouses in the CalWORKs filing
unit, “the group of persons required to be on the Statement of
Facts” (Regs., §§ 80-301(f)(1); 40-115.22), must be imaged.
Sheyko first claims that this argument about the filing
unit was not raised in the trial court.
But the argument
presents a question of law, resolution of which is a matter of
statewide importance, therefore we will address it.
22
(Sea & Sage
Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412,
417; Ward v. Taggart (1959) 51 Cal.2d 736, 742.)
Sheyko next claims the filing unit argument depends on new
evidence which she might have countered in the trial court.
The
Department relies on published regulations of which we must take
judicial notice.
(Evid. Code, § 451, subd. (b); see In-Home
Supportive Services v. Workers’ Comp. Appeals Bd. (1984) 152
Cal.App.3d 720, 725, fn. 2.)
The Department also points to the
application and related aid forms, which are themselves indexed
as regulations and are available on request from the Department.
(Regs., §§ 63-1200, 63-1211; see Kings Rehabilitation Center,
Inc. v. Premo (1999) 69 Cal.App.4th 215 [incorporation by
reference permissible under the Administrative Procedures Act]
(Kings).)
We reject the claim that the Department’s argument
unfairly hinges on new, untested, facts.
As stated above, section 11008.14 provides in part that the
income of specified persons must be considered in making the
eligibility determination for CalWORKs, specifically, parents,
stepparents and siblings living in the home of the eligible
child.
(See also Regs., §§ 40-118.1, 80-301(f)(1).)
Under general Department regulations, when applying for aid
and each year thereafter an applicant must fill out a “Statement
of Facts” or “SAWS 2” form.
(See Regs., § 40-115.22.)
Both
parents in the CalWORKs family must be included on the form.
(Regs., § 40-118.13.)
As we explain later, aid recipients must
file monthly forms used to redetermine eligibility, and those
forms “shall be signed by each natural or adoptive parent or
23
aided spouse of a parent or other caretaker relative living in
the home [unless temporarily absent].”
(Regs. § 40-181.241(c).)
The CA 7 monthly form — as revised before section 10830 was
adopted — required the signatures of “cash-aided parent or
caretaker relative” and “cash-aided spouse or other parent of
cash-aided children.”
The current form has different wording,
but still requires the “spouse or other parent of cash aided
child(ren)” to sign in addition to the primary applicant.
Because each parent or spouse living in the home must sign the
forms, each is an “applicant” and must comply with SFIS.
Sheyko claims only “counted” income is important, and
points out some income is not counted.
(See, e.g., Regs., § 44-
133.22 [income of parent on SSI not imputed to the filing
unit].)
However, the regulations require that “All net income
of persons included in the Assistance Unit is income to the
Assistance Unit.”
(Regs., § 44-133.1.)
Section 11450 partly
provides that “In determining the amount of aid paid . . . the
family’s income [with exemptions] shall be deducted from the sum
specified” in a table which is adjusted periodically.
(See
California Homeless & Housing Coalition v. Anderson (1995) 31
Cal.App.4th 450, 453-455.)
The fact that some income may not be
counted does not change the fact that the Department must
ascertain the filing unit’s income, which it can do only if the
unit’s members properly report that income by filling out the
forms and verifying the accuracy thereof by signing them.
The Department “does not take the position that every adult
in the home is required to be imaged.
24
There may be relatives or
other adults living in the home who are neither parents, legal
guardians, nor caretaker relatives who are not mandatorialy
included in the Filing Unit.
Because their income is not
considered for purposes of eligibility determination and grant
computations, they are not members of the CalWORKs Filing Unit,
are neither recipients of aid nor applicants for aid and are
thus not required to be imaged.”
But we agree with the
Department that persons who are part of the filing unit are
effectively recipients of aid and must be fingerimaged.
As
stated above, aid is granted to the family and therefore
benefits all members of that family unit, even if some members
would not be eligible if considered individually.
Sheyko argues:
“The fact that an adult in the household
must have his or her income counted does not mean that such an
adult is an ‘applicant’ or ‘recipient.’”
