Goldberg v. Kelly

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Goldberg v. Kelly
Seal of the United States Supreme Court.svg
Argued October 13, 1969
Decided March 23, 1970
Full case name Goldberg, Commissioner of Social Services of the City of New York v. Kelly, et al.
Citations 397 U.S. 254 (more)
90 S. Ct. 1011; 25 L. Ed. 2d 287; 1970 U.S. LEXIS 80
Prior history Appeal from the United States District Court for the Southern District of New York
The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires a full evidentiary hearing before a recipient of certain government benefits is deprived of such benefits.
Court membership
Case opinions
Majority Brennan, joined by Douglas, Harlan, White, Marshall
Dissent Burger
Dissent Stewart
Dissent Black
Laws applied
U.S. Const. amend. XIV

Goldberg v. Kelly, 397 U.S. 254 (1970), is a case in which the United States Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires an evidentiary hearing before a recipient of certain government benefits (welfare) can be deprived of such benefits. The individual losing benefits is not entitled to a trial, but is entitled to an oral hearing before an impartial decision-maker, the right to confront and cross-examine witnesses, and the right to a written opinion setting out the evidence relied upon and the legal basis for the decision.[1] The case was decided 5-3.(There was a vacancy on the Court, owing to the resignation of Abe Fortas.)


  1. Does the Fourteenth Amendment of the United States Constitution demand a hearing before the termination of statutorily defined welfare benefits?
  2. Does a pre-termination “informal hearing” in a welfare case satisfy the requirements of the Fourteenth Amendment?
  3. Does the Fourteenth Amendment require a full “evidentiary hearing” prior to termination of welfare benefits?
  4. Does the welfare recipient have the right to counsel or an attorney at an evidentiary hearing?
  5. To what extent does the welfare administrative decision maker need to be impartial?


1. Welfare benefits are a matter of statutory entitlement for persons qualified to receive them and procedural due process is applicable to their termination.[2]

2. The interest of the eligible recipient in the uninterrupted receipt of public assistance, which provides him with essential food, clothing, housing, and medical care, coupled with the State's interest that his payments not be erroneously terminated, clearly outweighs the State's competing concern to prevent any increase in its fiscal and administrative burdens.[3]

3. A pre-termination evidentiary hearing is necessary to provide the welfare recipient with procedural due process.[4]

(a) Such hearing need not take the form of a judicial or quasi-judicial trial, but the recipient must be provided with timely and adequate notice detailing the reasons for termination, and an effective opportunity to defend by confronting adverse witnesses and by presenting his own arguments and evidence orally before the decision maker.[5]

(b) Counsel need not be furnished at the pre-termination hearing, but the recipient must be allowed to retain an attorney if he so desires.[6]

(c) a decision resting “solely on the legal rules and evidence adduced at the hearing"[7]

(d) The decision maker need not file a full opinion or make formal findings of fact or conclusions of law but should state the reasons for his determination and indicate the evidence he relied on.[8]

(e) The decision maker must be impartial, and although prior involvement in some aspects of a case will not necessarily bar a welfare official from acting as decision maker, he should not have participated in making the determination under review.[8][9]

Facts and background[edit]

Appellees are New York City residents receiving financial aid under the federally assisted Aid to Families with Dependent Children program or under New York State's general Home Relief program who allege that officials administering these programs terminated, or were about to terminate, such aid without prior notice and hearing, thereby denying them due process of law. The District Court held that only a pre-termination evidentiary hearing would satisfy the constitutional command, and rejected the argument of the welfare officials that the combination of the existing post-termination "fair hearing" and informal pre-termination review was sufficient.

This action was brought in the District Court for the Southern District of New York by residents of New York City [10] receiving financial aid under the federally assisted program of Aid to Families with Dependent Children (AFDC) or under New York State's general Home Relief program. Their complaint alleged that the New York State and New York City officials administering these programs terminated, or were about to terminate, such aid without prior notice and hearing, thereby denying them due process of law. At the time [11] the suits were filed there was no requirement of prior notice or hearing of any kind before termination of financial aid. However, the State and city adopted procedures for notice and hearing after the suits were brought, and the plaintiffs, appellees here, then challenged the constitutional adequacy of those procedures.

