Welfare Complaint Library

” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FILED\/EWMflSED ov r 8 2013 By S. Lee, Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO MARTIN STORY, Petitioner, SACRAMENTO COUNTY BOARD OF SUPERVISORS; SACIMMENTO COUNTY DEPARTMENT OF HUMAN ASSISTANCE; PAUL LAKE, Director, Sacramento County Department of Human Assistance Respondents. Case No. 34-2012-80001092-CU-WM-GDS RULING ON SUBMITTED MATTER: PETITION FOR WRIT OF MANDATE AND WRIT OF ADMINISTRATIVE MANDATE I. Introduction This matter arises out of petitioner Martin Story’s application for General Assistance benefits in July, 2011. Respondent County Depaitment of Hainan Assistance denied petitioner’s application on the ground that he was employable. Petitioner appealed that determination, and an evidentiary hearing was held before an Administrative Hearing Officer on December 8, 2011. The Administrative Hearing Officer issued a written decision denying petitioner’s appeal and upholding the County’s employability deterinination on December 22, 2011. The petition in this matter includes a request for issuance of a writ of traditional mandate under Code of Civil Procedure section 1085 and a request for issuance of a writ of administrative mandate under 1 RULING ON SUBMITTED MATTER CASE NO. 34-2012-80001092-CU-WM-GDS 1 Code of Civil Procedure section 1094.5. 2 In connection with the petition for writ of traditional mandate, petitioner alleges that respondents have a policy of refusing to consider evidence, including inedical evidence, that does not make an express 3 ^ conclusion about whether a General Assistance benefit claimant is employable, and that is not verified by 5 6 7 8 9 10 11 12 13 14 23 24 25 26 27 28 a qualified, licensed medical or mental health professional. Petitioner contends that this policy led to the adverse result in his case, and violates his due process rights. In connection with the petition for writ of administrative mandate, petitioner alleges that the weight of the evidence in his case supports a determination, contrary to the decision the Administrative Hearing Officer made, that he was not employable for purposes of evaluating his claim for General Assistance benefits. II. Standard of Review The parties agree that the applicable standard of review in this case is the independent judgment standard. The issue of whether respondent’s action violated petitioner’s due process rights, as raised by the petition for writ of traditional mandate, is a question of law which is reviewed de novo. (See, Duncan I g V. Department of Personnel Administration (2000) 77 Cal. App. 4\”‘ 1166, 1174.) In the petition for writ of -\u03027 administrative mandamus, because this is a matter that involves petitioner’s fundamental vested right to 18 welfare benefits if found eligible for such benefits, the Court reviews the entire record and weighs the 19 evidence to determine whether the decision of the respondent was correct. (See, e.g., Frinkv. Proc\/(1982) 20 31 Cal. 3’\u0302 ” 166, 180.) The administrative decision is entitled to an initial presumption of correctness, and 21 the burden rests upon the challenger to demonstrate that the decision is contrary to the weight of the 22 evidence. (See, Fukuda v. City of Angels (1999) 20 Cal. 4\”‘ 805, 817.) III. Traditional Mandate; Due Process Having reviewed the administrative record and the other evidence in this case under the independent judgment standard of review, the Court concludes that respondents have a policy, as petitioner contends, of refusing to consider evidence, including medical evidence, that does not make an express conclusion about whether a General Assistance benefit claimant is employable, or that is not RULING ON SUBMITTED MATTER CASE NO. 34-2012-80001092-CU-WM-GDS 1 verified by a qualified, licensed inedical or mental health professional 2 The Court finds that this policy arises out of at least two written documents issued by the County 3 Department of Human Assistance relating to the General Assistance program ^ In the document entitled \”Employability Deterinination and Case Plans\”, respondents set forth a policy that acceptable verification of medical, mental health or functional limitations affecting the ability of an applicant to work must include the ability to work, degree, duration and nature ofthe incapacity, or the verification will be considered incomplete and unacceptable. This policy also requires that inedical, mental health or functional limitation verification must be completed, signed and dated by appropriate licensed and\/or trained medical or mental health professionals.’ Additionally, in the document entitled \”Administrative Hearings\”, respondents set forth a policy that Hearing Officers must sustain an employability determination based on medical or psychiatric findings of licensed health professionals absent contrary findings by similarly qualified licensed health care professionals.\u0302 In the hearing in this case, the Administrative Hearing Officer permitted petitioner to offer lg evidence relevant to the issue of whether he was employable, including recent prison inedical records, ly prior inedical opinions regarding petitioner’s employability from 2007-2009”, and petitioner’s own 18 testimony regarding his current condition and inability to work. That evidence was admitted and is present 19 in the administrative record. However, because the record also contained an opinion from a licensed 20 physician (Dr. Lipscomb) stating that petitioner was employable\”, the Administrative Hearing Officer did 21 not consider or weigh petitioner’s evidence at all in making her decision 22 The decision made this explicit, stating: \”The Hearing Officer has neither the expertise nor the 2-\u0302 authority to overturn the 08\/17\/11 medical evaluation. As Dr. Lipscomb’s evaluation provides the most 24 25 5 6 7 8 9 10 11 12 13 14 15 ‘ See, Exhibit 2 to petitioner’s opening brief, page 4 of 16. ^ See, Exhibit 1 to petitioner’s opening brief, page 13 of 14. ‘ See, Administrative Record, pages 72-80. The Court notes that these prior determinations had been accepted by respondents in determining that petitioner was unemployable and thus eligible for General Assistance benefits in 27 these earlier periods. 28 \”* See, Administrative Record, pages 12-13. RULING ON SUBMirrED MATTER CASE NO. 34-2012-80001092-CU-WM-GDS 1 recent evidence of the claimant’s inedical conditions, and the Hearing Officer must sustain employability 2 determinations based on medical findings of licensed health care professionals, it is concluded that the county correctly determined the claimant to be employable.\”^ The italicized portions ofthis statement ^ make it clear that the Administrative Hearing Officer was applying an official policy that precluded her from considering petitioner’s evidence, solely on the ground that it did not meet the verification standards set forth above. In a letter to petitioner’s counsel dated March 9, 2012, Paul G. Lake, the Director of the Departinent of Human Assistance, confirmed the existence of such a policy.* The letter specifically addressed petitioner’s case, and acknowledged that petitioner had submitted \”records…from different medical and mental health professionals\”, but pointed out that \”none of these records appear to make any deterinination as to whether or not he is employable. As such, there is no basis on vvhich the hearing officer could have changed Mr. Story’s employability status. […] DHA Hearing Officers are not qualified to make independent determinations as to which inedical or mental health conditions may or may not impact a client’s employability status.\” The effect of respondents’ policy in this case was clear: potentially relevant evidence regarding ly petitioner’s employability simply was not considered. In effect, if not explicitly, respondents e.xcluded 8 potentially relevant evidence regarding employability, including recent prison medical records, prior 19 medical determinations of uneinployability made between 2007 and 2009, and petitioner’s own testimony 20 regarding his current condition and ability to work. 21 The Court finds that the application of the policy in this manner violates the procedural due 22 process rights of General Assistance claimants in general, and specifically violated the procedural due 23 process rights of petitioner in this case. 24 The due process clauses of Article I, Sections 7 and 15 of the California Constitution apply to 25 cases involving a statutorily conferred benefit or interest, and focus on freedom from arbitrary adjudicative 26 \” 5 6 7 8 9 10 11 12 13 14 15 27 ^ See, Administrative Record, page 120. (Emphasis added.) 28 * See, Exhibit 3 to petitioner’s opening brief RULING ON SUBMITTED MATTER CASE NO. 34-2012-80001092-CU-WM-GDS 1 procedures. (See, Gresher v. Anderson (2005) 127 Cal. App. 4\”‘ 88, 104-105.) It is undisputed that this 2 case involves a statutorily conferred benefit, specifically. General Assistance benefits. The existence of that interest triggers application ofthe California due process clauses in this case. Analysis of whether ^ respondents’ actions violated due process rights in this case involves consideration of four factors, as 5 3 6 7 follows: (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures g used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the g nature, grounds and consequences of the action and in enabling them to present their side ofthe story before a responsible governmental official, JQ and (4) the governmental interest, including the function involved and the fiscal or administrative burdens that the additional or substitute 11 procedural requirement would entail. (See, People v. Ramirez {\\919) 25 Cal. 3\u0302” 260, 269.) 12 13 14 15 16 17 18 19 20 2j respondents is high, as illustrated by the result in this case. Respondent found petitioner to be employable, 22 and thus ineligible for General Assistance benefits, solely on the basis of Dr. Lipscomb’s opinion. Yet 23 that opinion consisted only of a box checked on a form stating that petitioner \”Can work\”, without 24 including any foundational facts or analysis supporting that bare conclusion.’ 25 Dr. Lipscomb’s report is subject to the principle that an expert’s opinion rendered without a 26 reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value 27 The private interest at stake here is the interest applicants for General Assistance benefits have in having their claims correctly decided on the basis of all relevant evidence regarding employability, and not only on evidence formally verified by inedical or mental health professionals. The Court considers this interest to be one of significant weight, because General Assistance benefits are an essential resource for the indigent and unemployable, and because evidence that does not formally meet respondent’s verification standards nonetheless may be relevant to and probative of the issue of whether a particular applicant is employable. The risk of erroneous deprivation of benefits through application of the policies used by 28 ^ See, Administrative Record, page 12. RULING ON SUBMITTED MATTER CASE NO. 34-2012-80001092-CU-WM-GDS 1 because an expert opinion is worth no more than the reasons and facts upon which it is based. (See, 2 Bushling v. Fremont Medical Center (2004) 117 Cal. App. 4\”‘ 493, 510; Kelley v. Trunk {1998) 66 Cal. 3 App. 4\”‘ 519, 524.) It thus should have been given no weight in this proceeding, yet in the final analysis it ^ outweighed other evidence to such an extent that the other evidence was not even considered in reaching the ultimate decision. Basing a decision on an expert opinion that has no evidentiary value, as was done in this case, while refusing to evaluate and weigh other relevant evidence, creates an unacceptably high risk of error. It also creates the risk ofan arbitrary result. The value ofan additional procedural safeguard that would be established by requiring respondents to evaluate and consider all evidence related to employability, regardless of whether it meets respondents’ verification standards, is clear. The application of respondents’ policy in this case infringed petitioner’s dignitary interest in being able to present his side of the story to the responsible governmental officials. While petitioner admittedly was allowed to offer evidence of his employability at the hearing that did not meet respondents’ verification standards, the Administrative Hearing Officer simply refused to consider that evidence in making the ultimate decision. Refusing to recognize or analyze a claimant’s side of the story is 5 6 7 8 9 10 11 12 13 14 15 tantamount to not allowing that side of the story to be presented in the first place. Such an approach to ly relevant evidence violates basic concepts of fair procedure and amounts to arbitrary decision-making 18 Finally, the Court finds that the governmental interests underlying respondents’ policy are of little 19 weight. Respondents simply assert that Administrative Hearing Officers are not qualified to make 20 independent determinations of employability based on inedical evidence, and therefore must be permitted 21 to rely solely on the opinion of a licensed medical professional. Respondents have not established, 22 however, that it would be impossible, impractical, or unduly burdensome to train their Administrative 2-\u0302 Hearing Officers to evaluate all relevant evidence in employability cases. As petitioner argues persuasively, hearing officers in other types of cases, such as Social Security disability cases, evaluate 25 such evidence on a regular basis 26 The Court therefore concludes that respondents have a policy regarding the consideration of 27 \” 28 RULING ON SUBMirrED MATTER CASE NO. 