Pointing to the format
of the Statement of Facts (SAWS 2) which applicants must fill
out, she argues that a second parent who is not applying for
personal benefits need not sign the form and therefore he or she
is not an applicant.
She also claims that because the
Legislature did not use the term “filing unit” in section 10830,
it did not intend to require all members of the filing unit to
comply with SFIS.
Taking the latter point first, it is an established rule of
construction that laws are to be read in the context of related
laws.
(See Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735;
Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 732-733.)
Sheyko concedes that the Legislature is presumed to be aware of
25
the relief laws and pre-SFIS regulations when it adopted section
10830.
Section 11008.14 was in effect before the SFIS statute,
as was the CA 7 form.
(See Stats. 1981-1982, 1st Ex. Sess., ch.
3, § 6, p. 6893, eff. Feb. 17, 1982.)
As to the former point, because the income of persons in
the filing unit must be considered, we reject Sheyko’s view that
such persons have the option of refusing to sign the form and
thereby evade the SFIS rules, while still obtaining benefits for
their family unit.
That would undermine the statutory purpose
of section 10830.
Instead, such a person must sign the forms,
thereby becoming an applicant, and is effectively a recipient as
a member of the filing unit, triggering the duty to comply with
SFIS.
We agree with the Department that all adult members of
the CalWORKs filing unit must comply with SFIS.
It appears
Sheyko’s argument rests partly on a misinterpretation of the
forms.
The second line for signatures on the SAWS 2 states it
is for the “other parent living in the home if applying for cash
aid,” which Sheyko interprets to apply to a second parent who is
applying for cash aid for herself or himself.
We disagree.
The
forms are designed to enable applicants to seek FSA, CalWORKs
and other types of aid (e.g., Medi-Cal), therefore some boxes
are relevant only in certain cases.
This signature line, read
in context, refers to a second parent living in the home where
the application seeks cash aid, whether or not that second
parent is eligible individually.
26
Because the judgment requires the Department to refrain
from insisting on SFIS compliance by all adult members of the
filing unit, that portion of the judgment is incorrect.
C.
Photographs.
The trial court upheld a regulation authorizing facial
photographs, finding it reasonably related to the SFIS purpose.
We reject Sheyko’s attack on this conclusion.
The statute nowhere prohibits photographs, and we reject
Sheyko’s view that the failure to mention photographs means the
Legislature wanted to prohibit photographs.
(See Kings, supra,
69 Cal.App.4th at p. 218 [“The fact that no statute explicitly
authorizes the practice . . . does not mean it is illegal”].)
Sheyko posits a parade of horribles:
What if the
Department required “blood testing, DNA sampling, urine testing”
along with fingerimaging?
The Legislature required the
Department to adopt “a statewide fingerprint imaging system[.]”
(§ 10830, subd. (a).)
By requiring adoption of a system, the
Legislature conferred discretion on the Department to use its
expertise to evaluate and adopt a system which it could feasibly
integrate into its existing operations.
Taking a photograph is
not invasive, and available fingerimaging systems include taking
a photograph of the subject.
(Finger Imaging, supra, 22 Fordham
Urb. L.J. at pp. 1333-1335.)
The record shows that the system
offered to the State by the outside vendor came with photoimaging, that photo-imaging does not add to the time or
invasiveness of the procedure, and that it is efficient and
effective in helping case workers administer the antifraud
27
system.
Sheyko has not carried her burden to show the adoption
of a system which includes the taking of a photograph exceeded
statutory authority or constituted an abuse of discretion by the
Department.
D.
Entire Case Ineligibility.
The trial court upheld the Department’s regulations which
require that all members of an aid group are deemed ineligible
when a member who must comply with SFIS does not:
“The court concludes that a ‘full family’ sanction for
refusal of an applicant for aid, as interpreted by the
court, or recipient of aid, to be fingerprint and photo
imaged does not violate the law. The person who applies
for aid on behalf of the household or minor or otherwise
incompetent person vouches for the accuracy of the
information provided. It is appropriate and necessary
that respondents be able to detect fraud in the
application process. Imposing the ‘full family’
sanction is an important means of insuring the
effectiveness and integrity of the system.”