The State Commissioner of Social Services amended the State Department of Social Services' Official Regulations to require that local social services officials proposing to discontinue or suspend a recipient's financial aid do so according to a procedure that conforms to either subdivision (a) or subdivision (b) of 351.26 of the regulations as amended The City of New York [12] elected to promulgate a local procedure according to subdivision (b). That subdivision, so far as here pertinent, provides that the local procedure must include the giving of notice to the recipient of the reasons for a proposed discontinuance or suspension at least seven days prior to its effective date, with notice also that upon request the recipient may have the proposal reviewed by a local welfare official holding a position superior to that of the supervisor who approved the proposed discontinuance or suspension, and, further, that the recipient may submit, for purposes of the review, a written statement to demonstrate why his grant should not be discontinued or suspended. The decision by the reviewing official whether to discontinue or suspend aid must be made expeditiously, with written notice of the decision to the recipient. The section further expressly provides that "[a]ssistance shall not be discontinued or suspended prior to the date such notice of decision is sent to the recipient and his representative, if any, or prior to the proposed effective date of discontinuance or suspension, whichever occurs later."

Growth of federal involvement in funding and administrating welfare began under President John F. Kennedy.

Pursuant to subdivision (b), the New York City Department of Social Services promulgated Procedure No. 68-18. A caseworker who has doubts about the recipient's continued eligibility must first discuss them with the recipient. If the caseworker concludes that the recipient is no longer eligible, he recommends termination [13] of aid to a unit supervisor. If the latter concurs, he sends the recipient a letter stating the reasons for proposing to terminate aid and notifying him that within seven days he may request that a higher official review the record, and may support the request with a written statement prepared personally or with the aid of an attorney or other person. If the reviewing official affirms the determination of ineligibility, aid is stopped immediately and the recipient is informed by letter of the reasons for the action. Appellees' challenge to this procedure emphasizes the absence of any provisions for the personal appearance of the recipient before the reviewing official, for oral presentation of evidence, and for confrontation and cross-examination of adverse witnesses. However, the letter does inform the recipient that he may request a post-termination "fair hearing." This is a proceeding before an independent [14] state hearing officer at which the recipient may appear personally, offer oral evidence, confront and cross-examine the witnesses against him, and have a record made of the hearing. If the recipient prevails at the "fair hearing" he is paid all funds erroneously withheld.[15] A recipient whose aid is not restored by a "fair hearing" decision may have judicial review.[16] The recipient is so notified,[17]

Majority Opinion by Mr. Justice Brennan[edit]

Part I[edit]

The constitutional issue to be decided, therefore, is the narrow one whether the Due Process Clause requires that the recipient be afforded an evidentiary hearing before the termination of benefits. The District Court held [18] that only a pre-termination evidentiary hearing would satisfy the constitutional command, and rejected the argument of the state and city officials that the combination of the post-termination "fair hearing" with the informal pre-termination review disposed of all due process claims. The court said: While post-termination review is relevant, there is one overpowering fact which controls here. By hypothesis, a welfare recipient is destitute, without funds or assets. . . . Suffice it to say that to cut off a welfare recipient in the face of . . . "brutal need" without a prior hearing of some sort is unconscionable unless overwhelming considerations justify it. Kelly v. Wyman [19] The court rejected the argument that the need to protect the public's tax revenues supplied the requisite "overwhelming consideration." Against the justified desire to protect public funds must be weighed the individual's overpowering need in this unique situation not to be wrongfully deprived of assistance.... While the problem of additional expense must be kept in mind, it does not justify denying a hearing meeting the ordinary standards of due process. Under all the circumstances, we hold that due process requires an adequate hearing before termination of welfare benefits, and the fact that there is a later constitutionally fair proceeding does not alter the result. Id. at 901. Although state officials were party defendants in the action, only the Commissioner of Social Services of the City of New York appealed. We noted probable jurisdiction [20] to decide important issues that have been the subject of disagreement in principle between the three-judge court in the present case and that convened in Wheeler v. Montgomery [21] also decided today. We affirm. Appellant does not contend that procedural due process is not applicable to the termination of welfare benefits.[22] Such benefits are a matter of statutory entitlement for persons qualified to receive them. Their termination involves state action that adjudicates important rights. The constitutional challenge cannot be answered by an argument that public assistance benefits are "a ‘privilege,' and not a 'right.'" Shapiro v. Thompson [23] Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner [24] or to denial of a tax exemption, Speiser v. Randall [25] or to discharge from public employment, Slochower v. Board of Higher Education.[26] The extent to which procedural due process [27] must be afforded the recipient is influenced by the extent to which he may be "condemned to suffer grievous loss," Joint Anti-Fascist Refugee Committee v. McGrath [28] and depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interest in summary adjudication. Accordingly, as we said in Cafeteria & Restaurant Workers Union v. McElroy [29] consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved, as well as of the private interest that has been affected by governmental action. See also Hannah v. Larche.[30] It is true, of course, that some governmental benefits may be administratively terminated without affording the recipient a pre-termination evidentiary hearing.[31] But we agree with the District Court that, when welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process. Cf. Sniadach v. Family Finance Corp.[32] For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care. Cf. Nash v. Florida Industrial Commission.[33] Thus, the crucial factor in this context—a factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else whose governmental entitlements are ended—is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy.