34-2012-80001092-CU-WM-GDS evidence in General Assistance cases involving employability that violates state due process standards. It 2 is clear that the application of that policy in petitioner’s case violated his state due process rights, because 3 it prevented the consideration of potentially relevant evidence, and led to a decision being entered solely ^ on the basis ofa summary medical opinion that was not entitled to any evidentiary weight. ^ The Court further concludes that respondents’ decision in petitioner’s case must be vacated in order to address the due process violation. At the hearing on this matter, the Court asked the parties whether the case should be remanded to the Administrative Hearing Officer for further proceedings, or whether the Court should decide the case itself in the exercise of its independent judgment. The Court concludes that the evaluation of evidence regarding employability in General Assistance cases is a inatter that should be undertaken by the Administrative Hearing Officers in the first instance. The Administrative Hearing Officer has discretion to evaluate the relevant evidence, but application of the invalid evidentiary policy in this case prevented the Administrative Hearing Officer from fully exercising that discretion. The inatter therefore should be remanded to permit the full exercise of administrative discretion. Such a result affords due deference to the legitimate exercise of administrative discretion in General Assistance lg employability cases. ly The petition for writ of traditional mandate under Code of Civil Procedure section 1085 is 8 therefore granted. A writ of mandate shall issue as follows: (1) directing respondents to cease applying 19 their policy of refusing to consider evidence, including inedical evidence, that does not make an express 20 conclusion about whether a General Assistance benefit claimant is employable, or that is not verified by a 21 qualified, licensed medical or mental health professional; (2) directing respondents to vacate their decision 22 in petitioner’s case; (3) remanding the inatter to the Administrative Hearing Officer for reconsideration of 23 all of the evidence admitted at petitioner’s hearing; (4) directing the Administrative Hearing Officer to 24 . . . give no evidentiary weight to Dr. Lipscomb’s opinion; and (5) directing the Administrative Hearing 25 Officer to enter a new decision on petitioner’s appeal based on an evaluation of all the evidence admitted 26 \” 6 7 8 9 10 11 12 13 14 15 ‘ In light of this conclusion, the Court finds it unnecessary to address federal due process requirements separately. 27 As noted by the court in Gresher v. Anderson (2005) 127 Cal. App.4\”‘ 88, 104-105, procedural due process under the California Constitution is \”much more inclusive and protects a broader range of interests than under the federal 28 Constitution\”. 7 RULING ON SUBMITTED MATTER CASE NO. 34-2012-80001092-CU-WM-GDS 1 at petitioner’s hearing. Other than as stated above with regard to Dr. Lipscomb’s opinion, the writ shall 2 not restrict or control the Administrative Hearing Officer’s exercise of discrelion in the evaluation and 3 weighing of the evidence in the record that is relevant to the issue of petitioner’s employability. IV. Administrative Mandate In light of the Court’s ruling that petitioner is entitled to issuance of a writ of mandate under Code of Civil Procedure section 1085 that directs respondents to vacate the decision in his case and that remands the case for reconsideration based on all ofthe evidence received at the hearing, the Court finds that it is unnecessary to address petitioner’s administrative mandate claim under Code of Civil Procedure section 1094.5. The petition for writ of administrative mandate is therefore denied. V. Conclusion 4 5 6 7 8 9 10 11 12 13 14 15 The petition for writ of mandate under Code of Civil Procedure section 1085 is granted for the reasons set forth above. The petition for writ of mandate under Code of Civil Procedure section 1094.5 is denied. Counsel for petitioner is directed to prepare the order, judginent and writ of mandate in accordance with this ruling. The writ shall provide that respondents shall make a return within 60 days, I g setting forth what they have done to coinply with the writ. The Court shall retain jurisdiction over this I I inatter to enforce compliance with the writ as necessary. 18 19 20 DATED: November 8, 2013 21 Jud^ Ml(M4AEL P. l ^ N N Y Superior Court of California, 22 County of Sacraineiyto 23 24 25 26 27 28 RULING ON SUBMI’ITED MATTER CASE NO. 34-2012-80001092-CU-WM-GDS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE BY MAILING (C.C.P. Sec. 1013a(4)) I , the undersigned deputy clerk of the Superior Court of California, County of Sacramento, do declare under penalty of perjury that I did this date place a copy of the above- entitled RULING ON SUBMITTED MATTER in envelopes addressed to each of the parties, or their counsel of record as stated below, with sufficient postage affixed thereto and deposited the same in the United States Post Office at 720 9\”\u0302 Street, Sacramento, California. STEPHEN E. GOLDBERG, ESQ. Legal Services of Northern California 515-12\”‘ Street Sacramento, CA 95814 Dated: November 8, 2013 CATHERINE SPINELLI Deputy County Counsel 700 H Street, Suite 2650 Sacramento, CA 95814 Superior Court of California, County of Sacramento By: S.LEE Deputy Clerk RULING ON SUBMI’ITED MATTER CASE NO. 34-2012-80001092-CU-WM-GDS ”

” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Andrew Kazakes, Esq. SBN 277912 Yolanda Arias, Esq. SBN 130025 LEGAL AID FOUNDATION OF LOS ANGELES 5228 Whittier Boulevard Los Angeles, CA 90022 Telephone: (213) 640-3944 Facsimile: (213) 640-3911 Email: [email protected] [email protected] Attorney for MATEBE TESMA MATEBE IESMA Petitioner, v. No filing fee is Required per Welf. & Inst. Code 10962 CONFORMED COPY RIGINAL FILEDs O umtycsatmcargraka AUG 1 1 2017 Sharri R. Garter, &motive After\/Clerknyi Charlie L Clulemee, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES WILL LIGHTBOURNE, in his official capacity as Director, California Department of Social Services; and the CALIFORNIA DEPARTMENT OF SOCIAL SERVICES Respondents. BS170 8 ) Case No.: ) Unlimited Civil Case ) PETITION FOR WRIT OF ) MANDATE ) [Code of Civ. Proc. 1085, ) 1094.5; Welf. & Inst. Code ) 10962] INTRODUCTION 1. This action challenges the CALIFORNIA DEPARTMENT OF SOCIAL SERVICES’ failure to follow federal and state statutes and regulations that are essential to the fair and efficient operation of the public welfare system, specifically the Cash Assistance Program for Aged, Blind, and Disabled Legal Immigrants (CAP1). The statutes and regulations at issue require the State and the County to provide an exception to income-deeming rules for indigent aged and disabled legal immigrants whose sponsors have abandoned them to ensure that PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this vulnerable population does not lose critical subsistence cash aid due solely to third party negligence. 2. Petitioner, MATEBE TESMA is a disabled legal permanent resident. Mr. I ESMA was approved for CAPI benefits because he is unable to work due to a severe and life- threatening seizure disorder that has damaged his cognition and memory. He is regularly hospitalized from these seizures, which in addition to incrementally harming his brain function also impairs his breathing during acute episodes. Because of his cognitive and memory impairments and the danger of asphyxiation during acute seizures, Mr. TESMA receives In- Home Supportive Services to assist with his daily affairs and to provide continual monitoring and crisis response in the event he suffers a seizure while at home. Mr. Tesma was originally sponsored by one of his adult daughters at the time he immigrated around 2012. His sponsor has since abandoned him, has ceased to provide him with any financial support, and has refused to provide her whereabouts, phone number, or any other means to allow him to initiate contact with her. Mr. TESMA’s modest CAPI income is his sole means of financial survival, which he relies upon to pay for rent, food, medicine, and other basic life necessities. 3. Federal and State rules and regulations allow for sponsor deeming rules to be waived under the indigence exception if a CAPI beneficiary would go hungry and homeless were sponsor deeming rules enforced. The indigence exception is expressly allowed even in cases where the sponsor is unavailable. In an unlawful effort to severely restrict access to the indigence exception, Respondents incoherently maintain that CAPI rules allow a beneficiary to qualify for the indigence exception to sponsor deeming if the beneficiary’s sponsor is unavailable, yet simultaneously require a beneficiary’s termination from the program unless the sponsor is also available to provide a signed income and asset verification. Respondents have relied on this absurd interpretation to terminate Mr. TESMA’s subsistence CAPI welfare benefits. The Respondents’ interpretation of program rules makes a cruel parody of logic and if left uncorrected will cause material prejudice to the rights of other disabled immigrants in this state like the Petitioner. 2 PET11 lON FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. The Petitioner, MATEBE TESMA (\”Mr. 1ESMA\” or \”Petitioner\”) seeks a writ of mandate pursuant to California Code of Civil Procedure Sections 1085 to compel the Respondents WILL LIGHTBOURNE and the CALIFORNIA DEPARTMENT OF SOCIAL SERVICES (CDSS) (hereinafter, collectively, \”Respondents\”) to comply with state and federal statutes and regulations requiring suspension of sponsor-deeming rules for indigent CAPI beneficiaries whose sponsors are unavailable. 5. Mr. TESMA also petitions the Court for a writ of mandate pursuant to California Welfare and Institutions Code Section 10962 and Code of Civil Procedure Sections 1094.5 to overturn Respondents’ administrative decision upholding the termination of Mr. 1ESMA’S CAPI welfare benefits, order Respondents to approve his application for the indigence exception to sponsor deeming, and reinstate his CAPI benefits on an ongoing basis. 6. Mr. 1ESMA also seeks an immediate stay of enforcement of Respondents’ termination decision to prevent the prejudicial loss of subsistence income during the pendency of the instant proceedings. PARTIES 7. The Petitioner, MATEBE TESMA, age 57, is originally from Ethiopia and is a native Amharic speaker. He has limited English proficiency and suffers from several severe disabilities, including a seizure disorder, memory and cognitive impairment, and cerebral toxoplasmosis, among other conditions. Mr. TESMA is regularly hospitalized from his seizures, which in addition to incrementally harming his brain function also impairs his breathing during acute episodes, creating a risk of asphyxiation. Mr. Tesma was originally sponsored by one of his adult daughters, who has since abandoned him, has ceased to provide him with any financial support, and has refused to provide her whereabouts, phone number, or any other means to allow him to initiate contact with her. Respondents have terminated Mr. TESMA’s CAPI benefits because his sponsor is unavailable to provide a signed income and asset verification as part of the CAPI redeteunination process, even though Mr. TESMA’s modest CAPI income is his sole means of financial survival that he relies upon to pay for rent, food, medicine, and other basic 3 PE 11110N FOR WRIT OF MANDA I E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 life necessities. Besides his CAPI benefits, Mr. TESMA is only able to earn around $48-$96 per month for parking lot services provided to his local church on Sundays when he is physically able, and he receives approximately 80 hours per week for in-home supportive services due to his disabling medical conditions. Mr. TESMA has at all relevant times resided in the city and county of Los Angeles. 8. The Respondent, WILL LIGHTBOURNE, is the Director of the California Department of Social Services. As Director, he is charged under Welfare and Institutions Code Section 10553 with administering the CAPI program. His duties with respect to the CAPI program are partially set out in Welfare and Institutions Code Section 18937, et seq. The Respondents must comply with both state and federal law. The Respondents WILL LIGHTBOURNE is sued in his official capacity. 9. The Respondent, CALIFORNIA DEPARTMENT OF SOCIAL SERVICES (CDSS), is the single state agency responsible for supervising the administration of public social services in California, including the CAPI program, in order to secure full compliance with applicable state and federal laws. Welf. & Inst. Code 10600. For Los Angeles County, the Respondent has delegated responsibility for administration of the CAPI program to the Los Angeles County Department of Public Social Services (\”the County\”). At all relevant times, the County was and is the agent of the Respondents. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY 10. Mr. TESMA, age 57, is originally from Ethiopia and is a native Amharic speaker with limited English proficiency. Mr. Tesma is a legal immigrant who obtained permanent legal resident status on or about February, 2012. Mr. TESMA has resided in the city and county of Los Angeles at all times relevant to this case. 11. Mr. TESMA was approved for CAPI benefits because he is unable to work due to a severe and life-threatening seizure disorder that has damaged his cognition and memory. He also suffers from cerebral toxoplasmosis and a serious condition affecting his immune function. He is regularly hospitalized due to his seizures, which in addition to incrementally harming his 4 PETITION FOR WRIT OF MANDA I E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 brain function also impairs his breathing during acute episodes. Because of his cognitive and memory impairments and the danger of asphyxiation during acute seizures, Mr. TESMA receives approximately 80 hours per month for In-Home Supportive Services to assist with his daily affairs and to provide continual monitoring and crisis response in the event he suffers a seizure while at home. 12. Mr. TESMA applied for CAPI benefits on or about October 28, 2015. His application was approved on or about April 26, 2016 and he began receiving approximately $880 per month in cash assistance, which he has relied upon to secure food, housing, medicine, and other basic life necessities. 13. Mr. l’ESMA’s immigration sponsor is Kalkidan Matebe Teshale (hereinafter \”Kalkidan\”), one of his two adult daughters. Kalkidan previously lived at Mr. TESMA’s current residence but moved out of state sometime in the last few years. Kalkidan did not provide Mr. 1’ESMA any means to contact her, neither her address nor her phone number. Since leaving, Kalkidan has unilaterally contacted Mr. TESMA by telephone on occasion and indicated that she cannot help him anymore because she is now married, has a child and housing costs, and is also taking care of her mother. Mr. TESMA does not remember when these phone calls occurred, but he attempted to obtain Kalkidan’s phone and address and she has refused to provide this information or to provide him with any financial support. To the best of his ability given his memory and cognitive impairments, Mr. IhSMA recalled that the last of these phone calls occurred prior to the County commencing the CAPI redetermination and sponsor verification process at issue in this case. Mr. TESMA does not know Kalkidan’s whereabouts or what her current income and assets are, nor does he have the ability to initiate contact with her. 14. On or about September 20, 2016, Mr. TESMA appears to have gotten assistance to submit a SOC-804 forms to the County on which it was indicated that his daughter had previously provided him with approximately $150 worth of assistance, but that this assistance The title of this form is \”Statement of Facts for Determining Continuing Eligibility for the Cash Assistance Program for Immigrants (CAPI).\” 5 PE III ION FOR WRIT OF MANDA I h 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 \”stopped since 5\/1\/2016\” or earlier. May 1, 2016 represents the date when Mr. IE,SMA was approved for CAPI benefits and on information and belief, Mr. TESMA may have ceased receiving assistance from his sponsor sometime prior to May 1, 2016 but indicted this date on this form because it was the first month he believed was relevant for CAPI program purposes. Mr. TESMA does not specifically remember completing and submitting this SOC-804 form. 15. On November 2, 2016 and November 22, 2016, the County allegedly sent notices to Kalkidan requesting verification of her income and resources via a SOC-860 form.2 The second request gave a December 7, 2016 response deadline. These requests were apparently sent to Mr. TESMA’s home address, where Kalkidan previously resided but was no longer residing. Mr. TESMA does not remember receiving these notices and would not have been able to understand and competently respond to them on his own due to his cognitive impairments and limited English proficiency. Even if they were delivered, there was no way for Mr. TESMA to contact Kalkidan to request that she submit this information, and she had already indicated that she had abandoned Mr. TESMA and had no intention of providing him with any financial support. 16. Mr. TESMA obtained legal assistance through the Legal Aid Foundation of Los Angeles (LAI-LA) beginning on November 21, 2016, initially to help him with an In-Home Supportive Services (MSS) issue. While interviewing Mr. Tesma regarding his IHSS problem, Mr. Tesma mentioned to LAI-LA attorney Yolanda Arias that he was told by the County that his CAPI benefits were going to be stopped but he did not know why. Ms. Arias initiated an inquiry with the County regarding the status of Mr. TESMA’s CAPI benefits. Human Resources Administrator Karine Tioufenktchian responded via email that Mr. TESMA’s CAPI would be terminated unless his sponsor provided her signed income verification, citing Manual of Policies and Procedures section 49-037.512 (hereinafter \”MPP\”). In response, LAFLA attorney Andrew 2 The title of this form is \”Sponsor’s Statement of Facts[:] Income and Resources.\” 6 PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kazakes prepared a SOC-809 forma to request the indigence exception and a signed statement in support thereof from Mr. TESMA indicating that Mr. TESMA did not know his sponsor’s current whereabouts, that Mr. TESMA’s sponsor had indicated she had financially abandoned Mr. 1ESMA, and requested that Mr. TESMA be evaluated for the indigence exception to sponsor deeming rules because he relied on his CAPI benefits to buy food and pay rent. These documents were submitted to Mr. ‘I ESMA’s eligibility worker Shakeh Hartoonian on December 1, 2016 via fax. After Ms. Hartoonian did not respond, Mr. Kazakes forwarded these documents directly to Ms. Tioufenktchian on December 20, 2016. The County acknowledged receipt of Mr. TESMA’s request for the indigence exception. 17. In response, Ms. Tioufenktchian informally and ambiguously indicated in an email to Attorney Kazakes dated January 17, 2017 that Mr. 1ESMA’s request for the indigence exception could not be evaluated (neither approved nor denied) without first submitting a signed statement from the sponsor regarding her income and resources, and indicated that the sponsor’s failure to do so would result in termination of Mr. TESMA’s CAPI benefits without review of the indigence exception. After Mr. Kazakes sought further clarification, Ms. Tioufenkchian further responded in a January 18, 2017 email that Mr. TESMA could qualify for the indigence exception if he asked his daughter to provide her income information and provide a letter stating that she is refusing to cooperate. These shifting, inconsistent responses from the County failed to account for the fact that Mr. TESMA was unable to initiate contact with his sponsor and that Mr. 1E,SMA had already indicated in writing that his sponsor had unequivocally told him that she was refusing to cooperate with her sponsorship responsibilities. The County also improperly failed to approve Mr. TESMA’s indigence application even though he satisfied all criteria for approval under state and federal statutes, regulations, and rules. 18. The very next day, and without providing any formal notice of action in response to Mr. 1 ESMA’s indigence exception request, the County issued three concurrent termination 3 The title of this form is \”Cash Assistance Program for Immigrants (CAPI) Indigence Exception Statement.\” 7 PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 notices dated January 19, 2017 for alleged non-cooperation with CAPI program requirements.4 These notices were inadequate and did not provide any explanation, as required by due process and state and federal regulations, as to why Mr. TESMA’s application for the indigence exception was not approved or even considered. These notices also failed to explain what allegedly missing information or incomplete action was requested from Mr. TESMA or his sponsor in order to comply with CAPI program requirements or indigence exception criteria, which left Mr. TESMA unaware of the specific reason for the termination or the opportunity to comply with any performance that allegedly remained due from him. 19. Attorney Kazakes initiated further communications on January 24, 2017 to explain to the County why it was logically and practically problematic to require a signed sponsor verification before considering the indigence exception to sponsor deeming given that the sponsor had abandoned Mr. TESMA and the indigence exception regulations expressly provide for circumstances in which the sponsor cannot be located. Human Services Administrator Alma Calvelo, on behalf of the County, responded in a January 25, 2017 email by reiterating the position that the indigence exception could not even be considered because Mr. TESMA’s sponsor had not submitted her signed income and asset verification. 20. In this January 25, 2017 email, the County also informally refused to accept Mr. TESMA’s statement that he was dependent on CAPI to pay for food and shelter and was receiving no financial support from his sponsor, incorrectly claiming there was a conflict between Mr. TESMA’s statements regarding sponsor abandonment and the County file because the sponsor’s last known address was listed at Mr. TESMA’s residence. This informal position by the County was later abandoned by Respondents at the May 2, 2017 hearing and did not form any part of the basis of the Respondents’ decision to uphold the termination of Mr. TESMA’s CAPI benefits. 4 The County had previously issued a pair of CAPI termination notices on Oct. 19, 2016, asserting an effective termination date of October 31, 2016. These notices were apparently canceled or rescinded. 8 PETITION FOR WRIT OF MANDA I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21. Mr. TESMA, through counsel, requested a state hearing on January 19, 2017 to challenge the termination of his CAPI benefits and a state hearing was held on May 2, 2017 (Hearing No. 2017025357). Mr. TESMA was present and all parties and the ALJ had the opportunity to question Mr. TESMA at the hearing, with the assistance of an Amharic interpreter provided by Respondents. 22. During the hearing, the County did not dispute that Mr. TESMA’s sponsor could not be located or contacted, or that Mr. TESMA would be unable to secure food and shelter without his CAPI cash aid, and no evidence was offered to contradict Mr. TESMA’s statements that he is not receiving any financial support from his sponsor. Nor was a determination ever made that Mr. ‘1ESMA lacked credibility with respect to any testimony or statements made before, during, or after the hearing. 23. At the conclusion of the hearing, the ALJ inquired whether the parties were aware of recent All-County Letter (ACL) No. 17-33. Representatives for the parties indicated that they were not. At the time, CDSS policy guidance on the indigence exception was contained in ACL No. 02-63 and ACIN No. I-47-12. ACL No. 02-63 contained language allowing the indigence exception where the sponsor could not be located to provide a signed income and asset verification. Similarly, ACIN No. I-47-12 directed county welfare departments to \”presume that sponsor deeming would affect CAPI eligibility and\/or grant amounts in all [indigence exception] cases, thereby meeting the requirement in MPP Section 49-037.411.\” ACL No. 17-33 purported to supersede ACIN No. I-47-12 and implicitly departed from CDSS policy contained in ACL No. 02-63. 24. The ALJ consequently provided the parties with two weeks to submit supplemental briefing regarding ACL No. 17-33. LAMA submitted a supplemental brief on behalf of Mr. TESMA on May 16, 2017 along with written objections to ACL No. 17-33 as an improper and retroactive effort to interfere with Mr. TESMA’s right to a fair hearing and a subpoena request for communications by state officials to obtain corroborating evidence of the improper purpose behind ACL No. 17-33. On June 12, 2017, the ALJ issued a written decision 9 PETITION FOR WRIT OF MANDA 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (\”the decision\”) upholding the termination of Mr. TESMA’s CAPI benefits, affirming the state’s failure to approve or even consider Mr. TESMA’s application for the indigence exception. The decision also overruled the objections to ACL No. 17-33 and denied the subpoena request. Counsel received this decision in the mail on June 19, 2017. 25. Principally relying on ACL No. 17-33, the ALJ’s asserted basis for the decision was the absence of evidence that Mr. TESMA had asked his sponsor to sign an income and asset verification form, even though the County and the ALJ failed to address or develop this issue during the hearing. 26. Counsel for Mr. TESMA submitted a request for rehearing on July 13, 2017 with a supplementary statement by Mr. TESMA. This request has been acknowledged by Respondents but at the time of filing the instant action no action has yet been taken in response.5 27. Mr. TESMA’s supplemental statement was necessary because the ALJ and the County failed to develop the record concerning the ultimate reasons asserted for the decision, namely his alleged failure to ask his sponsor to provide a signed income and asset verification. In his supplemental statement, Mr. TESMA provided clarification that to the best of his disability- impaired memory, the phone calls from his sponsor that the ALJ cited as alleged opportunities to request the sponsor’s signed income and asset verification all occurred prior to the commencement of the sponsor verification process at issue in the case. The statement also indicated that even during these past phone calls, his sponsor had begun to hang up on him as soon as he broached the subject of her sponsorship responsibilities and that it would be futile, even if he had the present opportunity to do so, for him to request a signed income and asset verification from his sponsor. This statement also indicated that Mr. TESMA does not know what his sponsor’s income or assets are currently, and that Mr. TESMA does not recall ever being told by Respondents that there was a requirement for him to ask his sponsor over the 5 Pursuant to Welfare and Institutions Code Sections 10960(e) and 10962, submission of a rehearing request or the rendering of a decision on a rehearing request are not prerequisites to filing the instant Petition. 