The trial court then narrowed this holding by
distinguishing between a “refusal” and “failure” to comply,
which we discuss later.
Sheyko introduced the term “full family
sanction” in the trial court, and views the Department’s action
in such cases as a penalty.
The characterization of
disqualification as a penalty may be accurate in some contexts.
(E.g., Conn.Gen.Stat.Ann. § 17b-112(e)(3) (West 2003) [“a
disqualification penalty shall be established for failure to
cooperate with the biometric identification system”]; see Walton
v. Hammons (6th Cir. 1999) 192 F.3d 590, 595-597 [using term
“sanction” in FSA context] (Walton).)
28
However, regarding the
California laws, the Department says “[i]t is misleading to
refer to an eligibility factor as a ‘sanction’ because the word
‘sanction’ implies that [the Department], as a punitive measure,
is withholding benefits due to an eligible recipient.
Such is
not the case — in this context, persons who are not in
compliance with the imaging requirement are not eligible for,
and do not receive, benefits.
Accordingly, the imaging
requirement is not a sanction.”
We agree that it is not accurate to equate ineligibility
with a sanction, or penalty, because section 10830 makes
compliance a condition of eligibility.
Further, the word
sanction is inherently ambiguous because it can mean approval or
penalty.
(See Black’s Law Dict., supra, p. 1341, col. 1;
Garner, Modern Legal Usage (2d ed. 1995) pp. 780-781.)
Accordingly, we will not use the term “sanction” in this case.
The statute provides:
“A person subject to the [SFIS]
requirements . . . shall not be eligible for [aid] until
fingerprint images are provided, except as provided in
subdivision (e) [pertaining to scheduling appointments].
Ineligibility may extend to an entire case of any person who
refuses to provide fingerprint images.”
italics added.)
and “may”:
(§ 10830, subd. (b)(2),
Sheyko points out the section uses both “shall”
Because the Legislature stated the noncompliant
person “shall” not be eligible but ineligibility “may” extend to
the entire case, Sheyko argues individualized (case-by-case)
discretion must be exercised.
Sheyko points to other instances
of program noncompliance which may result in a less severe
29
result are of no assistance.
For example, she points out that
only the family member who fails to provide a social security
number, or fails to meet welfare-to-work requirements, loses
benefits.
(Regs., §§ 42-721.43; 63-404.41.)
But, as the
Department points out, those factors, which may be requirements
of aid, are not conditions of eligibility, as is SFIS
compliance.
Generally speaking, “‘“Shall” is mandatory and “may” is
permissive.’”
(§ 15; see Department of Social Welfare v. Wingo
(1946) 77 Cal.App.2d 316, 319.)
But the meaning of “shall” and
“may” must be considered in light of the statutory purpose.
(See Bradley v. Lacy (1997) 53 Cal.App.4th 883, 889-890;
Governing Board v. Felt (1976) 55 Cal.App.3d 156, 161-162.)
The use of “may” shows the Legislature intended that the
Department exercise discretion in determining how noncompliance
by one person would impact others under the law.
(See Caldo,
supra, 44 Cal.App.4th at pp. 1831-1832 [“The use in the statute
of the directory phrase stating the Board ‘may’ pay up to the
ceiling does not confer . . . the arbitrary power to pay or
disallow claims; its discretion is delimited by the statutory
scheme”]; accord Allison v. Block (8th Cir. 1983) 723 F.2d 631,
634-638 [because statute allowed agency to grant stated relief,
using “may,” agency had to develop standards for doing so].)
The Legislature did not mandate case-by-case discretion.
The Department exercised its discretion by adopting regulations
mandating “ineligibility for the entire assistance unit” in cases
of “[f]ailure to provide the required images” for CalWORKs
30
purposes.
(Regs., §§ 40-105.31, 40-171.221k [“action shall be
taken to deny aid if . . . any person required to provide
fingerprint and photo images refuses or otherwise fails”].)
The
Department adopted an FSA regulation requiring “each eligible
household member” to comply (Regs., § 63-601.12), and the parties
agree the effect is the same, because if any member does not
comply, the household is ineligible.
We agree with the trial court that the Department could
rationally conclude that any other result than “entire case”
ineligibility would undermine the effectiveness of the system.