Federal welfare was administered through the newly created Department of Health Education and Welfare.

Moreover, important governmental interests are promoted by affording recipients a pre-termination evidentiary hearing. From its founding, the Nation's basic [34] commitment has been to foster the dignity and well being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty. This perception, against the background of our traditions, has significantly influenced the development of the contemporary public assistance system. Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community. At the same time, welfare guards against the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity. Public assistance, then, is not mere charity, but a means to "promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." The same governmental interests that counsel the provision of welfare, counsel as well its uninterrupted provision to those eligible to receive it; pre-termination evidentiary hearings are indispensable to that end.

Appellant does not challenge the force of these considerations but argues that they are outweighed by countervailing governmental interests in conserving fiscal and administrative resources. These interests, the argument goes, justify the delay of any evidentiary hearing until after discontinuance of the grants. Summary adjudication protects the public fisc by stopping payments promptly upon discovery of reason to believe that a recipient is no longer eligible. Since most terminations are accepted without challenge, summary adjudication also conserves both the fisc and administrative time and energy by reducing the number of evidentiary hearings actually held.[35]

We agree with the District Court, however, that these governmental interests are not overriding in the welfare context. The requirement of a prior hearing doubtless involves some greater expense, and the benefits paid to ineligible recipients pending decision at the hearing probably cannot he recouped, since these recipients are likely to be judgment-proof. But the State is not without weapons to minimize these increased costs. Much of the drain on fiscal and administrative resources can be reduced by developing procedures for prompt pre-termination hearings and by skillful use of personnel and facilities. Indeed, the very provision for a post-termination evidentiary hearing in New York's Home Relief program is itself cogent evidence that the State recognizes the primacy of the public interest in correct eligibility determinations, and therefore in the provision of procedural safeguards. Thus, the interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the State's interest that his payments not be erroneously terminated, clearly outweighs the State's competing concern to prevent any increase in its fiscal and administrative burdens. As the District Court correctly concluded, [t]he stakes are simply too high for the welfare recipient, and the possibility for honest error or irritable misjudgment too great, to allow termination of aid without giving the recipient a chance, if he so desires, to be fully informed of the case against him so that he may contest its basis and produce evidence in rebuttal. [36]

Part II[edit]

We also agree with the District Court, however, that the pre-termination hearing need not take the form of a judicial or quasi-judicial trial. We bear in mind that the statutory "fair hearing" will provide the recipient [37] with a full administrative review. Accordingly, the pre-termination hearing has one function only: to produce an initial determination of the validity of the welfare department's grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits. Cf. Sniadach v. Family Finance Corp.[38] Thus, a complete record and a comprehensive opinion, which would serve primarily to facilitate judicial review and to guide future decisions, need not be provided at the pre-termination stage. We recognize, too, that both welfare authorities and recipients have an interest in relatively speedy resolution of questions of eligibility, that they are used to dealing with one another informally, and that some welfare departments have very burdensome caseloads. These considerations justify the limitation of the pre-termination hearing to minimum procedural safeguards, adapted to the particular characteristics of welfare recipients, and to the limited nature of the controversies to be resolved. We wish to add that we, no less than the dissenters, recognize the importance of not imposing upon the States or the Federal Government in this developing field of law any procedural requirements beyond those demanded by rudimentary due process.