10 PETITION FOR WRIT OF MANDA 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 phone to provide her income and asset verification in order to qualify for the indigence exception to sponsor deeming. 28. Ms. Tesma respectfully petitions this court for a writ of administrative mandate, pursuant to California Code of Civil Procedure Sections 1085 and 1094.5, to overturn the Respondents’s decision and to Order Respondents to conform their policies and procedures to the law. Mr. TESMA is entitled to CAPI benefits from January 19, 2017, to the present and ongoing. BACKGROUND ON CAPI PROGAM AND INDIGENCE EXCEPTION 29. This case involves the CAPI indigence exception to sponsor-deeming rules. CAPI is a California public welfare program that provides cash assistance to aged and disabled legal immigrants who would otherwise be eligible for Federal Supplemental Security Income (SSI) cash assistance but for immigration status. 30. Deeming rules provide that the income and assets of certain individuals, including immigration sponsors, can be deemed as the income and assets of the beneficiary in determining CAPI eligibility and benefit amount. The indigence exception to sponsor-deeming allows a beneficiary to be financially eligible for CAPI, despite having an immigration sponsor who has signed an affidavit of support, if the individual would be unable to obtain food and shelter without CAPI cash aid. The express policy purpose underlying the indigence exception is \”to prevent the sponsored immigrant from falling into total distress if the sponsor defaults on his or her obligation. The agency may then provide assistance, assuming the sponsored immigrant is otherwise eligible, and collect the cost of the benefits from the sponsor.\” 71 FR 35732, 35743 (Vol. 71, No. 119, Part II, Wednesday, June 21, 2006).6 6 Provisions in the 1-864 Affidavit of Support form assign liability to the sponsor for failure to comply with sponsorship obligations. See 71 FR 35732, 35741 (Vol. 71, No. 119, Part II, Wednesday, June 21, 2006)(\”Moreover, the Form I-864… makes the sponsor responsible for reimbursing agencies for the costs of means-tested public benefits.\”). II PETITION FOR WRIT OF MANDAIE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Legislative Incorporation of Federal Statutes, Regulations, and Rules 31. The authorizing statute for the CAPI program is found at California Welfare and Institutions Code Section 18937 et seq. Through Section 18940(b), the California Legislature expressly incorporated federal deeming rules and related exceptions governing the SSI\/SSP program to apply to the CAPI program, and specifically emphasized that this included \”all federal and state laws and regulations designed to protect SSI\/SSP recipients and their resources . . . \” Welf. & Inst. Code 18940(b)(emphasis added). 32. The federal law creating the indigence exception to sponsor deeming is located at 8 U.S.C. Section 1631(e): (e) Indigence exception[:] (1) In general[:] For an alien for whom an affidavit of support [1 has been executed, if a determination described in paragraph (2) is made, the amount of income and resources of the sponsor [1 which shall be attributed to the sponsored alien shall not exceed the amount actually provided for a period beginning on the date of such determination and ending 12 months after such date. (2) Determination described[:] A determination described in this paragraph is a determination by an agency that a sponsored alien would, in the absence of the assistance provided by the agency, be unable to obtain food and shelter, taking into account the alien’s own income, plus any cash, food, housing, or other assistance provided by other individuals, including the sponsor. 8 U.S.0 1631. (emphases added). 33. 8 U.S.C. Section 1631(e) consists of a protection for SSI\/SSP recipients pursuant to Welfare and Institutions Code Section 18940(b) and is incorporated thereby into the Welfare and Institutions Code as a statutory provision governing the CAPI program. 34. 8 U.S.C. Section 1631(e) creates an exception and qualification to the general federal sponsor deeming rules found in 42 U.S.C.S. Sections 1382j(b) and (d). These sections do not require collection of any specific forms of information (such as a sponsor’s signed verification of income and assets), but instead place a general responsibility on the beneficiary to 12 PE 1’1\”1 ION FOR WRIT OF MANDA 1 h 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provide information necessary to make an overall determination about the application of sponsor deeming rules: (b) Determination of amount and resources. (1) The amount of income of a sponsor (and his spouse) which shall be deemed to be the unearned income of an alien for any year shall be determined as follows: [describing sponsor income and asset deeming calculation methods]. (d) Information and documentation . . . . (1) Any individual who is an alien shall . . . be required to provide [] such information and documentation with respect to his sponsor as may be necessary in order [] to make any determination required under this section, and to obtain any cooperation from such sponsor necessary for any such determination. 42 USCS 1382j (emphasis added). 35. 8 U.S.0 Section 1631(e) augments 42 USCS Section 1382j by rendering unnecessary a determination of the sponsor’s specific income and assets because under Section 1631(e)(1), \”the amount of income and resources of the sponsor . . . which shall be attributed to the sponsored alien shall not exceed the amount actually provided . . . .\” Under 8 U.S.C. Section 1631(e)(2), the sponsor-deeming determination is made without reference to the sponsor’s actual income and assets, but considers only the \”cash, food, housing, or other assistance provided by other individuals, including the sponsor.\” Section 1631(e) thereby sets an express limitation on the information necessary to make a sponsor-deeming determination under 42 USCS 1382j(b); when the indigence exception under Section 1631(e) applies, only the assistance actually provided by the sponsor is necessary to make a sponsor-deeming determination under 42 U.S.C.S. Section 1382j(b). 36. 8 U.S.C. Section 1631(e) does not require as a prerequisite for the indigence exception any demonstration by the beneficiary that imputation of verified income or assets from the sponsor would affect program eligibility, only that the beneficiary would be unable to obtain food and shelter if deprived of CAPI benefits. Under California law (through incorporation of these federal provisions) where the indigence exception applies under 8 U.S.C. 1631(e), it is unnecessary to make a determination about the actual income and assets of the sponsor because 13 PETITION FOR WRIT OF MANDA lb 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the only information necessary to make a sponsor-deeming determination under 42 U.S.C.S. Sections 1382j(b) and (d) in that circumstance is the amount of income and assets actually provided to the beneficiary, which the beneficiary can self-verify under federal regulations. 37. The Social Security Administration uses the Program Operations Manual System (the POMS) to administer a range of Social Security programs, including SSI. The POMS sections that pertain to deeming rules and related exemptions are expressly incorporated into the California Welfare and Institutions Code. Welf. & Inst. Code 18940(b). 38. POMS SI Section 00502.280 sets forth the procedure for applying the indigence exception to sponsor deeming. Under this POMS Section, the indigence exception applies, and sponsor-deeming is suspended, when two criteria are met: [1] sponsor deeming results in denial or suspension of an alien’s SSI eligibility, or reduction in the SSI benefit payable to an alien; and [2] the alien is unable to obtain both food and shelter. POMS SI 00502.280(B). 39. POMS SI Section 00502.280(D) expressly provides that a beneficiary can qualify for the indigence exception by self-verifying the income and assets made available by the sponsor in circumstances where the sponsor is unavailable and cannot be located: D. Procedure–Developing And Documenting Deeming Exception Cases involving the indigence exception are sensitive cases and, as such, require tactful questioning. 1. Determine Whether Deeming Exception Applies If the alien lives with his or her sponsor, determine that the exception does NOT apply. If the alien lives apart from his or her sponsor, develop the alien’s income and resources. If the income [] the alien actually receives is less than the FBR and resources available to the alien are under the applicable resource limit, determine that the alien meets the criteria for exception from deeming. 14 PE I I I ION FOR WRIT OF MANDA l’h, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21` 22 23 24 25 26 27 28 2. Contact the Sponsor Contact the sponsor to confiuiii the alien’s allegations regarding amounts of income and resources the sponsor provides or makes available to the alien. If the alien does not know the sponsor’s whereabouts, contact DHS using DHS Form G-845 to obtain the sponsor’s address. If you cannot locate the sponsor, accept the alien’s signed allegation if the allegation is credible and does not conflict with other information in file. If the allegations are not creditable or conflict with other infoiination in file, weigh all evidence in file and make a decision based on all the information you have obtained. POMS SI 00502.280(D)(2) (textual emphases added, bold headings in original). CDSS Manual of Policies and Procedures and Policy Interpretations 40. CDSS publishes regulations governing its program operations in the Manual of Policies and Procedures (MPP). Pursuant to Government Code Section 11342.2, the MPP must be in accord with governing statutory provisions, and MPP provisions that conflict with governing statutes are void and unenforceable. Derived from governing federal statutes and regulations, as incorporated by state statute, MPP Section 49-037 contains CDSS policy on sponsor deeming and the indigence exception. 41. MPP Section 49-037 is entitled \”Sponsor Deeming.\” Under MPP Section 49- 037.23, \”Sponsor deeming does NOT apply under either basic CAPI or extended CAPI if a sponsor has signed a New Affidavit of Support and any of the following is true: . . . [] The county determines that the non-citizen meets the criteria for the indigence exception as described in MPP Section 49-037.4.\” (MPP 49-037.23). Under the MPP, a person is therefore exempt from CAPI sponsor deeming rules in Section 49-037 if: .411 Sponsor-deeming results in denial, suspension, or reduction of CAPI benefits; .412 The non-citizen is unable to obtain both food and shelter; .413 The non-citizen completes and signs the CAPI Indigence Exception Statement (SOC 809); and .414 The county determines that the indigence exception applies. (MPP 49-037.4 et. seq.) 15 PETITION FOR WRIT OF MANDA 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 42. Like the POMS, the MPP provides for approval of the indigence exception in circumstances where the sponsor cannot be located: [49-0371.46 The county must do all of the following whenever the non-citizen has requested the indigence exception: .461 Obtain a completed form (SOC 809) signed by the non- citizen specifically applying for the exception that provides information regarding his or her living arrangements and income. .462 Contact the sponsor to confirm the non-citizen’s allegations regarding the amount of income and resources that the sponsor provides or makes available to the non-citizen. (a) Contact INS for the sponsor’s address if the sponsor’s whereabouts are unknown. (b) If the sponsor cannot be located, accept the non- citizen’s allegation if it is credible and does not conflict with other information in the file. .463 Based on all available evidence, prepare a written determination as to whether the indigence exception applies or not. If the exception does apply: (a) Determine the amount of income and support the non-citizen receives from the sponsor plus other sources, and the resources available to the non-citizen. Determine CAPI eligibility and payment amount based on these figures. (b) Notify the Immigration and Naturalization Service and the Department of the determination. MPP 49-037.46 (emphasis added). 43. Federal regulations define the term \”deeming\” to identify not just the computational act of imputing verified sponsor income and assets to the beneficiary, but rather the entire \”process of considering another person’s income to be your own.\” 20 C.F.R. 416.1160 (a). This sponsor deeming process includes verification of sponsor income and assets as an initial step: 16 PE ION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Steps in deeming. Although the way we deem income varies depending upon whether you are an eligible individual, an eligible child, an alien with a sponsor, or an individual with an essential person, we follow several general steps to determine how much income to deem. (1) We determine how much earned and unearned income your . . . sponsor . . . has, and we apply the appropriate exclusions. (2) Before we deem income to you . . . we allocate an amount for each ineligible child in the household. (3) We then follow the deeming rules which apply to you.\” 20 C.F.R. 416.1160(c)(first emphasis in original, second emphasis added). 