Opinion
404175/04.
Decided August 11, 2005.
Plaintiffs were represented by Jennifer Baum, Esq. of The Legal Aid Society, New York, NY.
Defendant was represented by Eliot Spitzer, Attorney General of the State of New York (Robert Kraft, of counsel), New York, NY.
Plaintiffs Boris Khrapunskiy, Griselda Batista, Marianna Popova, Tatiana Gornyachek, Sura Simonova, Alina Garcia, Esfir Olman, Georgiy Shnitser, Betya Barabanova, Arkadiy Kats, Misha Abramov, Parat Abramova, Yelena Bragilevskaya, Ilya Bragilevskoy, Lyudmila Solodukha, Vadim Kogan, Anna Levitina, Rudolph Lioznov Zisel Sher, and Yakov Yarin move pursuant to CPLR 902 for class certification; pursuant to CPLR 6301, for a preliminary injunction; and pursuant to CPLR 3212(a) for summary judgment. Defendant Robert Doar, as Commissioner of the New York State Office of Temporary and Disability Assistance (OTDA), cross-moves pursuant to CPLR 3211 (a) (2) and (3) for an order dismissing the complaint, or, in the alternative, granting summary judgment pursuant to CPLR 3212 (a). For the reasons below, plaintiff's motion for summary judgment is granted, and the cross-motion is denied.
Plaintiffs (most of whom emigrated from Ukraine) are indigent, and elderly, disabled, or blind. They are, nonetheless, ineligible for Supplementary Security Income (SSI) benefits, as well as for Additional State Payments (ASP) under Social Services Law (SSL) § 209, because of their status as legal aliens. Their benefits under SSI and ASP were terminated because they did not become citizens in the time frame mandated by the United States Congress. This lawsuit concerns the State's obligation to provide for plaintiffs (and those similarly situated) when the federal government refuses to do so.
Background
New York has provided benefits to the indigent, aged and blind since the 1930s, and to the disabled since 1951. In establishing those benefit programs, the Legislature declared that the care and relief of aged persons who are in need, blind persons who are in need, and disabled persons who are in need is "a special matter of state concern and a necessity in promoting the public health and welfare." L 1930 c 382, § 122; L 1936 c 693, § 112; L 1951 c77, § 300.
In 1972, the United States Congress established the SSI program, which became effective January 1, 1974, and which provided for federal payment of benefits to the needy aged, blind, and disabled. See PL 92-603, codified as Title XVI of the Social Security Act at 42 USC § 1381 et seq. (SSI Act). The SSI Act provided for a standard of need far lower than the standard of need set out, at that time, in New York's programs for the needy aged, blind, and disabled. See Memorandum of State Executive Department, 1974 McKinney's Session Laws of New York, at 2053-54. Accordingly, the New York State Legislature responded to the SSI Act by amending the Social Services Law to repeal the then-applicable provisions pertaining to the care of the aged, the blind, and the disabled, and by enacting, in their stead, a new Title 6 of SSL Article 5, Additional State Payments For Eligible Aged, Blind, and Disabled Persons, SSL §§ 207-212. L 1974 C 1080 (3). The ASP program was enacted in order to satisfy the Legislature's "commitment to meeting the income needs of aged, blind and disabled persons who are receiving basic [SSI] benefits or whose income and resources, though above the standard of need for the [SSI] program, is not sufficient to meet those needs." SSL § 207.
The standard of need is the amount that is to be reached by the sum of an individual's, or a family's, countable income and that individual's, or family's, benefit payments.
Consistent with the Legislature's view that SSI benefits, and the income level that would make a person eligible for such benefits, were not sufficient to meet the needs of the needy aged, blind, and disabled in New York, the Legislature determined that certain amounts would be "the standard of monthly need for determining eligibility for and the amount of additional state payments, depending on the type of living arrangement and the geographic area in which the eligible individual or the eligible couple resides." SSL § 209 (2). Payments under the ASP program would be the difference between the recipient's standard of need and the sum of such recipient's SSI benefit plus countable income. SSL § 209 (4). For persons whose income made them ineligible for SSI benefits, the ASP payment would equal the difference between such income and the person's standard of need.
