Goldberg v Kelly
Casting a Long Shadow after 40 Years
Synopsis
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Goldberg v. Kelly - product of a
combination of factors and conditions
Goldberg v. Kelly’s history, including the
forgotten California case of Wheeler v.
Montgomery.
Later cases have undercut some
Goldberg principles but it still casts a
long shadow in the fields of
administrative and constitutional law
and on current administrative practices.
Due Process Quotes
The history of liberty has
largely been the history
of procedural safeguards.
--Justice Felix Frankfurter
Most of the provisions of the
Bill of Rights are procedural.
It is procedure that spells
much of the difference
between rule of law and rule
by whim or caprice.
--Justice William O. Douglas
When government acts in a
way that singles out …
individuals …it activates a
special concern about being
personally talked to about
the decision rather than
simply dealt with.
--Justice Harry Blackmun
Setting the Stage
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Early 1960s social and political forces
combine to stir the nation to address
the growing problem of poverty.
War on Poverty
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President Johnson declared War on Poverty
and implemented federal programs for
Medicare and Medicaid, housing assistance, job
training, public education, and legal services.
Poor People’s Campaign
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In 1967 Martin Luther King Jr. organized a
Poor People's Campaign to address issues of
economic justice and housing for the poor.
Poor People’s March on Washington 1968
Welfare Rights Movement
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Individual rights became an organizing
principle in the 1960s and the welfare
rights movement was born.
The Poverty Lawyer
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Traditional legal aid work involved
routine legal advice to poor people
Legal Aid Society of New York 1910
The Poverty Lawyer
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Mobilization for Youth (MFY) Legal Unit, which
filed the Goldberg v. Kelly lawsuit was one of
the first programs to receive OEO funding.
The Poverty Lawyer
OEO Also Funds
San Francisco
Legal Assistance
Litigation Strategy
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Poverty lawyers followed the litigation strategy of
civil rights movement of pursuing impact litigation.
Poverty Lawyer’s Goals
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Welfare rights lawyers wanted a Brown v.
Board of Education decision for the poor
including:
Constitutional "right to live"
with a legal guarantee of a
minimum standard of living to
all citizens.
 Extending the strict scrutiny
given racial classifications to
classifications based on wealth.
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Early Successes
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King v. Smith (1968)
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Alabama’s “substitute father” rule—denying
AFDC to single mothers who regularly cohabited
with a man—violated the Social Security Act’s
definition of a needy child.
Shapiro v. Thompson (1969)
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Legal residency requirements for AFDC violated
a person’s fundamental right to travel without a
compelling government interest.
Sign of things to come—Brennan states: “This
constitutional challenge cannot be answered by
the argument that public assistance benefits are
a privilege and not a right.”
Early Successes
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Poverty lawyers appealed 164 cases to the U.S.
Supreme Court from 1965 to 1974.
Poverty law cases constituted 7% of the
Court’s opinions during this period.
Goldberg v. Kelly: Opening Act
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The Plaintiffs’ Attorneys:
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In 1967, lawyers at MFY Legal Unit and the
Center for Social Welfare Policy and Law
decided to sue the city and state of New York
challenging welfare terminations.
MFY Legal Unit (now MFY Legal Services). David
Diamond was the primary lawyer who prepared
and filed the lawsuit.
The Center for Social Welfare Policy and Law
(now National Center for Law and Economic
Justice) assisted MFY with the lawsuit. Lee
Albert became the lead attorney in the case.
John Kelly and Plaintiffs
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in January 1968 John Kelly, a 29-year-old homeless
man came to MFY after his home relief check was cut
off. He agreed to join the lawsuit challenging the
cutoffs. He was told his name would “go up in lights.”
20 plaintiffs were added to assure the case won’t
become moot.
Defendants and their Attorneys
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The Defendants
Kelly’s lawyers decided to sue New York state and city
officials and suing federal officials was too dangerous.
George Wyman, the New York State welfare
commissioner, and Jack Goldberg, the New York City
welfare commissioner were named defendants.
January 28, 1968, the lawsuit was filed in federal
district court under the caption, Kelly v. Wyman.
The Defendants Attorneys
City Attorney John Loflin represented New York City,
and Joel Sacks represented the State of New York.
The federal court invited the United States to file an
amicus brief due to its interest in the welfare monies.
Welfare Termination Process
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Before the lawsuit, NY had no requirement of prior notice or
hearing of any kind before benefits were terminated.
After the lawsuit was filed, NY State adopted rules providing
for a pre-termination informal conference. Option A.
NY City believed the state’s pre-termination process was too
costly and adopted a “paper review” process. Option B.
