Family law judges may not order California welfare recipients to ignore their welfare-to-work plans and seek full-time employment, the state Court of Appeal held in Barron v. Martinez, 173 Cal. App. 4th 293 (2009). The decision ends a practice that had bedeviled welfare recipients for decades. It also illustrates the need for cross-specialty issue spotting and the importance of appellate advocacy in legal aid cases.
Factual Background: Two Worlds Collide
The case arose when Ronda Barron, a low-income divorced custodial parent, became caught between the conflicting requirements of California’s public assistance and child support enforcement systems.
Barron and the County Welfare Department Agree to a Welfare-to-Work Plan that Requires Her to Attend School Full-Time or Lose Benefits. Barron was enrolled in CalWORKs, California’s Temporary Assistance for Needy Families public assistance program (Cal. Welf. & Inst. Code §§ 11200 et seq.). As do many states’ cash aid programs, CalWORKs requires an adult who does not qualify for a statutory exception to participate in a sequence of welfare-to-work activities in order to retain benefits. The county welfare department assesses the barriers to the recipient’s ability to secure employment. The county and the recipient then develop a welfare-to-work plan “that specifies the activities to which the participant will be assigned and the services that will be provided” (Barron, 173 Cal. App. 4th at 299). Barron’s plan required her to attend a local community college full-time to redress serious learning disabilities that were preventing her from succeeding in the job market. If Barron failed without good cause to comply with her plan, she would be subject to sanctions, including the loss of benefits.
The Child Support Agency Moves for a Seek-Work Order and a Family Court Agrees, Threatening Barron with Revocation of Her Driver’s License Unless She Ignores Her CalWORKs Plan and Seeks Full-Time Work. Meanwhile, Barron’s former husband fell behind on his child support payments and Santa Clara County’s child support enforcement agency substituted itself as payee (id. at 296). The county filed a motion in family court “‘to increase or add arrears liquidation’” and for a “‘seek work order’” (id. at 297). At the hearing, Barron, appearing without counsel, explained that she was attending school as required by her CalWORKs plan, but the trial court (a family court commissioner) ordered her to seek work nonetheless (id.).
At a second hearing five months later, Barron testified that she had obtained a part-time job that would enable her to keep attending school, but the trial court informed her that this was not good enough. The court ordered both parents to secure full-time work and added, “[I]f that means you quit school to get a job, so be it. You’ve got children to support, this is ridiculous for both of you.” The court’s order stated: “ComplianceCalWORKs insufficient. [Drivers’] licenses will be revoked if not working” (id.)
Barron Finds Counsel and Fights Back, Securing an Appellate Stay of the Order. The tide began to turn when Barron made her way into the San Jose offices of Bay Area Legal Aid. Now represented by BayLegal and the Western Center on Law and Poverty, Barron appealed the order, filed a petition for an appellate writ, and sought a stay, which the Court of Appeal granted.
Court of Appeal Rules for Barron, Then Agrees to Publish Its Decision. With Barron out of immediate jeopardy, counsel began to focus efforts on securing a published appellate decision that would benefit other California welfare recipients facing similar problems. The issue was far from new. Twenty years earlier a San Diego family law court had issued similar orders to several recipients of Aid to Families with Dependent Children (AFDC), CalWORKs’ predecessor. The Court of Appeal in that case struck down the orders on due process grounds, reasoning that the recipients had not been given prior warning that they would be subject to seek-work orders (Anderson v. Superior Court, 213 Cal. App. 3d 1321, 1329–31 (1989)). A concurring opinion argued that the seek-work orders were invalid because they interfered with the AFDC statutory scheme (id. at 1332–37), but the author of that opinion conceded that this was only his “personal view of the applicable law,” not the holding of the case (id. at 1337 (Wiener, J., concurring)). Thus the issue remained unresolved, with anecdotal evidence that the problem kept recurring throughout the state.
While Barron’s counsel pushed for an opinion to decide the issue, the county took the opposite approach, seeking to have Barron’s claims dismissed on procedural grounds and announcing that it would not file a brief on the merits. Instead the county asked the Court of Appeal to remand the case to the trial court to consider unspecified evidence (173 Cal. App. 4th at 298, 300).
The Court of Appeal refused and issued an opinion reversing the seek-work order. The appellate court agreed with Barron that the trial court’s order “‘thwarts’ the operation of the law pertaining to CalWORKs” (id. at 298). The opinion states that since the purpose of CalWORKs is to help parents become self-supporting, a parent complying with her CalWORKs plan “is, in effect, in the process of seeking employment” (id. at 300). A seek-work order conflicting with the plan “places the parent in the untenable position of having to choose between the possibility of sanctions imposed for failing to comply with the welfare-to-work plan and sanctions for ignoring the court order. There is no reasonable basis for putting a parent in that position” (id.).