The standards of need set forth in SSL § 209 (2) are entirely independent of the generally lower standards of need set forth in SSL § 131-a, which determine eligibility for public assistance (Safety Net and Medicaid).
Moreover, the Legislature's commitment to meeting the needs of the aged, the blind, and the disabled at the level set out in SSL § 209 (2) was unqualified. The SSI Act provided that states could enter into agreements to have the Social Security Administration administer such supplementary payments programs as the states might establish. 42 USC § 1382 (e) and (e) (b). While the Legislature authorized the State to enter into such a contract, it also directed that, in the absence of an agreement for federal administration of the ASP program, the social services districts would be responsible for providing the payments, subject to full reimbursement by the State. SSL § 212. By contrast, the provision of public assistance by social service officials was, and remains, limited to the availability of funds for that purpose. SSL § 131 (1).
In order to be eligible for ASP, a person needed to: (a) be over 65 years of age, blind, or disabled; (b) not have income equal to or exceeding the standard of need set out in § 209 (2); (c) not have resources equal to or greater than the maximum allowed for purposes of SSI eligibility; and (d) be "a resident of the state and . . . either a citizen of the United States or . . . an alien who has not been determined by an appropriate federal authority to be unlawfully residing in the United States." See former SSL § 209.1 (a) (iv).
In 1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), which, among other things, limited the eligibility of certain categories of aliens to receive the benefits of certain federal programs, including SSI and "supplementary payments pursuant to an agreement for Federal administration. . . ." 8 USC § 1612 (a) (3). As initially enacted, PRWORA allowed only such aliens as were lawful permanent residents with 40 qualifying quarters in the Social Security System, honorably discharged veterans, or active duty service members and their families, to remain eligible for SSI and supplementary payments. The eligibility of humanitarian-based immigrants, arriving after August 22, 1996, was limited to five years. "Humanitarian-based immigrants" are refugees, asylees, and persons granted withholding of deportation, all of whom are granted indefinite residency in the United States because they face persecution in their home country. However, the 1997 Balanced Budget Reconciliation Act eliminated the disqualification from eligibility of aliens who were lawfully residing in the United States on August 22, 1996, and of certain "qualified aliens" ( see 8 USC § 1641 [b] and [c]), who were lawfully residing in the United States on August 22, 1996, and who later became disabled. In addition, the eligibility of humanitarian-based immigrants, arriving after August 22, 1996, was increased from five years to seven. 8 USC § 1612 (a) (2) (A). Aliens who remain ineligible for SSI benefits include most "qualified aliens," all immigrants permanently residing under color of law, unless they were receiving SSI benefits in August 1996, and humanitarian-based immigrants who arrived, or will arrive, after August 22, 1996, and whose seven-year eligibility has expired, or will expire.
In response to the enactment of PRWORA, the Legislature enacted the Welfare Reform Act of 1997 (WRA), which, in turn, was amended in 1998. Among other things, the WRA, as amended, provides that "[a]n alien who is not ineligible for federal [SSI] benefits by reason of alien status shall, if otherwise eligible, be eligible to receive additional state payments for aged, blind or disabled persons under section [209] of this chapter." SSL § 122 (1) (f). At the same time, SSL § 209 was amended to provide that only a person who "is a resident of the state and is either a citizen of the United States or is not an alien who is or would be ineligible for federal [SSI] benefits solely by reason of alien status" (SSL § 209 [a] [iv]) is eligible for ASP benefits.
In contrast to the 1974 legislation supplementing SSI payments so as to ensure that benefits paid to the aged, blind, and disabled in the State would not be reduced as a result of the enactment of the SSI Act, as a result of the 1997 enactments, certain aged, blind, and disabled residents of the State, who are not eligible for SSI benefits solely because of their alien status, do not receive benefits from the State sufficient for them to meet what the State has determined to be the standard of need of the aged, blind, and disabled.
Plaintiffs Khrapunskiy, Popova, Simonova, Garcia, Olman, Shnitser, Barabanova, Kats, Misha Abramov and Parat Abramova, Yelena Bragilevskaya and Ilya Bragilevskoy, Solodukha, Kogan, Levitina, Lioznov, Sher, and Yarin received SSI and ASP payments, until such payments were stopped, because of those plaintiffs' immigration status. Plaintiffs Batista and Gornyachek, both of whom are disabled, never were eligible for SSI or ASP, because Ms. Batista attained legal status only after August 1996 and Ms. Gornyachek, who was granted "parole in the public interest" status, arrived in the United States in 1999, and is not yet a lawful permanent resident.