Federal involvement in welfare was designed to end the poverty of big city tenements, among other places.

"The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean.[39] The hearing must be "at a meaningful time and in a meaningful manner." Armstrong v. Manzo [40] In the present context, these principles require that a recipient have timely and adequate notice detailing the reasons for a [41] proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally. These rights are important in cases such as those before us, where recipients have challenged proposed terminations as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases.

We are not prepared to say that the seven-day notice currently provided by New York City is constitutionally insufficient per se, although there may be cases where fairness would require that a longer time be given. Nor do we see any constitutional deficiency in the content or form of the notice. New York employs both a letter and a personal conference with a caseworker to inform a recipient of the precise questions raised about his continued eligibility. Evidently the recipient is told the legal and factual bases for the Department's doubts. This combination is probably the most effective method of communicating with recipients.

The city's procedures presently do not permit recipients to appear personally, with or without counsel, before the official who finally determines continued eligibility. Thus, a recipient is not permitted to present evidence to that official orally, or to confront or cross-examine adverse witnesses. These omissions are fatal to the constitutional adequacy of the procedures.

The opportunity to be heard must be tailored to the [42] capacities and circumstances of those who are to be heard. It is not enough that a welfare recipient may present his position to the decisionmaker in writing or second-hand through his caseworker. Written submissions are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance. Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decisionmaker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision. The second-hand presentation to the decisionmaker by the caseworker has its own deficiencies; since the caseworker usually gathers the facts upon which the charge of ineligibility rests, the presentation of the recipient's side of the controversy cannot safely be left to him. Therefore, a recipient must be allowed to state his position orally. Informal procedures will suffice; in this context, due process does not require a particular order of proof or mode of offering evidence.[43]

In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. E.g., ICC v. Louisville & N. R. Co.;[44] Willner v. Committee on Character & Fitness.[45] What we said in [46] Greene v. McElroy [47] is particularly pertinent here:

Certain principles have remained relatively immutable in our jurisprudence. One of these is that, where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment.... This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases,... but also in all types of cases where administrative... actions were under scrutiny. Welfare recipients must therefore be given an opportunity to confront and cross-examine the witnesses relied on by the department.

Welfare expanded under the Great Society programs of Lyndon B. Johnson in the 1960s.

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." Powell v. Alabama.[48] We do not say that counsel must be provided at the pre-termination hearing, but only that the recipient must be allowed to retain an attorney if he so desires. Counsel can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination, and generally safeguard the [49] interests of the recipient. We do not anticipate that this assistance will unduly prolong or otherwise encumber the hearing. Evidently, HEW has reached the same conclusion.[50][51]

Finally, the decisionmaker's conclusion as to a recipient's eligibility must rest solely on the legal rules and evidence adduced at the hearing. Ohio Bell Tel. Co. v. PUC [52] United States v. Abilene & S. R. Co.[53] To demonstrate compliance with this elementary requirement, the decisionmaker should state the reasons for his determination and indicate the evidence he relied on, cf. Wichita R. & Light Co. v. PUC [54] though his statement need not amount to a full opinion, or even formal findings of fact and conclusions of law. And, of course, an impartial decisionmaker is essential. Cf. In re Murchison,[55] Wong Yang Sung v. McGrath.[56] We agree with the District Court that prior involvement in some aspects of a case will not necessarily bar a welfare official from acting as a decisionmaker. He should not, however, have participated in making the determination under review.