As for the FSA, the United States Department of Agriculture
addressed this issue in a directive dated March 25, 1996, which
we find illuminating and persuasive:
“Consistent with . . . A[dministrative] N[otice] 96-13,
an entire household may not participate until all
required household members have cooperated by providing
fingerimages. As the requirement to provide fingerimages
is part of the eligibility determination process through
its detection of duplicate participation, the provision
in section 6(c) of the [FSA] would apply. This provision
states that ‘No household shall be eligible . . . if it
refuses to cooperate in providing information to the
State agency that is necessary for making a determination
of its eligibility or for completing any subsequent
review of its eligibility.’”
As stated elsewhere, there is an administrative hearing
before benefits are denied or terminated, at which the issue of
refusal to cooperate can be made.
Once that determination is
made, the FSA household is no longer eligible.
There is no law
allowing the provision of food stamps except to eligible
31
households.
Once the household is ineligible because of the
refusal of a required member to cooperate with SFIS, its other
members are ineligible unless or until they form a new
“household” or until the errant member complies.
In this
respect, the “entire case” ineligibility was foreordained, at
least as to the FSA, which provides aid to and only to eligible
“households.”
As for CalWORKs, the Department could rationally conclude
there was no reason to adopt a more lenient rule, allowing a
filing unit to receive benefits while a member failed to comply
with SFIS:
As the trial court concluded, that would open the
door to fraud, frustrating the statutory purpose.
E.
Refusal and Failure to Comply.
Section 10830, subdivision (b)(2) provides in part that
“Ineligibility may extend to an entire case of any person who
refuses to provide fingerprint images.”
(Italics added.)
By
regulation, “Failure to provide the required images will result
in ineligibility[.]”
(Regs., § 40-105.31, italics added; see
Regs., § 40-171.221k [“refuses or otherwise fails”].)
The trial court limited the ambit of the entire case
ineligibility by drawing a distinction between “refusal” and
“failure” to comply with SFIS:
“Respondents, in their most recent brief, state that the
Manual of Policies and Procedures, section 40-126.3 (a
regulation which allows a ‘cure’ period for a failure to
cooperate but not for a refusal to cooperate), may apply
but is not expressly applicable or inapplicable to SFIS.
However, respondents have adopted regulations and
instructions to counties which are expressly and
32
specifically applicable to SFIS and which do not
distinguish between a failure and a refusal to comply
with the fingerprint and photo imaging requirements.
[Citations.] As respondents have adopted regulations
and policies which allow a ‘full family’ sanction [sic]
for a failure to comply, they are unauthorized in that
. . . section 10830 provides that ‘[i]neligibility may
extend to an entire case of any person who refuses to
provide fingerprint images’ but does not authorize that
sanction [sic] for a mere failure to comply.”
The judgment requires the Department “To refrain from
denying or terminating benefits for the entire case of an
applicant or recipient of CalWORKs [or] Food Stamps for a
failure to comply with the [program] requirements as opposed to
a refusal to comply with these requirements.”
there was no basis to make this distinction.
We conclude that
Because of the
availability of a fair hearing which delays the impact of the
eligibility determination for a sufficient period to allow
multiple opportunities to comply with SFIS, we reject Sheyko’s
hypothetical of an innocent applicant or recipient who through
mischance failed to comply with SFIS despite reasonable efforts
to comply.
Once a person has repeatedly passed up reasonable
opportunties to comply, it is rational for the Department to
conclude that person’s “failure” to comply equates to a
“refusal” to comply.
Therefore, the regulations speaking of a
failure or refusal to comply do not exceed the terms of the
statute which speaks only of a refusal to comply.
Generally, “there need not be a ‘wilful’ refusal to comply
with welfare rules and regulations before aid can be reduced.”
(Berlin v. McMahon (1994) 26 Cal.App.4th 66, 73.)
Here, lack of
compliance with SFIS means a person has not satisfied a
33
condition of eligibility.
states:
(§ 10830, subd. (a).)
The Department
“An applicant or recipient who fails to comply with
[SFIS] is not eligible for benefits, whether the refusal stems
from an express refusal to comply or a failure to comply.