The amended complaint (Complaint) alleges that the failure of the State to provide plaintiffs, and others similarly situated, with benefits sufficient for them to meet the standards of need set out in SSL § 209 (2) violates Article XVII, § 1 of the Constitution of the State of New York, as well as the Equal Protection Clauses of both the Federal and the State constitutions. The Complaint seeks declarative and injunctive relief.
Discussion
Justiciability and Standing
As a preliminary matter, defendant argues that this court lacks subject matter jurisdiction because the Complaint raises a non-justiciable political question, and because plaintiffs lack standing to sue. The court is not persuaded by those arguments, in part because both are based on a misreading of the Complaint. Defendant contends that "plaintiffs' challenge herein . . . is in essence a . . . challenge to the eligibility conditions set by the Legislature for the elderly, blind and disabled to receive ASP." Defendants' Mem. of Law, at 10. The setting of such conditions of eligibility, defendant argues, is a policy matter reserved for the Legislature. Plaintiffs are not seeking ASP benefits in this action, and to the extent that the Complaint addresses the eligibility conditions for the receipt of ASP benefits, it does so only insofar as those conditions operate to deny plaintiffs assistance at the standard of need set out in SSL § 209 (2). See Complaint, at 36. Moreover, even if plaintiffs were seeking ASP benefits, and directly challenged SSL §§ 122 (f) and 209 (1) (a) (iv), it is well-settled that the courts have subject matter jurisdiction over claims that the Legislature has conditioned benefits in a manner that contravenes either the Federal or the State constitution. See e.g. Matter of Aliessa v. Novello, 96 NY2d 418, 429 (2001) (invalidating "burdensome eligibility condition"); Tucker v. Toia, 43 NY2d 1 (1977) (invalidating condition imposed on minors seeking public assistance). Finally, the relief that plaintiffs do seek, benefit payments at the level set out in SSL § 209 (2), does not pose a non-justiciable issue. It is well within the jurisdiction of the court to order defendant to establish a program in order to comply with a constitutional or a statutory requirement. See Matter of Natural Resources Defense Council, Inc. v. New York City Dept. of Sanitation, 83 NY2d 215 (1994); Jiggetts v. Grinker, 75 NY2d 411 (1990); McCain v. Koch, 117 AD2d 198 (1st Dept 1986), rev'd in part 70 NY2d 109 (1987).
Defendant's argument as to standing is based upon his apparent belief that plaintiffs are challenging actions taken by the federal government. On the contrary, plaintiffs are not challenging their exclusion from eligibility for either SSI benefits, or for ASP benefits payable pursuant to the State's agreement with the Social Security Administration, under 8 USC § 1612 (a) (3). Rather, they challenge the State's failure to provide them with benefits at the level that the State has determined to be appropriate, as a general matter, for the aged, the blind, and the disabled. Plaintiffs' standing to make that challenge is no different from the standing of plaintiffs in Matter of Aliessa, supra, to challenge their exclusion from Medicaid.
Article XVII, § 1
Article XVII, § 1 of the New York State Constitution provides that "[t]he aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine." By its terms, this provision vests broad discretion in the Legislature with regard to defining who is needy ( see e.g. Lovelace v. Gross, 80 NY2d 419 [upholding statute deeming portion of income of grandparent residing with minor parent under 18 and grandchild available to child]), and with regard to the method of meeting the defined need ( see e.g. Matter of Bernstein v. Toia, 43 NY2d 437 [upholding flat grant system for shelter allowances]). However, Article XVII, § 1 "imposes upon the State an affirmative duty to aid the needy . . . [and] unequivocally prevents the Legislature from simply refusing to aid those whom it has classified as needy." Tucker, 43 NY2d at 8 (citations omitted). The State's duty, under Article XVII, § 1, is independent of Federal law, and mere adherence to Federal law does not allow the State to shirk that duty. Lovelace, 80 NY2d at 425; Matter of Lee v. Smith, 43 NY2d 453, 463 (1977).