Decision: Affirmed. Concurring Mr. Justice White, Mr. Justice Harlan, Mr. Justice Marshall, Mr. Justice Douglas

Dissenting opinion of Mr. Justice Black[edit]

MR. JUSTICE BLACK, dissenting. In the last half century the United States, along with many, perhaps most, other nations of the world, has moved far toward becoming a welfare state, that is, a nation that for one reason or another taxes its most [57] affluent people to help support, feed, clothe, and shelter its less fortunate citizens. The result is that today more than nine million men, women, and children in the United States receive some kind of state or federally financed public assistance in the form of allowances or gratuities, generally paid them periodically, usually by the week, month, or quarter. Since these gratuities are paid on the basis of need, the list of recipients is not static, and some people go off the lists and others are added from time to time. These ever-changing lists put a constant administrative burden on government and it certainly could not have reasonably anticipated that this burden would include the additional procedural expense imposed by the Court today.

The dilemma of the ever-increasing poor in the midst of constantly growing affluence presses upon us and must inevitably be met within the framework of our democratic constitutional government, if our system is to survive as such. It was largely to escape just such pressing economic problems and attendant government repression that people from Europe, Asia, and other areas settled this country and formed our Nation. Many of those settlers had personally suffered from persecutions of various kinds and wanted to get away from governments that had unrestrained powers to make life miserable for their citizens. It was for this reason, or so I believe, that on reaching these new lands the early settlers undertook to curb their governments by confining their powers [58] within written boundaries, which eventually became written constitutions. They wrote their basic charters as nearly as men's collective wisdom could do so as to proclaim to their people and their officials an emphatic command that: "Thus far and no farther shall you go; and where we neither delegate powers to you, nor prohibit your exercise of them, we the people are left free."

Representatives of the people of the Thirteen Original Colonies spent long, hot months in the summer of 1787 in Philadelphia, Pennsylvania, creating a government of limited powers. They divided it into three departments - Legislative, Judicial, and Executive. The Judicial Department was to have no part whatever in making any laws. In fact proposals looking to vesting some power in the Judiciary to take part in the legislative process and veto laws were offered, considered, and rejected by the Constitutional Convention. In my [59] judgment there is not one word, phrase, or sentence from the beginning to the end of the Constitution from which it can be inferred that judges were granted any such legislative power. True, Marbury v. Madison[60] held, and properly, I think, that courts must be the final interpreters of the Constitution, and I recognize that the holding can provide an opportunity to slide imperceptibly into constitutional amendment and law making. But when federal judges use this judicial power for legislative purposes, I think they wander out of their field of vested powers and transgress into the area constitutionally assigned to the Congress and the people. That is precisely what I believe the Court is doing in this case. Hence my dissent.

The more than a million names on the relief rolls in New York, and the more than nine million names on the rolls of all the 50 States were not put there at random. The names are there because state welfare officials believed that those people were eligible for assistance. Probably in the officials' haste to make out the lists many names were put there erroneously in order to alleviate immediate suffering, and undoubtedly some people are drawing relief who are not entitled under the law to do so. Doubtless some draw relief checks from time to time who know they are not eligible, either because they are not actually in need or for some other reason. Many of those who thus draw undeserved gratuities are without sufficient property to enable the government to collect back from them any money they wrongfully receive. But the Court today holds that it would violate the Due Process Clause of the Fourteenth Amendment to stop paying those people weekly or monthly allowances unless the government first affords them a full "evidentiary hearing" even [61] though welfare officials are persuaded that the recipients are not rightfully entitled to receive a penny under the law. In other words, although some recipients might be on the lists for payment wholly because of deliberate fraud on their part, the Court holds that the government is helpless and must continue, until after an evidentiary hearing, to pay money that it does not owe, never has owed, and never could owe. I do not believe there is any provision in our Constitution that should thus paralyze the government's efforts to protect itself against making payments to people who are not entitled to them.

Particularly do I not think that the Fourteenth Amendment should be given such an unnecessarily broad construction. That Amendment came into being primarily to protect Negroes from discrimination, and while some of its language can and does protect others, all know that the chief purpose behind it was to protect ex-slaves. Cf. Adamson v. California [62] The Court, however, relies upon the Fourteenth Amendment and in effect says that failure of the government to pay a promised charitable installment to an individual deprives that individual of his own property, in violation of the Due Process Clause of the Fourteenth Amendment. It somewhat strains credulity to say that the government's promise of charity to an individual is property belonging to that individual when the government denies that the individual is honestly entitled to receive such a payment.