Ultimately, there is no real difference between someone who
refuses to comply and someone who fails to comply - neither is
eligible for benefits.”
We generally agree.
All persons who must be imaged are told the purpose of the
SFIS program and assured the data will be used for and only for
fraud detection.
(§ 10830, subd. (d).)
Imaging is scheduled
during the normal application appointment “or other regularly
scheduled appointments.
required.”
No other special appointment shall be
(Id., subd. (e)(1).)
Technical problems are not
counted against a person, “as long as the person consents to and
is available for fingerprint imaging at a mutually agreed upon
time, not later than 60 days from the initial attempt to complete
fingerprint imaging.”
(Ibid.)
Special appointments for SFIS
compliance are authorized during and only during the initial nine
months of the program implementation, and those appointments are
set by mailed notice, which “shall include procedures for the
recipient to reschedule the scheduled appointment within 30
days.”
(Id., subd. (e)(2).)
The record contains undisputed
evidence that SFIS compliance “is only one of many required
steps in the determination of eligibility and takes less than
five minutes for the applicant to complete while in the office.”
(See also Biometric ID Project, at www.dss.state.ct.us
[describing Connecticut’s similar program].)
34
Sheyko does not seriously dispute that compliance is easy,
but argues this is irrelevant because “[r]egardless of the ease
of compliance, it is certainly possible for people to innocently
fail to comply with SFIS.”
She posits innocently missed
appointments, and points out that for the FSA, federal law
requires “a clear determination of refusal to cooperate,” as
stated in the directive from the Department of Agriculture we
partly quoted above:
“Per the program regulations at 7 [C.F.R.
§] 273.2(d)(1), a clear determination of refusal to cooperate
would need to be made before terminating or denying the
household, and a household terminated as such would be permitted
to reapply, but could not be determined eligible ‘until it
cooperates with the State agency.’”
We find that innocent
failure to comply will not result in denial of benefits or loss
of aid, as we now explain in some detail.
Aid recipients may not be cut off without a fair hearing,
and aid is continued pending the outcome.
(Goldberg v. Kelly
(1970) 397 U.S. 254, 264-265 [25 L.Ed.2d 287, 296-297].)
The
Department acknowledges that SFIS noncompliance does not obviate
fair hearing rights.
Sheyko states this remedy is illusory
because “the family would automatically lose.”
Not so:
At such
a hearing, a person could explain efforts to comply (e.g.,
multiple technical failures of SFIS equipment) or, more simply,
comply on the spot or in the sometimes lengthy period leading up
to the hearing.
An “All County Letter” (No. 00-32) from the
Department, cited by Sheyko, states in part “Counties are
encouraged to fingerprint/photo image clients whenever they are
35
in the office to take care of other business unless there is
some physical impairment that precludes imaging.”
Because
benefits would continue until an adverse hearing decision,
compliance at or before the hearing would forestall any loss of
benefits.
Indeed, as we now explain in greater detail, the fair
hearing process would take a person much longer than SFIS
compliance.
The fair hearing regulations require that the county mail
notice of ineligibility or reduction of aid.
072.1; 40-107.5.)
(Regs., § 22-
Generally, the aggrieved party has 90 days
after the adverse action to demand a hearing (§ 10951) but
requesting a hearing before the effective date of the adverse
action ensures that aid is “paid pending” the hearing.
(Daniels, supra, 4 Cal.App.4th at p. 52.)
The Department has a
duty to help the applicant comply and “shall not deny an
application” if he or she is cooperating in good faith.
§ 40-126.34; see CalWorks Manual, supra, ch. XIV(c).
(Regs.,
See also
Webb v. Swoap (1974) 40 Cal.App.3d 191, 193-194 [generally
describing fair hearing procedures], distinguished on another
ground in Aktar, supra, 58 Cal.App.4th at p. 1178.)
The
aggrieved party can ultimately seek review by the Department’s
director, or the courts.
(See §§ 10959-10962.)
Because of these fair hearing procedures, a person who
simply missed a couple of SFIS appointments would not lose aid:
At any point along the process the person could visit a welfare
office and comply with SFIS, mooting the eligibility flaw.