The Court of Appeal also ruled for Barron on due process grounds. The court held that Barron “was unquestionably caught off guard by the trial court’s insistence that she quit school and pursue full-time employment.” When an individual is “subjected to deprivatory governmental action, the individual always has a due process interest ‘in being treated with respect and dignity.’ … The proceedings in this case fell short of that mark” (id.; citation omitted).
The opinion initially was issued as unpublished, as are more than 90 percent of Court of Appeal opinions in California. This would have made Barron the sole beneficiary of the opinion, as California litigants generally are prohibited from citing unpublished opinions in other cases (Cal. R. Ct. 8.1115(a)).
Barron then submitted to the court a letter requesting publication, explaining the importance of the case to CalWORKs recipients throughout the state. Counsel secured two other letters supporting publication: one from the Harriett Buhai Center for Family Law and eight California family law professors; and the other from the Legal Aid Association of California, which represents more than seventy-five aid service programs throughout the state. These efforts succeeded—the Court of Appeal agreed to publication.
Lessons: The Importance to Legal Aid Strategy of Cross-Specialty and Appellate Advocacy
In recent years many legal aid advocates have become specialists—they do health, or housing, or welfare, or family law. But clients’ problems are not so specialized and separate. A client who walks into your office may have trouble paying her rent because her welfare grant is cut when she does not comply with her welfare-to-work requirements. She may have trouble complying with the requirements because she is sick and cannot afford to go to a doctor. Advocates must be able to spot the different issues that are involved in a client’s life. Barron’s problem was not confined to one substantive area of law. When she sought help from legal aid, her attorney recognized the intersection between CalWORKs and family law. In litigating the case, that attorney, a public benefits specialist, talked to family law experts and became well versed in child support and family court procedures.
The Barron issue is not unique to California. Most states have both welfare-to-work requirements and child support systems in which welfare recipients assign to the government the recipients’ rights to child support (42 U.S.C. §§ 602(a)(2), 607(e), 608(a)). Some states, as their fiscal problems become more dire, may become more aggressive in seeking to recoup the cost of cash assistance by enforcing child-support obligations. Family law judges, like the commissioner in this case, will be tempted to try to force recipients to give up their plans for education—a particularly disastrous result for the many women who are leaving abusive relationships or who otherwise have been shielded from the labor market for years and lack necessary skills. In response, welfare advocates may have to become more familiar with family law issues, and family law advocates may have to do the same for welfare-to-work requirements.
Another noteworthy aspect of Barron is the use of the appellate courts. In some ways Barron was a throwback to an earlier time: a rare modern example of legal aid advocacy with the primary purpose of helping large numbers of poor people through securing an appellate opinion. In the early days of federally funded legal services, this approach was far more common. Attorneys devised long-term strategies to change the face of poverty law, indeed poverty itself, through the U.S. Supreme Court. Although they never realized their most ambitious goals (e.g., establishing a constitutional right to a minimum income), these attorneys achieved remarkable success. From 1967 through 1974—well into the Burger Court era—legal aid programs were more successful than any entity other than the solicitor general in persuading the Supreme Court to hear their cases. During that period they won victories for their clients in 74 of 119 cases, or 62 percent of the 199 cases the Court reviewed, including such landmark decisions as Goldberg v. Kelly, 397 U.S. 254 (1970), and Shapiro v. Thompson, 394 U.S. 618 (1969) (Susan E. Lawrence, The Poor in Court: The Legal Services Program and Supreme Court Decision Making 98 (1990)).
While legal aid programs still achieve major victories for their clients, appellate advocacy has played a diminishing role in strategic planning for many reasons: the composition of the current U.S. Supreme Court; the barriers to federal litigation annually summarized in Clearinghouse Review (for the latest, see Gary F. Smith et al., The Supreme Court’s 2008-2009 Decisions on Court Access: The March to the Right Continues, 43 Clearinghouse Review 324 (Nov.–Dec. 2009); more sophisticated potential defendants (i.e., less “low-hanging fruit”); better use of alternative strategies such as legislative and administrative advocacy (when permissible); and less poverty litigation generally nationwide from which to select appeals.
We cannot realistically expect to return immediately to the halcyon days of four decades ago. Nonetheless, as Barron illustrates, in appropriate cases legal aid attorneys should use appellate litigation as an important part of their advocacy strategy, and they can be successful in doing so.