44. Federal regulations define the term \”deeming\” to include the verification of a sponsor’s income and assets as a first step in the overall deeming process. This definition clarifies the scope of the term \”sponsor-deeming\” as used in MPP Section 49-037.411. Under the federal definition of deeming, MPP Section 49-037.411 is satisfied when either sponsor income and asset verification rules (20 C.F.R. 416.1160(c)(1)) or income imputation rules (20 C.F.R. 416.1160(c)(3)) adversely affects a beneficiary’s CAPI benefits. This plain-meaning statutory construction of indigence exception rules is buttressed by the express allowance for the indigence exception in circumstances where the sponsor cannot be located (and by extension is unavailable to provide sponsor verification). POMS SI 00502.280(D)(2). This construction also comports with the common-sense purpose of the indigence exception, which is to provide a safe- harbor to prevent the loss of subsistence income to disabled immigrants due solely to sponsor non-compliance. 45. In addition to promulgating rules through the MPP, CDSS from time to time issues All-County Letters (ACLs) and All-County Information Notices (ACINs) providing policy guidance and interpretation of program rules. 17 PETITION FOR WRIT OF MANDA IF. 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 46. In January 2017, when Respondents took action to terminate Mr. TESMA’s CAPI benefits, CDSS guidance on the indigence exception was contained in ACL No. 02-63 and ACIN No. I-47-12. ACL No. 02-63 contained language allowing the indigence exception where the sponsor could not be located to provide a signed income and asset verification. It also mandated the issuance of a written determination notice in response to any indigence exception application, as required by POMS SI Section 00502.280(D): Determine, based on the immigrant’s living arrangements and income (and sponsor’s verification, when available), if the indigence exception applies. Include a written determination (use the attached Indigence Exception Deteiiiiination form SOC 813) in the casefile. ACL No. 02-63, Pg. 5 (emphases added). Similarly, ACIN No. I-47-12 directed county welfare departments to \”presume that sponsor deeming would affect CAPI eligibility and\/or grant amounts in all [indigence exception] cases, thereby meeting the requirement in MPP Section 49-037.411.\” 47. In direct response to Mr. TESMA’s case, and after the hearing process challenging the termination of his CAPI benefits was already underway, CDSS issued a new letter, ACL No. 17-33 containing a change in policy upon which the ALJ retroactively relied in upholding the termination of Mr. TESMA’s benefits for lack of a signed sponsor income and asset verification. ACL No. 17-33 reads, in relevant part: For the indigence exception to apply, sponsor deeming must result in denial, suspension or reduction of CAPI benefits. MPP 49- 037.411. . . . In cases where the sponsor fails to complete SOC 860 (or equivalent) to the county’s satisfaction (including requested verifications), the county will not be able to accurately determine whether sponsor deeming applies or whether the indigence exception applies. Accordingly, the county must deny or terminate CAPI benefits pursuant to MPP 49-037.512. ACL No. 17-33, Page 4, last full paragraph. 48. On its face, ACL No. 17-33 purports to supersede ACIN No. I-47-12, but does not purport to supersede nor reference ACL No. 02-63. 18 PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUMMARY OF RESPONDENTS’ ERRORS OF LAW 49. ACL No. 17-33 erroneously, and in excess of statutory authorization, asserts that signed sponsor verification of income and assets is a requirement to qualify for the indigence exception: Additionally, as part of the indigence exception, CAPI regulations specifically require that the county obtain a signed statement from the sponsor(s) regarding the sponsor’s income and resources. MPP 49-037.53. Not only is this signed sponsor verification requirement absent from governing statutes and regulations setting forth indigence exception rules, but this requirement is not even included in MPP criteria for the indigence exception contained in Section 49-037.4. As such Respondents indigence exception policy both illegally impairs the scope of governing statutes contrary to legislative intent and to the detriment of vulnerable California welfare recipients whose sponsors have abandoned them, and constitutes a failure by Respondents to follow their own published policy. The ALT erroneously relied on ACL No. 17-33 to justify Respondents’ termination decision. 50. ACL No. 17-33, both on its face and as applied by Respondents, conflicts and is inconsistent with state and federal statutes and regulations, including Welfare and Institutions Code Section 18940(b), 8 U.S.C. Section 1631(e), 42 U.S.C.S. Sections 1382j(b) and (d), 20 C.F.R. 416.1160, and POMS SI Section 00502.280. None of these authorizing statutes and rules requires submission of a signed income and asset verification from an immigration sponsor for a CAPI beneficiary to be eligible for the indigence exception to sponsor-deeming. Instead, these authorities all recognize, implicitly and explicitly, that the indigence exception is available even if the sponsor’s whereabouts are unknown and the beneficiary cannot secure the sponsor’s signed income and asset verification. 51. ACL No. 02-63 apparently remains in effect yet is in direct conflict with ACL No. 17-33 with respect to whether obtaining a sponsor signed verification of income and assets is a prerequisite to qualifying for the indigence exception to sponsor deeming, though the 19 PE 111 ION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondents’, through the ALJ, failed to reconcile this conflict. In addition, ACIN No. I-47-12, which ACL No. 17-33 purports to supersede, remained in effect at the time Respondents made the decision to terminate Mr. TESMA’s CAPI benefits, yet Respondents retroactively applied ACL No. 17-33 as a legal justification for the decision, in violation of basic principles of fairness and due process as set forth in the California Constitution, Article I, Section 7, as well as the Administrative Procedures Act. Cal. Gov. Code 11340.5 (proscribing formal adoption and presentation of regulations to Secretary of State); Cal. Gov’t Code 11343.4 (specifically indicating effective date of properly adopted regulations). 52. ACL No. 17-33 constitutes a regulation under Government Code Section 11342.600. Respondents never submitted ACL No. 17-33 to the Secretary of State as required by Government Code Section 11340.5, as confirmed by the fact that ACL No. 17-33 does not appear on the Office of Administrative Law’s website on its listing of regulations recently filed with the Secretary of State.7 53. Respondents, acting through the ALJ, incorrectly narrowed MPP Section 49- 037.411 to mean that a beneficiary such as Mr. TESMA must establish that the imputation of a sponsor’s verified income must result in teiiiiination, suspension, or reduction of CAPI benefits in order for the indigence exception to be available. Federal definitions make clear, however, that the term \”sponsor deeming\” in MPP Section 49-037.411 includes the process of verifying the sponsor’s income and assets as well as the computational imputation of said income to the beneficiary once verified. Thus, proper construction of MPP Section 49-037.411 entails that this indigence exception criterion is satisfied if application of either sponsor verification rules or computational deeming rules result in termination, suspension, or reduction of CAPI benefits. The ALJ therefore misapplied the law in finding that Mr. 1ESMA could not qualify for the indigence exception because a signed sponsor verification was required to satisfy the indigence exception criterion in MPP Section 49-037.411. 7 See https:\/\/oal.ca.goviregulations_reeently_filed_with_the_sos\/ 20 PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 54. When read as a whole, the statutory scheme setting forth the requirements for the indigence exception allows for approval of the exception even when the sponsor’s whereabouts are unknown and the sponsor fails to submit a signed income and asset verification. Respondents’ written interpretation of indigence exception rules, as adopted and applied by the All in this case, is in conflict with the statutory scheme and is also internally incoherent in that it expressly -penults sponsor unavailability yet simultaneously requires the sponsor to be available to provide a signed verification. It also renders as mere surplusage governing rules that allow for sponsor unavailability in violation of well-established nouns of statutory construction. Respondents’ ultra vires, incoherent policy has been deployed to unlawfully prejudice disabled, indigent immigrants like Mr. TESMA who rely on CAPI benefits as their sole subsistence-level income. REQUISITES FOR RELIEF 55. The instant application for writ of administrative mandate and traditional mandate herein requested under Code of Civil Procedure 1085 and 1094.5 is Mr. TESMA’S sole and exclusive remedy for review of Respondents’ decision upholding the termination of Mr. TESMA’s CAPI benefits. Mr. TESMA has a beneficial interest in the outcome of the 1085 and 1094.5 proceedings. 56. This verified petition is brought under Code of Civil Procedure 1094.5 and is authorized by Welfare & Institutions Code Section 10962, which permits filing a petition to review the entire proceeding conducted by the Department of Social Services (CDSS). Under Code of Civil Procedure Section 1094.5 and Welfare and Institutions Code Section 10962, no filing fee or bond is required for such filing. 57. This verified petition is also brought under Code of Civil Procedure Section 1085 and is authorized by Conlan v. Bonta,102 Cal.App.4th 745, 751-52 (2002) to be asserted simultaneously with a Section 1094.5 action to compel Respondents’ compliance with its duty to administer public welfare benefits programs and administrative procedures in accordance with state and federal statutes, regulations, and rules. 21 PETITION FOR WRIT OF MANDA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 58. California has declared that public social services are to be administered in full compliance with applicable federal and state laws. Welf. & Inst. Code 10600. 59. Respondents each have a ministerial duty to comply with the state and federal regulations set forth above and they continue to violate these statutes and regulations. 60. An actual and continuing controversy exists between Petitioner and Respondents regarding Respondents’ duties as alleged above. Petitioners contend that the actions of Respondents violate the law as specified above. Petitioners are informed and believe that Respondents will dispute this contention. 61. Petitioner is beneficially interested in the faithful execution of Respondents’ duties, has exhausted available administrative remedies, and has no other adequate, plain or speedy remedy at law to obtain Respondents’ compliance other than the relief sought by this complaint and petition. Respondents’ failure and refusal to carry out the aforesaid duties has caused substantial hardship to Petitioner and other persons similarly situated. 62. Unless, compelled to perfoim their duties and obligations in accordance with law, Respondents will continue to fail to do so. 63. This is a matter of significant public concern. The ongoing violation and misapplication of the indigence exception to sponsor deeming rules causes the unjust and unlawful deprivation of subsistence income to aged and disabled immigrants whose sponsors have ceased to provide them with support, and will continue to needlessly cause affected beneficiaries to challenge this violation, causing a drain on public funds. 64. The real parties in interest here and those who will be affected by the judgment of this court are the Petitioner and Respondents named above, as well as similarly situated public welfare recipients subject to sponsor deeming rules who have or will apply for the indigence exception to sponsor deeming or who challenge agency actions with the expectation that the adjudicatory process is administered fairly and in compliance with standards of substantive and procedural due process. 22 PETITION FOR WRIT OF MANDA 1E, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST CAUSE OF ACTION (Abuse of Discretion – Failure to Proceed in the Manner Required by Law) (Administrative Mandamus Pursuant to Code of Civil Procedure 1094.5) 65. Petitioner realleges and incorporates by reference each and every paragraph and allegation contained in this Petition as though fully set forth herein. 66. The Respondents prejudicially abused their discretion by adopting a decision that failed to proceed in the manner required by law. The Respondents’ decision does not comply with applicable state and federal statutes and regulations governing the administration of the CAPI program (specifically including, without limitation, those statutes, regulations, and rules governing the indigence exception to sponsor deeming) and state hearings, as set forth in Paragraphs 7-54. 67. Respondents, through the actions of the AU, committed errors of law by failing to approve, or even to consider, Mr. TESMA’s indigence exception application as previously set forth above in Paragraphs 7-54 and summarized in Paragraphs 49-54. 68. The issue in this cause of action concerns a matter of law and de novo review of the Respondents’ decision is thereby authorized; the reviewing court does not defer in any way to the Respondents’ interpretation of the law. Ruth v. Kizer, 8 Cal.App.4th 380, 385 (1992). SECOND CAUSE OF ACTION (Abuse of Discretion – Failure to Proceed in Manner Required by Law) (Traditional Mandamus Pursuant to Code of Civil Procedure 1085) 69. Petitioner realleges and incorporates by reference each and every paragraph and allegation contained in this Petition as though fully set forth herein. 