Kelly v. Wyman (1968)
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A three-judge court was convened, with Second Circuit
Court of Appeals Judge Wilfred Feinberg presiding.
June 26, 1968, oral arguments made to the threejudge panel.
November 26, 1968, Judge Feinberg issues the
decision:
 Due process applied to welfare benefits
terminations
 NY State’s option A satisfied due process
 NY City’s option B violated due process because the
stakes are too high for a welfare recipient who has
a “brutal need” for the benefits and the chance of
errors is too great with city’s procedures.
Wheeler v. Montgomery (1968)
The Forgotten California case
Wheeler v. Montgomery (1968)
The Forgotten California case
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Seven month before Kelly v. Wyman was
decided, a California 3-judge panel issued the
opposite decision on the requirement of a pretermination hearing.
 April 19, 1968, the California court decided
the informal conference process California
had adopted before cutting off benefits
satisfied due process.
 June 14, 1968, Sitkin and Steve Antler, a
former MFY attorney, appealed to the
Supreme Court.
Race to the Supreme Court
Wheeler
Goldberg
Goldberg v Kelly
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Preparing the Briefs
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Loflin’s brief for the NY City was 9
pages.
Sylvia Law missed Woodstock the
summer of 1969 to work on the
Goldberg brief.
August 30, 1969, plaintiffs’ 74-page
brief was filed.
Briefs reference Professor Charles
Reich's works that welfare benefits
are not gratuities but are ''property''
protected by the Constitution.
Wheeler-Goldberg Arguments
Wheeler-Goldberg Arguments
Deliberating and Drafting
Deliberating and Drafting
Delivering the Majority
Opinion
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Douglas’ choice of Brennan to
author the opinion was
fortunate.
Brennan’s willingness to make
changes caused Harlan and
White to join the opinion.
“From its founding, the
Nation’s basic
commitment has been
to foster the dignity and
well-being of all persons
within its borders.”
Brennan’s Signature Opening
Does Due Process Apply?
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Does due process apply to the
termination of welfare benefits?
Brennan cites Shapiro v. Thompson: “The constitutional
challenge cannot be answered by an argument that
public assistance benefits are a privilege and not a right."
And he reasons that: “Such benefits are a matter of
statutory entitlement for persons qualified to receive
them.8”
Notably, in footnote 8 Brennan refers to Prof. Reich’s
writings to support his opinion that a person who has
qualified for a benefit has a property interest in the
benefit that cannot be taken without due process.
What Process is Due?
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If due process applies, what process is
due?
To answer this question, Brennan uses a balancing test
weighing the recipient’s interests vs. the government’s
interests in conserving fiscal and administrative
resources. He considers the stakes to be too high for the
welfare recipient who is “deprived of the very means by
which to live while he waits.”
In addition, he concludes New York’s written review
process and California informal conference process do
not provide sufficient protection against mistaken
terminations, especially since welfare cases often
involved disputed factual issue where credibility is
important.
Goldberg 10
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Brennan very carefully says the
"pre-termination hearing need
not take the form of a judicial
or quasi-judicial trial" and only
procedures required by rudimentary
due process are needed, which
include:
Goldberg Top 10
Timely and adequate notice
Oral presentation of evidence
Oral presentation of arguments
Disclosure of opposing evidence
Right to an impartial decision maker
Confrontation of any adverse witnesses
Cross-examination of adverse witnesses
Right to attorney or representative
Decision based on record of the hearing
Statement of reasons and evidence
supporting the decision
Goldberg 10
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After reviewing the list of 10 requirements, it seems
more accurate to say the hearing should resemble a
judicial trial because it sure looks like one. What didn’t
the Court require?
 No need for complete record
 No need for complete opinion with formal findings of
fact and conclusions of law.
 No counsel provided by the government.
 No particular order of proof.
 No mention of evidence under oath.
 No mention of subpoenas for witnesses
 If you compare Goldberg hearing requirements to
the requirements for formal adjudication under § 556
of the federal APA or § 4-211 of the Model State
APA, you’ll find very little difference.
Delivering the Dissenting
Opinion
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“The Court today holds that it would violate
Due Process to stop paying those people
weekly or monthly allowances unless the
government first affords them a full
'evidentiary hearing' even though welfare
officials are persuaded that the recipients are
not rightfully entitled to receive a penny
under the law.… I do not believe there is any
provision in our Constitution that should thus
paralyze the government's efforts to protect
itself against making payments to people
who are not entitled to them.”
Goldberg v. Kelly’s Influence
[Justice Brennan] did something rare in the law—
he created a symbol, a symbol of the need for
equality, dignity, and fairness in the individual’s
relationship to the administrative state.