Defendant argues that SSL § 209 (2) does not establish a free-standing measure of need for the aged, blind, and disabled, because SSL § 209 (2) is applicable only "to individuals receiving benefits through [SSI] and because the federal government has agreed to share the responsibility with the State." Defendant's Mem. Law, at 21. To be sure, SSL § 209 (2), by its terms, applies only to "the eligible individual or the eligible couple," and plaintiffs are ineligible for ASP by virtue of SSL § 209 (1) (iv). However, as enacted in 1974, as part of the State's ASP program, which was designed to co-ordinate with the Federal government's assumption of the major responsibility for providing aid to the needy aged, blind, and disabled, the standard of need set out in SSL § 209 (2) was the State's independent determination of the level of assistance appropriate for such persons in New York.
When the State discontinued its prior programs for aiding the needy aged, blind, and disabled in 1974, because of the advent of SSI, the Legislature recognized that its duty to the needy aged, blind, and disabled remained, and ensured that the aged, blind, and disabled, whom it classified as needy, would not thereby lose net benefits. It provided that, in addition to SSI recipients, ASP payments also would be made to persons whose income, while too high to qualify them for SSI, was below the level of need set forth in SSL § 209 (2). See SSL §§ 207, 208.2, and 209 (1) (ii). That the Federal government now has chosen to deny SSI benefits to a particular subgroup of those the State classifies as the needy aged, blind, and disabled, does not relieve the State from its legislated duty to that subgroup. "[T]he State's duty remains." Matter of Lee, 43 NY2d at 463.
Defendant's view would lead to the perverse result that the SSL § 209 (2) standard of need would be met for some persons whose income is too high for them to be eligible for SSI benefits, while aged, blind, and disabled people with lower incomes excluded from SSI solely because of their immigration status would be consigned to the far lower level of benefits available as public assistance. On the basis of "an eligibility condition having nothing to do with need" ( Matter of Aliessa, 96 NY2d at 429), the State is denying to plaintiffs benefits, at the level that the State has determined to be generally appropriate for the indigent aged, blind, and disabled in New York, whether such persons were receiving SSI benefits, or not. Article XVII, § 1 bars the State from doing this. The State may not stop paying benefits at the level that it provided in SSL § 209 (2) merely because the Federal government no longer pays. Id.; Lovelace, supra; Matter of Lee, supra.
Equal Protection
In Matter of Aliessa, supra, the Court squarely held that the State's exclusion of persons from a benefit that is available to persons similarly situated, except with respect to immigration status, is subject to strict scrutiny. In that decision, the Court found that the such exclusion violated the Equal Protection Clauses of both the Federal and the State constitutions. Id. The only significant difference between Matter of Aliessa and this case is that the benefit at issue in Aliessa was Medicaid, an ongoing program generally available to the needy. The Legislature's explicit provision in the 1997 amendments to SSL §§ 122.1 (f) and 209 (1), that some among the needy aged, blind, and disabled would continue to receive benefits at the level set out in SSL § 209 (2), but that plaintiffs would not, violates plaintiffs' right to the equal protection of the laws, no less than the denial of Medicaid benefits violated the same right of the plaintiffs in Aliessa. Defendant's argument that the right to equal protection is not violated where only a subgroup of aliens is denied a benefit that is available to other aliens and to citizens, has been rejected not only in Aliessa, but also in Nyquist v. Mauclet ( 432 US 1) and Graham v. Richardson ( 403 US 365).
Class Certification
The class that plaintiffs seek to have certified consists of All elderly, blind and disabled persons residing in New York State who have received, are receiving or will receive assistance at less than the standard of need in SSL § 209 [(2)] solely because of their immigration status.