36
The
Department could rationally conclude that anybody who
persistently fails to comply with SFIS has refused to comply.
Contrary to Sheyko’s claim, the fact the Department has
adopted separate form notices for noncompliance depending on
whether a person “failed” to comply or “told us” the person
would not comply, does not mean the Department “expects county
workers to decide in each case whether noncompliance with SFIS
is a failure or a refusal.”
case-by-case review.
The Department eschews use of a
Non-SFIS regulations provide the county
shall not deny aid “for failure to provide evidence of
eligibility if the county has determined that the applicant is
continuing to cooperate,” but “A denial due to failure to
cooperate shall be made when a presumption of noncooperation has
been established by the county but an act of refusal has not
occurred.”
(Regs., §§ 40-126.34, 40-126.341.)
refusal” must be documented.
Such “an act of
The denial must be rescinded if
the needed evidence of eligibility is produced in 30 days, and a
notice to that effect must tell the applicant of this
opportunity.
(Regs., § 40-126.342.)
However, those provisions
“shall not apply to applications which are denied based on the
applicant’s refusal to cooperate pursuant to Section 40-157.3.”
(Regs., § 40-126.344; see CalWORKs Manual, supra, ch. 10(B)(3)
[“The CalWORKs family is required to cooperate within its
capabilities”].)
Regulations section 40-157.3 provides for
denial of an application where the applicant “is able to assist
. . . but refuses,” and “a denial based on refusal to cooperate
shall only be made as the result of the applicant’s active
37
refusal either orally or in writing to cooperate in the
investigation of eligibility.”
(Regs., § 40-126.344(a).)
When
an FSA household is shown to “have been able to cooperate, and
clearly demonstrated that it chose not to take such actions as
are required to complete the application process,” the
application is denied, but “If there is any question as to
whether the household has merely failed to cooperate, as opposed
to refused to cooperate, the household shall not be denied.”
(Regs., § 63-505.121 (a) & (b).)
This tracks federal FSA law,
referred to in the Department of Agriculture directive quoted
above.
“The [FSA] household shall also be determined ineligible
if it refuses to cooperate in any subsequent review of its
eligibility . . . .”
(Regs., § 63-505.123.)
cooperate rules also apply in TANF cases.
Refusal-to-
(See, e.g., Walton,
supra, 192 F.3d 590; Tomas v. Rubin (9th Cir. 1991) 926 F.2d
906, 908-909, clarified on rehearing at 935 F.2d 1555.)
But we
agree with the Department that where a person persistently fails
to comply, an inference of refusal to comply properly follows.
At bottom, whether a party has failed to establish
eligibility or refused to establish eligibility, that party has
not established eligibility and, hence, cannot be given aid:
The Department may not grant aid until a party has demonstrated
legal eligibility for aid.
this basic truth.
Section 10830 does not depart from
The trial court erred by requiring the
Department to consider the mental state of noncompliant persons.
Instead, we agree with the Department:
“A person who remains
out-of-compliance with the imaging requirement, and neither
38
comes into compliance nor successfully contests a determination
of ineligibility [at a fair hearing] ultimately refuses to
comply with the imaging requirement.
Such a person is
ineligible for benefits and causes his or her entire case to
also be ineligible.”
F.
Retroactivity
The trial court concluded the SFIS regulations had an
impermissible retroactive effect, at least in part:
“[T]he fingerprint and photo imaging requirements may
not be applied to persons who were ‘applicants’, as that
term is construed by this court, prior to the effective
date of section 10830 but are not themselves
‘recipients’. The two terms are not interchangeable.
If the requirements were extended to persons who applied
prior to the effective date of the statute but are not
‘recipients,’ the statute would have an impermissible
retroactive effect. The statute would affect the
consequences of past actions: by applying in the past,
a person would now be subject to being fingerprinted and
photographed. The Legislature has not clearly expressed
an intention that the requirements apply to persons who
applied in the past but are not themselves ‘recipients’.
If the Legislature wishes to make past ‘applicants’
subject to fingerprint and photo imaging requirements,
it should do so by [explicit] legislation.”