--Justice Stephen Breyer
Goldberg’s influence
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Linda Greenhouse, 1998 Pulitzer Prize
journalist for New York Times wrote after
Justice Brennan’s death in 1997:
“But it was his 1970 opinion for the
Court in Goldberg v. Kelly …that Justice
Brennan appeared to cherish above all
others. … The opinion proved to be a
watershed of constitutional
interpretation, a critical building block in
what came to be known as the Due
Process revolution.
Goldberg’s Influence
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Judge Henry J. Friendly in his 1975 article,
“Some Kind of Hearing” wrote:
Since [Goldberg] we have witnessed a
due process explosion in which the
Court has carried the hearing
requirement from one new area of
government action to another.… We
have witnessed a greater expansion of
procedural due process in the last five
years than in the entire period since
ratification of the Constitution.”
Goldberg’s Influence
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In December 2009, Hein Online listed the
50 Most-Cited Supreme Court Cases in
law reviews and journals.
Goldberg v. Kelly was number 28 (5,639
citations).
Not surprisingly, Chevron U.S.A. Inc. v.
NRDC was number 20 (6,300 citations),
but surprisingly Mathews v. Eldridge was
number 42 (4,823 citations), and even
more surprisingly Shapiro v. Thompson
was number 19 (6,343 citation) beating
Chevron.
Goldberg is “Good Law”
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Unquestionably Mathews v. Eldridge (1976)
and subsequent cases signaled a retreat from
Goldberg principles.
But Goldberg v. Kelly ‘s holding in the welfare
benefit context has not been overturned.
Cesar A. Perales, Social Services Commissioner
of New York State said in 1990, “the
constitutional concept of due process is made
real more than 75,000 times each year….
Perhaps the most dramatic proof of the
institutional saturation of Goldberg precepts is
that its protections, once considered radical,
are now taken for granted.”
Wheeler’s Influence
"Almost simultaneously, it seemed, with my appointment as
Director by Governor Reagan, there began a series of court
actions both state and national to challenge public welfare rules
and regulations....
Here in California we have been challenged on dozens of issues,
all of them coming back to the fact that for the first time, the poor
had real and effective advocacy in our courts. This, again, is the
significant point transcending all other considerations and
consequences. An era of advocacy has begun out of which, I am
sure, public assistance is never going to be the same.
Not only is this happening through the courts, but also in the
meetings and hearings of welfare boards, advisory commissions
and administrators at every governmental level. The poor have
come out of their apathy, and our accountability for what we do
and why we do it is theirs to know - as it always has been under
the law but never before so vocally sought.“
John Montgomery, California Director of Welfare, Calif. Welfare
Director's Newsletter, Special Issue (vol. V, No. 6) p.3-4 (Nov.Dec. 1969)
Goldberg is “Good Law”
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As “legacy operating systems” still run on
computers out there, Goldberg‘s legacy also
lives on outside the welfare context.
Agency practices adopted in response to
Goldberg have never been changed to reflect
current due process jurisprudence. Two
examples:
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Snyder et al. v. Shearer 1982 Stipulation between
Legal Services of Iowa and Iowa Department of Job
Service requires Goldberg rights in unemployment
initial fact-finding interviews.
Driver’s License Point hearings in Colorado
Hearing notice is sent out when driver exceeds point
limit without any request by the driver for a hearing.
Goldberg and Administrative
Law Judiciary
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Finally, the due process
requirement of an evidentiary
hearing with the ten
Goldberg rights played a part
in the development of a
professional, impartial, and
independent administrative
judiciary.
Goldberg and Administrative
Law Judiciary
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Four years after Goldberg v. Kelly, a group of
hearing officers established the National
Association of Administrative Hearing Officers,
now called the National Association of
Administrative Law Judiciary.
The preamble to the constitution drafted in
1974 states:
“We who are members of the profession
charged with the duties and responsibilities of
exercising judicial functions, do hereby join
together and associate ourselves for the
purpose of maintaining the highest professional
standards and advocating improvements in the
field of administrative law.”
Closing Words
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"Due process asks whether government has
treated someone fairly, whether individual
dignity has been acknowledged. If due process
values are to be preserved in the bureaucratic
state of the late 20th century, it may be
essential that officials possess passion—the
passion that puts them in touch with the
dreams and disappointments of those with
whom they deal, the passion that understands
the pulse of life beneath the official version of
events.”
From Justice Brennan's 1987 speech on
"Reason, Passion and the Progress of the Law"
10 Cardozo Law Review 3 (1988).
Credits
Martha F. Davis,
Brutal Need: Lawyers
and the Welfare
Rights Movement
www.oyez.org/