Defendant does not dispute that plaintiffs have shown the numerosity, commonality, typicality, and adequacy of representation that are required by CPLR 901 (a). Defendant's sole argument in opposition is that a class action would not be superior to individual actions because the government operations rule holds that where, as here, governmental operations are involved, class certification is inappropriate because it is "presume[d] that the government will abide by court rulings in future cases involving similarly situated [plaintiffs], under principles of stare decisis." Jamie B. v. Hernandez, 274 AD2d 335, 336 (1st Dept 2000) (citation omitted). However, class certification is not barred where retroactive benefits are sought ( see, e.g., Seittelman v. Sabol, 217 AD2d 523 [1st Dept 1995], aff'd as modified 91 NY2d 618), where members of the proposed class are indigent and aged or disabled, and therefore are less able to bring individual lawsuits, than members of the general population ( see e.g. Velazquez v. State of New York, 226 AD2d 141 [1st Dept 1996]), or where it is undisputed that some plaintiffs are at risk of eviction for inability to pay rent, and there is an "immediate threat that cannot await individual determinations." New York City Coalition to End Lead Poisoning v. Giuliani, 245 AD2d 49, 51 (1st Dept 1997).
Defendant contends that the proposed definition of the class is under-inclusive, in that most of the named plaintiffs are refugees or asylees who received SSI and ASP for seven years, and whose benefits were terminated by the Social Security Administration after seven years, while they were waiting for the United States Citizenship and Immigration Service to grant their citizenship applications, and, accordingly, that the proposed class should include refugees and asylees who are potentially eligible for federal SSI and ASP payments by virtue of becoming United States citizens. It appears to the court that such persons are embraced in the proffered class.
Defendant also contends that the proposed class is over-inclusive in that defendant cannot identify other elderly and disabled aliens in New York State who are ineligible for SSI and ASP, because for example, they entered the United States after August 22, 1996. Plaintiffs respond by pointing out that virtually all such persons will have applied for, and be receiving, public assistance, and that defendant's data base will allow him to identify those recipients of public assistance who are aged, blind, or disabled. The class definition proffered by plaintiffs will be changed so as to take account of this issue.
Conclusion
Accordingly, it hereby is
ORDERED that plaintiffs' motion for summary judgment is granted; and it is further
ORDERED that that branch of plaintiffs' motion which seeks to have this action certified as a class action is granted, and the class is defined as follows:
All persons identified to, or identifiable by, defendant as elderly, blind, and disabled persons lawfully residing in New York State who have received, are receiving, or will receive assistance at less than the standard of need set out in SSL 209 (2), solely because of their immigration status; and it is further
ADJUDGED and DECLARED that defendant's failure to provide assistance to plaintiffs and the class at the standard of need for the elderly, blind, and disabled, set out in Social Services Law § 209 (2) violates Article XVII, § 1 of the Constitution of the State of New York and the right of plaintiffs and the class to the equal protection of the laws, under the Fourteenth Amendment to the Constitution of the United States and Article I, § 11 of the State Constitution; and it is further
ORDERED that defendant, his agents, servants, employees and all other persons acting under his jurisdiction, supervision and/or direction are permanently enjoined and restrained from failing to provide assistance to plaintiffs and the class consistent with the standard of need set out in Social Services Law § 209 (2); and it is further
ORDERED that defendant shall provide plaintiffs Khrapunskiy, Popova, Simonova, Garcia, Olman, Shnitser, Barabanova, Kats, Misha Abramov and Parat Abramova, Yelena Bragilevskaya and Ilya Bragilevskoy, Solodukha, Kogan, Levitina, Lioznov, Sher, and Yarin, and all members of the class whose SSI and ASP benefits were discontinued solely because of their immigration status, and who, thereafter, were provided by defendant with assistance at less than the standard of need set out in SSL § 209 (2), with such retroactive assistance as is necessary to bring their income up to the standard of need in Social Services Law § 209 (2) in effect during the time that they were denied SSI and ASP payments solely as a result of their immigration status and to continue to provide such plaintiffs with assistance in an amount consistent with Social Services Law § 209 (2) as long as, without regard to their immigration status, they remain eligible therefore; and it is further
ORDERED that defendant shall provide plaintiffs Batista and Gornyachek and all members of the class who have not received SSI and ASP benefits, but who have been provided by defendant with public assistance in an amount less than set out in SSL § 209 (2), with such retroactive assistance as is necessary to bring their income up to the standard of need in Social Services Law § 209 (2) in effect during the time that they would have been eligible for SSI and ASP payments, but for their immigration status; and it is further
ORDERED that that branch of plaintiffs' motion which seeks a preliminary injunction is denied as moot; and it is further
ORDERED that defendant's cross motion is denied.