The judgment bars the Department “from requiring compliance
. . . by parents and caretaker relatives who are not themselves
recipients of but were applicants on or before July 21, 1996,
for [CalWORKs or FSA] benefits for children with continuing
eligibility who are currently receiving benefits.”
The trial
court used the term “recipient” in the narrow sense of an
39
eligible receipient, rather than in the sense of one who
receives benefits on behalf of another.
“Absent some clear expression by the Legislature that its
enactments are intended to have retroactive effect we do not
generally assume retroactivity.”
Cal.App.3d 1237, 1241.)
(Rogers v. Edmonds (1988) 200
“A statute does not operate
retroactively merely because some of the facts or conditions
upon which its application depends came into existence prior to
its enactment.”
(Kizer v. Hanna (1989) 48 Cal.3d 1, 7.)
“The
test of retroactivity is whether [a statute] operates
retroactively to materially alter the legal significance of a
prior event. . . .
The problem is to discern the materiality of
events with respect to the policy advanced by the presumption of
prospectivity.
The source of the presumption is the ‘general
consensus that notice or warning of the rule should be given in
advance of the actions whose effects are to be judged.’
[Citation.]
Application . . . is retroactive only when it gives
a different and potentially unfair legal effect to actions taken
in reliance on the preenactment law.”
(California Trout, Inc.
v. State Water Resources Control Bd. (1989) 207 Cal.App.3d 585,
609, italics added (California Trout).)
The Legislature intended that all applicants and recipients
be imaged to prevent fraud.
SFIS compliance is an eligibility
requirement (§ 10830, subd. (b)(2)) and recipients lose their
entitlement as soon as they lose their eligibility.
(E.g., 7
U.S.C. § 2015(c) [household loses FSA eligibility “if it refuses
to cooperate in providing information . . . that is necessary
40
for making a determination of its eligibility or for completing
any subsequent review of its eligibility”].)
It would be no
different than the Legislature changing some other eligibility
condition, such as maximum income:
That new cut-off would apply
to all recipients, regardless of when they became recipients.
No recipient has a reasonable expectation that eligibility
conditions will not change.
Nobody loses past benefits for
present noncompliance with SFIS.
A person may lose eligibility for a variety of reasons
(e.g., earning above a given amount).
Each AFDC or FSA
recipient must file a monthly report and benefits may be
discontinued if it is not timely filed.
(Regs. §§ 40-181.22
[AFDC]; 63-505.2 [FSA]; 80-310(c)(12) & (s)(7) [defining forms];
see CalWorks Manual, supra, ch. X(c) & (d).)
The eligibility
determination is reconsidered monthly and yearly.
(See §§
11265, 11265.1; Stats. 2002, ch. 1022, § 30, p. _____ [quarterly
option].)
Sheyko contends these reports are irrelevant because
they are “inherently prospective in nature, while SFIS adds a
new legal requirement to an application process which has
already been completed.”
But the monthly and yearly reporting
process creates a system in which eligibility is continually
reevaluated to see if the present conditions of eligibility are
met.
This means the SFIS regulations do not “materially alter
the legal significance” of applying for benefits, nor give “a
different and potentially unfair legal effect to actions taken
in reliance on the preenactment law.”
207 Cal.App.3d at p. 609.)
41
(California Trout, supra,
Sheyko posits unfairness to people who were applicants, but
not recipients, before the SFIS statute, because they must be
imaged to ensure continued benefits to the recipients.
But if
the original applicant did not comply, the present recipient
could find a new person to take responsibility for filing the
monthly and yearly updates, that is, a new applicant.
Because
receipt of benefits depends on monthly and yearly
redeterminations, recipients must always have some applicant to
fill out the forms, and it does not matter whether it is the
person who originally applied on their behalf.
We reject
Sheyko’s claim of unfair retroactive application of the SFIS
program.
DISPOSITION
The judgment is reversed with directions to enter judgment
for the Department.
appeal.
Each party shall bear its own costs on
(Cal. Rules of Court, rule 27(a).)
MORRISON
We concur:
SCOTLAND
, P.J.
KOLKEY
, J.
42
, J.