70. The Respondents prejudicially abused their discretion by adopting a decision that failed to proceed in the manner required by law. The Respondents’ decision does not comply with applicable state and federal statutes and regulations governing the administration of the CAPI program (specifically including, without limitation, those statutes, regulations, and rules 23 PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 governing the indigence exception to sponsor deeming) and state hearings, as set forth in Paragraphs 7-54. 71. Respondents, through the actions of the AU, committed errors of law by failing to approve, or even to consider, Mr. TESMA’s indigence exception application as previously set forth above in Paragraphs 7-54 and summarized in Paragraphs 49-54. 72. The Respondents are willfully failing to perform their public duty to fully and fairly administer the CAPI program (specifically including, without limitation, those statutes, regulations, and rules governing the indigence exception to sponsor deeming) and state hearings in accordance with governing statutes, regulations, and rules, as set forth in Paragraphs 7-54. An Order of Mandamus from this Court directing Respondents to comply with the law in the administration of its public duties is required to protect Petitioner and those similarly situated from prejudicial harm to their vested right to public benefits that will foreseeably continue in the absence of such Order. 73. The issue in this cause of action concerns a matter of law and de novo review of the Respondents’ decision is thereby authorized; the reviewing court does not defer in any way to the Respondents’ interpretation of the law. Ruth v. Kizer, 8 Cal.App.4th 380, 385 (1992). THIRD CAUSE OF ACTION (Denial of Fair Trial) (Administrative Mandamus Pursuant to Code of Civil Procedure 1094.5) 74. Petitioner realleges and incorporates by reference each and every paragraph and allegation contained in this Petition as though fully set forth herein. 75. The Respondents failed to conduct a fair trial in violation of Petitioner’s substantive and procedural due process rights. 76. As set forth in Paragraphs 7-54, Respondents, through the actions of the ALJ failed to provide Mr. TESMA with a fair trial by: a. Terminating Mr. TESMA’s CAPI benefits without adequate or proper notice; 24 PETITION FOR WRIT OF MANDA I E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Failing to approve or even consider his formal, timely, and complete request for the indigence exception to sponsor deeming; c. Upholding the County’s termination decision without addressing issues raised by Mr. TESMA during the hearing, including Respondents’ failure to issue an adequate pre-termination notice, Respondents’ failure to comply with the express statutory duty to provide Mr. TESMA with assistance as needed to establish or maintain eligibility, and Respondents’ failure to issue a written pre-termination decision approving or denying Mr. TESMA’s indigence exception request; d. Failing in the written decision to address and reconcile patent conflicts between state and federal statutes and regulations and the County’s interpretations of indigence exception criteria; e. Failing to adequately develop the record during the hearing process but relying on this undeveloped factual record to justify the termination decision; f. In relying on an undeveloped factual record, disregarding or failing to consider the effect of Mr. TESMA’s medical impairments to his cognition and memory on his ability to provide comprehensive and specific factual testimony; g. Retroactively applying an agency rule interpretation (contained in ACL No. 17-33) of indigence exception rules issued after the termination decision in a manner fundamentally inconsistent with due process; h. Overruling Mr. TESMA’s timely and proper objection to ACL No. 17-33; and i. Failing to issue a subpoena for internal agency communications pertaining to the apparently intentional abuse of the agency rule interpretation process to prejudice Mr. TESMA’s right to a fair and impartial adjudicative process. 25 PETITION FOR WRIT OF MANDA I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 77. The issue in this cause of action concerns a matter of law and de novo review of the Respondents’ decision is thereby authorized; the reviewing court does not defer in any way to the Respondents’ interpretation of the law. Ruth v. Kizer, 8 Cal.App.4th 380, 385 (1992). FOURTH CAUSE OF ACTION (Denial of Fair Trial) (Traditional Mandamus Pursuant to Code of Civil Procedure 1085) 78. Petitioner realleges and incorporates by reference each and every paragraph and allegation contained in this Petition as though fully set forth herein. 79. The Respondents failed to conduct a fair trial in violation of Petitioner’s substantive and procedural due process rights. 80. As set forth in Paragraphs 7-54, Respondents, through the actions of the ALJ failed to provide Mr. TESMA with a fair trial by: a. Terminating Mr. TESMA’s CAPI benefits without adequate or proper notice; b. Failing to approve or even consider his formal, timely, and complete request for the indigence exception to sponsor deeming; c. Upholding the County’s termination decision without addressing issues raised by Mr. TESMA during the hearing, including Respondents’ failure to issue an adequate pre-termination notice, Respondents’ failure to comply with the express statutory duty to provide Mr. TESMA with assistance as needed to establish or maintain eligibility, and Respondents’ failure to issue a written pre-termination decision approving or denying Mr. TESMA’s indigence exception request; d. Failing in the written decision to address and reconcile patent conflicts between state and federal statutes and regulations and the County’s interpretations of indigence exception criteria; e. Failing to adequately develop the record during the hearing process but relying on this undeveloped factual record to justify the termination decision; 26 PETITION FOR WRIT OF MANDA 1E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 f. In relying on an undeveloped factual record, disregarding or failing to consider the effect of Mr. TESMA’s medical impairments to his cognition and memory on his ability to provide comprehensive and specific factual testimony; g. Retroactively applying an agency rule interpretation (contained in ACL No. 17-33) of indigence exception rules issued after the termination decision in a manner fundamentally inconsistent with due process and the Administrative Procedures Act; h. Overruling Mr. TESMA’s timely and proper objection to ACL No. 17-33; and i. Failing to issue a subpoena for internal agency communications pertaining to the apparently intentional abuse of the agency rule interpretation process to prejudice Mr. TESMA’s right to a fair and impartial adjudicative process. 81. The Respondents are willfully failing to perform their public duty to conduct fair trials in the administration and adjudication of matters under the CAPI program (specifically including, without limitation, proceedings pertaining to the indigence exception to sponsor deeming). An Order of Mandamus from this Court directing Respondents to comply with the law in the administration of its public duties is required to protect Petitioner and those similarly situated from prejudicial harm that will foreseeably continue in the absence of such Order. 82. The issue in this cause of action concerns a matter of law and de novo review of the Respondents’ decision is thereby authorized; the reviewing court does not defer in any way to the Respondents’ interpretation of the law. Ruth v. Kizer, 8 Cal.App.4th 380, 385 (1992). FIFTH CAUSE OF ACTION (Abuse of Discretion \u2014 Decision not Supported by Findings) (Administrative Mandamus Pursuant to Code of Civil Procedure 1094.5) 83. Petitioner realleges and incorporates by reference each and every paragraph and allegation contained in this Petition as though fully set forth herein. 27 PETITION FOR WRIT OF MANDATE 84. The Respondents prejudicially abused their discretion by adopting a decision not supported by the findings. 85. As set forth in Paragraphs 7-54, Respondents, through the actions of the AU, prejudicially abused their discretion by issuing a decision not supported by the findings by: a. Concluding that Mr. TESMA’s application for the indigence exception could not be approved or even be considered based on an undeveloped absence of evidence regarding whether Mr. TESMA asked his sponsor on the phone to provide a signed income and asset statement; b. Failing to make a finding that any phone call between Mr. TESMA and his sponsor occurred at a time relevant to Mr. TESMA’s CAPI redetermination process; c. Expressly acknowledging that governing state and federal statutes and regulations contain no signed sponsor verification requirement for the indigence exception and yet approving the lack of a signed sponsor verification as the legal basis for the termination decision, thereby failing to bridge the explanatory gap between evidentiary findings and conclusions of law; d. Expressly acknowledging that the indigence exception criteria in the MPP contain no signed sponsor verification requirement for the indigence exception and yet approving the lack of a signed sponsor verification as the legal basis for the termination decision, thereby failing to bridge the explanatory gap between evidentiary findings and conclusions of law; e. Failing to establish Mr. ThSMA was formally given proper notice of any obligations or requirement giving rise to a duty to perform further actions to qualify for the indigence exception, nor the specific conduct requested from Mr. 1ESMA to comply with such an alleged duty; 28 PETITION FOR WRIT OF MANDA I E, 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 f Disregarding substantial evidence that Mr. 1ESMA’s sponsor refused to provide her phone number or address to him and that he had no way to initiate contact with her, even if Respondent had established the existence of this alleged duty; g. Retroactively relying upon ACL No. 17-33 to justify a termination decision that pre-dated issuance of this ACL, thereby failing to bridge the explanatory gap between findings and the law. 86. The issues in this cause of action concern a vested fundamental right to welfare benefits, and the appropriate standard of review is this Court’s independent judgment. Code Civ. Proc. 1094.5(c). SIXTH CAUSE OF ACTION (Abuse of Discretion \u2014 Findings not Supported by the Evidence) (Administrative Mandamus Pursuant to Code of Civil Procedure 1094.5) 87. Petitioner realleges and incorporates by reference each and every paragraph and allegation contained in this Petition as though fully set forth herein. 88. The Respondents prejudicially abused their discretion by adopting a decision based on findings not supported by the evidence. 89. As set forth in Paragraphs 7-54, Respondents, through the actions of the ALT, rejudicially abused their discretion by making findings not supported by the evidence by: a. Making the finding, without evidence, and despite substantial evidence to the contrary, that Mr. TESMA had the opportunity to initiate contact with his sponsor during the CAPI redetermination process to request her signed income and asset verification; b. Making the implicit finding, without evidence, that any phone call between Mr. TESMA and his sponsor occurred at a time relevant to the CAPI redetermination process; 29 PETITION FOR WRIT OF MANDA 1’h 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c. Making the finding that no evidence was presented that Mr. TESMA asked his sponsor on the phone to provide a signed income and asset verification when this issue was not materially asserted at the hearing by Respondents and the AU failed to adequately develop the administrative record regarding this factual issue; d. Making the implicit finding that Mr. TESMA failed to meet his burden of proof to proffer evidence that the termination decision was incorrect when it was Respondents’ burden of proof to establish that the termination decision was proper and justified; 90. The issues in this cause of action concern a vested fundamental right to welfare benefits, and the appropriate standard of review is this Court’s independent judgment. Code Civ. Proc. 1094.5(c). SEVENTH CAUSE OF ACTION (Underground Regulation \u2014 Violation of Administrative Procedures Act) (Mandamus Pursuant to Code of Civil Procedure 1085) 91. Petitioner realleges and incorporates by reference each and every paragraph and allegation contained in this Petition as though fully set forth herein. 92. The Administrative Procedure Act (APA) provides, in pertinent part, that \”[n]o state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation as defined in Section 11342.600, unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State pursuant to this chapter.\” Cal. Gov. Code 11340.5(a)(emphasis added). 93. \”Regulation\” is broadly defined as \”every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.\” Cal. Gov. Code 11342.600. 30 PE 11110N FOR WRIT OF MAND A 1 h 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 94. ACL No. 17-33 constitutes a regulation as defined by Government Code Section 11342.600. 95. ACL No. 17-33 was improperly adopted by Respondents without complying with the requirements set forth in the Administrative Procedures Act. Cal. Gov. Code 11340 et seq. Pursuant to Government Code Section 11340.5, ACL No. 17-33 is invalid as a matter of California law and Respondents violated the Administrative Procedures Act in seeking to use or enforce ACL No. 17-33 in Mr. TESMA’s case and the cases of others similarly situated. 96. Respondents’ use of ACL No. 17-33 in Mr. TESMA’s case and the cases of others similarly situated has caused substantial injury by providing a false basis for the termination of Mr. TESMA’s and others’ subsistence public welfare benefits through the CAPI program. 97. Mr. TESMA timely objected to Respondents’ use of ACL No. 17-33 in the course of the hearing process. Respondents, acting through the ALJ, improperly overruled Mr. lESMA’s objection. 98. The issue in this cause of action concerns a matter of law and de novo review of the Respondents’ decision is thereby authorized; the reviewing court does not defer in any way to the Respondents’ interpretation of the law. Ruth v. Kizer, 8 Cal.App.4th 380, 385 (1992). PRAYER FOR RELIEF Wherefore, Petitioners pray relief as follows: 99. That this Court issue a writ of mandate pursuant to Code of Civil Procedure Section 1094.5 commanding the Respondents to rescind their decision in Administrative Hearing No. 2017025357; 100. That this Court issue a writ of mandate pursuant to Code of Civil Procedure section 1094.5 commanding the Respondents to issue a new decision cancelling its notices of termination dated January 19, 2017, approving Mr. 1ESMA’s application for the indigence exception to sponsor-deeming, and reinstating Mr. TESMA’s CAPI cash aid with no interruption in entitlement; 31 PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 101. That this Court issue a writ of mandate pursuant to Code of Civil Procedure Section 1094.5 commanding the Respondents to pay Petitioner any benefits improperly withheld on the basis of the termination of Mr. I ESMA from the CAPI program, plus interest at the statutory rate of ten percent on all benefits due to Petitioner here until paid in full; 102. That this Court issue a writ of mandate pursuant to Code of Civil Procedure Section 1085 commanding the Respondents to order his agents to comply with the mandatory requirements of federal and state law with regard to CAPI eligibility requirements, indigence exception criteria, substantive and due process rights to pre-termination notice and fair hearing, and to assume full legal and financial responsibility for any failure to do so; 103. That this Court issue a writ of mandate pursuant to Code of Civil Procedure Section 1085 commanding the Respondents to rescind and recall any and all policy statements or interpretive documents, including without limitation All-County Letter No. 17-33, that conflict with federal and state statutes and regulations regarding CAPI eligibility requirements and the indigence exception; 104. That this Court award Petitioner his costs of suit; 105. That this Court award Petitioner his reasonable attorneys’ fees under Code of Civil Procedure Section 1021.5, Welfare and Institutions Code Section 10962; Government Code Section 800, and\/or any other applicable provisions of California law; and 106. The Court award such other and further relief as it deems proper. DATED: 08\/11\/2017 Respectfully submitted, LEGAL AID FOUNDATION OF LOS ANGELES, By: AnZk akes, Esq. Attorney for Petitioner MATEBE TESMA 32 PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFICATION STATE OF CALIFORNIA COUNTY OF LOS ANGELES I, Andrew Kazakes: 1. Am an attorney licensed to practice law in California and represent the Petitioner, MATEBE TESMA. 2. I have read the foregoing petition for Writ of Mandate, and know the contents thereof. They are true to the best of my knowledge except those allegations on information and belief which I believe to be true. I am more familiar with the factual and legal claims raised in this petition than the Petitioner. I declare under penalty of perjury under the law of California that the foregoing is true and correct. Date: 08\/11\/2017 Signe Andrew Kazakes, Esq. Attorney for Petitioner 33 PETITION FOR WRIT OF MANDATE ”

Velma v. Lightbourne-Writ regarding DV waivers

” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF DAVID LOY (SBN 229235) ([email protected]) MELISSA DELEON (SBN 272792) ([email protected]) JONATHAN MARKOVITZ (SBN 301767) ([email protected]) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 Telephone: (619) 232-2121 Fax: (619) 232-0036 CRAIG E. COUNTRYMAN (SBN 244601) ([email protected]) ALEKSANDR GELBERG (SBN 279989) ([email protected]) MADELYN S. MCCORMICK (SBN 320063) ([email protected]) FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, CA 92130 Telephone: (858) 678-4050 Fax: (858) 678-5099 Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN DIEGO LUZ VILLAFANA, UHMBAYA LAURY; Plaintiffs, v. COUNTY OF SAN DIEGO, Defendant. CASE NO: COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF INTRODUCTION 1. This action challenges a state-funded program that disproportionately impacts people of color and women. Unlike every other county in the state, Defendant San Diego County ( the County ) forces nearly all persons seeking welfare assistance to submit to home inspections without any reason to believe they are ineligible. The County has effective other means to verify eligibility, yet it continues to waste time and money routinely inspecting the homes of families in distress. 2. CalWORKs ( California Work Opportunity and Responsibility to Kids ) is the state’s cash assistance welfare program. It provides a safety net for persons who may become income-eligible, including those who suffer a catastrophic loss of income due to job loss or otherwise. 3. For over 20 years, the County has required persons in need of CalWORKs benefits to submit to Project 100%, also known as P100, or face denial of benefits. Under P100, absent any suspicion of ineligibility, nearly all persons applying for CalWORKs benefits must submit to an unannounced home inspection by a law enforcement investigator. The investigators may interrogate applicants about matters such as child care, living, and sleeping arrangements and inspect private areas such as closets, cupboards, desks, dressers, hampers, and laundry bags. 4. If persons do not cooperate with P100 inspections, they face denial of their applications, leaving them destitute. When not notified when the inspections will occur, CalWORKs applicants are effectively held hostage in their homes waiting for the investigator to arrive. 5. Plaintiffs bring this action to compel the County to stop operating P100, which adversely impacts thousands of innocent people each year at significant waste of public funds that could be put to better use investigating actual violations of law. The County can and does verify eligibility and prevent fraud through cost-effective means that do not require indiscriminate home inspection. Plaintiffs respectfully request the Court to issue declaratory and injunctive relief to cure the County’s illegal expenditure of taxpayer funds. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PARTIES 6. Plaintiff Luz Villafana is and at all times mentioned herein has been a citizen resident of San Diego County. Ms. Villafana owns a home in Escondido and, within the one year before the commencement of this action, has paid property taxes to the County of San Diego and the State of California for that property, and is currently assessed and liable to pay additional taxes therein. 7. Plaintiff Uhmbaya Laury is and at all times mentioned herein has been a citizen resident of San Diego County. She has previously applied or re-applied for public benefits under the CalWORKs program. As a condition of seeking benefits, for which she was ultimately approved, she was forced to submit to Project 100%. Within one year before the commencement of this action, she has paid sales tax, gasoline tax, or other taxes, charges, or fees routinely imposed in the County of San Diego. 8. Defendant County of San Diego is a public entity responsible for ensuring that the County, its agencies, officers, employees, and agents fulfill the requirements of all applicable provisions of federal and state constitutional law, statutes, and regulations with respect to the administration of public benefits, including CalWORKs. STATUTORY AND REGULATORY FRAMEWORK 9. Congress enacted Title IV-A of the Social Security Act to provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives. 42 U.S.C. 601(a)(1). Public assistance funding under the Social Security Act stems from the Nation’s basic commitment . . . to foster the dignity and well-being of all persons within its borders and is based upon the recognition that forces not within the control of the poor contribute to their poverty. Goldberg v. Kelly, 397 U.S. 254, 264-65 (1970). 10. CalWORKs is the state analog to the federal Temporary Assistance for Needy Families ( TANF ) program, formerly known as Aid to Families with Dependent Children ( AFDC ). AFDC was established by Title IV-A of the Social Security Act of 1935, 49 Stat. 627, as amended, 42 U.S.C. 601-610. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 11. CalWORKs exists for the benefit of all otherwise qualified California families to provide a safety net for anyone who might become income-eligible due to job loss or otherwise. 12. To receive CalWORKs benefits, a family must be income-eligible. A family of three in San Diego County, for example, must have no more than $1,292 in net monthly income. See California Department of Social Services. All County Letter No. 16-47, California Work Opportunity And Responsibility To Kids (CalWORKs): Cost Of Living Adjustment (Cola) Increase To The Minimum Basic Standard Of Adequate Care (MBSAC) Levels, May 27, 2016 at 3; Manual of Policies and Procedures: Eligibility and Assistance Standards ( MPP ) 44-207. 13. California counties administer the CalWORKs program within their respective localities in conformity with state rules and regulations. CAL. WELF. & INST. CODE 11209, 10802. 14. The basic purpose of the [benefits] application process is to assist the individual in establishing his\/her eligibility for aid and services. MPP 40-115.1. Gathering the requisite evidence to make an eligibility determination is a joint responsibility of the applicant and the county. MPP 40-157.21. The county requires the applicant to produce only evidence necessary to determine past or present eligibility for the amount or delivery of aid. MPP 40-126.31. 15. The regulations spell out the Steps in the Application Process to determine eligibility for aid. See MPP 40-115.2. Initially, an applicant discusses with an eligibility worker the circumstances that have led to the application. MPP 40-115.211. The eligibility worker, in turn, explains the agency requirements, program limitations, [his\/her] rights and responsibilities and what he\/she can expect from the agency. Id. 16. The applicant completes a Statement of Facts form, which is signed under penalty of perjury. MPP 40-115.22, 40-128.1. The application is submitted to the Applicant System component of the state’s Income Eligibility Verification System ( IEVS ), administered by the Department of Health Care Services. See MPP 40-115.225. 17. The IEVS is a federally-mandated system consisting of a coordinated data exchange among various databases including but not limited to [w]age information from the State 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Wage Information Collection Agency [u]nemployment\/disability compensation benefits from the agencies administering those programs [b]enefits\/pensions\/wage information from the Social Security Administration [i]nternal Revenue Service (IRS)\/Franchise Tax Board (FTB) unearned income data Social Security number (SSN) verification information from SSA; and [i]nter\/intra-county duplicate benefit matches. MPP 20-006.12. 18. The County must submit specific identifying information to IEVS for each CalWORKs applicant, such as, but not limited to, name, SSN [and] date of birth. MPP 20- 006.211. The County shall input applicant data into IEVS at the first available opportunity but no later than five working days after the signed statement of facts is completed. MPP 20- 006.212. The County shall use information obtained through the IEVS for the purposes of [v]erifying the applicant’s\/recipient’s eligibility [and v]erifying the proper amount of benefits. MPP 20-006.3. 19. After the application is submitted, the applicant is required to, among other things: (a) complete all documents required in the application process; (b) provide all documents in her possession which are needed to determine eligibility; (c) report all facts the applicant believes to be material to her application or which the county has identified as affecting eligibility; (d) report any change in these facts within five calendar days of the change; (e) identify any third party who may be liable for care and services; and (f) identify any other family member required to be in the assistance unit. See MPP 40-105.11-105.16; CAL. WELF. & INST. CODE 11268. 20. Once applicants have been enrolled, they are subjected to ongoing eligibility verification through IEVS. See California Department of Social Services, Income and Eligibility Verification System, http:\/\/www.cdss.ca.gov\/fraudextranet\/PG2877.asp. Every quarter the [County] shall submit to IEVS income and eligibility information on each recipient of CalWORKs . MPP 20-006.221. 21. In addition to using IEVS to verify applicant eligibility and proper benefits amount, the County shall use information obtained through the IEVS for [d]etermining whether a recipient 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF received benefits to which he\/she was not entitled and where appropriate, [c]onducting criminal or civil prosecutions. MPP 20-006.3 22. Among other measures designed to prevent fraud is the requirement that each adult in the household submit fingerprints that can then be checked through the Statewide Fingerprint Imaging System. MPP 40-105.3. 23. Meanwhile, the eligibility worker begins the process of compiling acceptable evidence to verify the linking and nonlinking factors of the applicant’s eligibility for aid. MPP 40-115.22. The regulations set forth in considerable detail what constitutes acceptable evidence for each such factor. See, e.g., MPP 42-111.1 (regarding proof of age); and MPP 42-407 (regarding proof of residence). 24. A face-to-face interview with the applicant is required prior to the granting of aid. MPP 40-131.11. This interview by the eligibility worker must cover a long list of topics, including the applicant’s obligation to report all facts material to a correct determination of eligibility and the grant amount, the joint responsibility of the county and the applicant for exploring all the facts concerning eligibility, and the kinds of evidence which may be needed to establish eligibility. MPP 40-131.3. 25. Within ten calendar days of application, the county must give written notice to the applicant of any required evidence and examples of alternative evidence, if any, to determine eligibility. MPP 40-126.32. The county shall, however, assist the applicant in obtaining any such evidence concerning eligibility from a third party if the applicant has made a good faith effort to obtain such evidence but did not succeed due to the third party’s failure or refusal to provide the necessary information. MPP 40-126.331. Moreover, the county shall not deny an application for failure to provide evidence of eligibility if the county has determined that the applicant is continuing to cooperate by attempting to comply in obtaining necessary evidence. MPP 40.126.34. 26. The state has prescribed the methods of gathering evidence of eligibility. See MPP 40-157.2. Throughout the entire application process, the county must inform the applicant what 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF evidence is desired, why it is needed and how it will be used. MPP 40-157.211; see also MPP 40-115.223. The applicant, on the other hand, must agree to participate in, and cooperate with the county in the evidence gathering process to the fullest extent possible. MPP 40-157.212; see MPP 40-115.221, 40-115.222. When it is not possible for the applicant to obtain necessary evidence, the county shall obtain it for him. MPP 40-157.213. When evidence is conflicting, inconsistent or incomplete, the investigation shall be pursued to the point that the preponderance of evidence supports the determination regarding the applicant’s eligibility. MPP 40-157.14. 27. State regulations require a home visit only when living arrangements or other factors affecting eligibility, or apparent eligibility in cases of immediate need or diversion, cannot be satisfactorily determined without such a visit. MPP 40-161. STATEMENT OF FACTS 28. CalWORKs is a state-funded program or activity, or a program or activity that receives state financial assistance, of which P100 is a part. 29. To the extent it could be considered a program or activity separate from CalWORKs, P100 is a state-funded program or activity, or a program or activity that receives state financial assistance. 30. With approval of the County Board of Supervisors, P100 began in 1997 as a pilot program proposed by the District Attorney’s office and the County Department of Social Services, ostensibly to increase efforts in Welfare Fraud prevention at the point of intake. Board of Supervisors Minute Order No. 45, April 29, 1997; AFDC Program Guide, Special Notice (hereafter Special Notice ) 98-60 at 1. 31. Effective January 4, 1999, the County expanded P100 to require home inspections for all new applications that were not deemed obvious denials. Special Notice 98-60 at 1. 32. P100 investigators are and have always been licensed peace officers. They previously worked out of the District Attorney’s office. Currently they are assigned to the Public Assistance Fraud ( PAF ) division of the Department of Child Support Services ( DCSS ). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 33. In San Diego County, all applications for CalWORKs benefits that are not denied outright are referred to PAF under P100, regardless of whether the applications present any reason to suspect ineligibility or fraud. 34. Apart from P100, the County also conducts investigations of specific individuals suspected of committing welfare fraud, knows as allegation-based or referral-based investigations. The lawfulness of allegation-based or referral-based investigation is not challenged in this action. 35. Upon receipt of a P100 referral, a PAF investigator makes an unannounced attempt to investigate the applicant at the address listed on the application. Special Notice 98-60 at 3. If no one is home, the investigator is supposed to leave his or her business card. See id.; County of San Diego CalWORKs Program Guide 20-000.B.5. 36. If the applicant is not home when the second home call attempt is made, another business card will be left with a note on it for the applicant\/recipient to call the investigator. County of San Diego CalWORKs Program Guide 20-000.B.5. 37. The notice sent to CalWORKs applicants concerning P100 indicates that the purpose of the investigation is to verify the facts related to your application for CalWORKs, and states that County policy requires that the investigation be completed . . . prior to approving ongoing CalWORKs benefits. 38. Because applicants are typically not notified when the investigation will occur, they must often remain effectively confined to their homes awaiting an unannounced and unscheduled visit. As a result, they may be effectively required to postpone job searches, skip medical appointments, and stop taking children to and from school for fear of suffering denial of income necessary to feed their families. 39. If the applicant is at home, the investigator seeks entry into the home and questions the applicant and others who may be in the home. The interrogation may address a variety of subjects, including matters unrelated to eligibility or that have already been documented and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF verified during the application process, including but not limited to child care, living, and sleeping arrangements. 40. The investigation may involve an inspection of the applicant’s home, which may entail viewing, among other things, the contents of private rooms, closets, cupboards, desks, dressers, hampers, laundry bags, and other areas or items not in plain view. 41. If the investigator’s attempts to contact the applicant are unsuccessful, or if the applicant does not submit to the P100 investigation, the application for benefits is denied. 42. According to recent data, 50.33% of San Diego County CalWORKs recipients are Hispanic, while 14.11% are African American. 43. Recent data show 33.5% of the County’s general population is Hispanic, and only 5.5% is African American. 44. Recent data show adult women represent 72.73% of enrollees in San Diego County’s CalWORKs Welfare-to-Work ( WTW ) program. 45. Recent data show adult women represent 39% of the County’s general population. 46. On information and belief, because nearly all CalWORKs recipients are required to participate in the WTW program, with very narrow exemptions, the WTW program’s demographics mirror or closely resemble those of the CalWORKs recipient pool. 47. The County currently employs several PAF investigators who spend a substantial amount of their time on P100 investigations based on unsubstantiated suspicion that an applicant violated any law. That time could be redirected to investigating suspected violations of law, including but not limited to fraud, perjury, embezzlement, [and] trafficking. MPP 20-007.113. 48. No other county in California operates a program similar to P100. Instead, other counties investigate claims of fraud based on individualized suspicion of applicant fraud rather than conducting indiscriminate home inspections of all applicants. 49. Los Angeles County previously operated a program modeled on P100, but it abandoned the program in or about 2009. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 50. Counties with CalWORKs caseloads of 1,000 cases or more are required to develop and administer fraud investigation programs administered by special investigation units ( SIUs ), which are distinct from county units performing eligibility and benefit determination functions. MPP 20-007.1, 20-007.21. Counties with smaller caseloads may maintain an SIU, but if they do not, they must designate one employee to be responsible for the referral of suspected fraud cases to the prosecuting authority for investigation. MPP 20-007.112. 51. SIUs shall be established and organized for the purpose of investigating suspected welfare fraud, and shall [i]nvestigate any activity, particularly during intake, which may constitute welfare fraud. MPP 20-007.1, 20-007.31. 52. The administration and operation of P100 cause a disproportionate adverse effect on the basis of race, color, national origin, ethnic group identification, or sex. 53. P100 is not justified by any legitimate governmental interest in fraud prevention. The costs of operating P100 exceed any savings arising from prevention of any fraud detected through the program. 54. Even if P100 were justified by any legitimate governmental interest in fraud prevention, any such interest can be better served through other means that cause less disproportionate adverse effect on protected classes, including but not limited to the use of existing procedures for verifying eligibility for CalWORKs benefits and allegation-based or referral-based investigations. CAUSE OF ACTION FOR ILLEGAL OR WASTEFUL EXPENDITURE OF PUBLIC FUNDS IN STATE-FUNDED PROGRAM OR ACTIVITY BY ALL PLAINTIFFS AGAINST DEFENDANT COUNTY UNDER CAL. GOV’T. CODE 11135 AND CAL. CODE CIV. PROC. 526(A) 55. Plaintiffs incorporate herein by reference each and every allegation set forth in Paragraphs 1-54, above, as if set forth in full. 56. No person in the State of California shall, on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state. CAL. GOV’T. CODE 11135. 57. Section 11135 and its implementing regulations, 2 Cal. Code Regs. 11150 et seq., are enforceable by a civil action for equitable relief. CAL. GOV’T. CODE 11139. 58. The County’s administration of CalWORKs, of which P100 is a part, is a program or activity subject to 11135 and its implementing regulations. 59. In the alternative, P100 is a program or activity subject to 11135 and its implementing regulations. 60. Section 11135 and its implementing regulations prohibit disparate impact discrimination in the operation of any program or activity that is funded directly by the state, or receives any financial assistance from the state. 61. In carrying out CalWORKs and P100, the County is violating 11135 by causing a disproportionate adverse effect on the basis of race, color, national origin, ethnic group identification, or sex. 62. In carrying out CalWORKs and P100, the County is violating 2 Cal. Code Regs. 11154(i) because it is using criteria or methods of administration that (1) have the purpose or effect of subjecting a person to discrimination on the basis of ethnic group identification, sex, or color; and\/or (2) have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the CalWORKs program with respect to a person of a particular ethnic group identification, sex, or color. 63. The County’s policies, practices, and actions as stated in this complaint constitute an illegal or wasteful expenditure of public funds justifying an injunction under CAL. CODE CIV. PROC. 526(a). 64. There is no adequate remedy at law if the requested injunction does not issue to prevent the illegal or wasteful expenditure of taxpayer monies. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 65. There exists a real and present controversy between Plaintiffs and Defendant regarding the implementation of P100 and the administration of CalWORKs in San Diego County. Plaintiffs contend that the actions of Respondents complained of in this complaint violate the law as specified above. Plaintiffs are informed and believe that Defendant contends to the contrary. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this court: 1. Issue a declaratory judgment that P100 is invalid because it constitutes an illegal form of disparate impact discrimination within the meaning of CAL. GOV’T. CODE 11135 and its implementing regulations; 2. Issue a declaratory judgment declaring that P100 is invalid because it constitutes an illegal or wasteful expenditure of public funds; 3. Issue a permanent injunction restraining Defendant and its officers, agents, servants, employees, representatives, all persons acting in concert with, at the direction or, in combination with, or participating with them, and other persons subject to their authority or control, from implementing in any way any provision of P100; 4. Grant costs of suit to Plaintiffs; 5. Award reasonable attorney fees to the extent permitted by law; 6. Grant such other and further relief as the Court deems just and proper. Dated: June 26, 2018 Respectfully submitted, By: _________________________ DAVID LOY (SBN 229235) ([email protected]) JONATHAN MARKOVITZ (SBN 301767) ([email protected]) Melissa Deleon (SBN 272792) ([email protected]) ACLU FOUNDATION OF SAN DIEGO & AND IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 Tel: (619) 232-2121 Fax: (619) 232-0036 E-Mail: [email protected] CRAIG E. COUNTRYMAN (SBN 244601) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF ([email protected]) ALEKSANDR GELBERG (SBN 279989) ([email protected]) MADELYN S. MCCORMICK (SBN 320063) ([email protected]) FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, CA 92130 Telephone: (858) 678-4050 ”