I would have little, if any, objection to the majority's decision in this case if it were written as the report of the House Committee on Education and Labor, but as an opinion ostensibly resting on the language of the Constitution I find it woefully deficient. Once the verbiage is pared away it is obvious that this Court today adopts the views of the District Court "that to cut off a welfare recipient in the face of... `brutal need' without a prior [63] hearing of some sort is unconscionable," and therefore, says the Court, unconstitutional. The majority reaches this result by a process of weighing "the recipient's interest in avoiding" the termination of welfare benefits against "the governmental interest in summary adjudication." Ante, at 263. Today's balancing act requires a "pre-termination evidentiary hearing," yet there is nothing that indicates what tomorrow's balance will be. Although the majority attempts to bolster its decision with limited quotations from prior cases, it is obvious that today's result does not depend on the language of the Constitution itself or the principles of other decisions, but solely on the collective judgment of the majority as to what would be a fair and humane procedure in this case.

Justice Hugo Black, a strict constitutional constructionist, offered a vigorous dissent.

This decision is thus only another variant of the view often expressed by some members of this Court that the Due Process Clause forbids any conduct that a majority of the Court believes "unfair," "indecent," or "shocking to their consciences." See, e. g., Rochin v. California [64] Neither these words nor any like them appear anywhere in the Due Process Clause. If they did, they would leave the majority of Justices free to hold any conduct unconstitutional that they should conclude on their own to be unfair or shocking to them. Had the drafters of the Due Process Clause meant to leave judges such ambulatory power to declare [65] laws unconstitutional, the chief value of a written constitution, as the Founders saw it, would have been lost. In fact, if that view of due process is correct, the Due Process Clause could easily swallow up all other parts of the Constitution. And truly the Constitution would always be "what the judges say it is" at a given moment, not what the Founders wrote into the document. A written constitution, designed to guarantee protection against governmental abuses, including those of judges, must have written standards that mean something definite and have an explicit content. I regret very much to be compelled to say that the Court today makes a drastic and dangerous departure from a Constitution written to control and limit the government and the judges and moves toward a constitution designed to be no more and no less than what the judges of a particular social and economic philosophy declare on the one hand to be fair or on the other hand to be shocking and unconscionable.

The procedure required today as a matter of constitutional law finds no precedent in our legal system. Reduced to its simplest terms, the problem in this case is similar to that frequently encountered when two parties have an ongoing legal relationship that requires one party to make periodic payments to the other. Often the situation arises where the party "owing" the money stops paying it and justifies his conduct by arguing that the recipient is not legally entitled to payment. The recipient can, of course, disagree and go to court to compel payment. But I know of no situation in our legal system in which the person alleged to owe money to [66] another is required by law to continue making payments to a judgment-proof claimant without the benefit of any security or bond to insure that these payments can be recovered if he wins his legal argument. Yet today's decision in no way obligates the welfare recipient to pay back any benefits wrongfully received during the pre-termination evidentiary hearings or post any bond, and in all "fairness" it could not do so. These recipients are by definition too poor to post a bond or to repay the benefits that, as the majority assumes, must be spent as received to insure survival.

The Court apparently feels that this decision will benefit the poor and needy. In my judgment the eventual result will be just the opposite. While today's decision requires only an administrative, evidentiary hearing, the inevitable logic of the approach taken will lead to constitutionally imposed, time-consuming delays of a full adversary process of administrative and judicial review. In the next case the welfare recipients are bound to argue that cutting off benefits before judicial review of the agency's decision is also a denial of due process. Since, by hypothesis, termination of aid at that point may still "deprive an eligible recipient of the very means by which to live while he waits," ante, at 264, I would be surprised if the weighing process did not compel the conclusion that termination without full judicial review would be unconscionable. After all, at each step, as the majority seems to feel, the issue is only one of weighing the government's pocketbook against the actual survival of the recipient, and surely that balance must always tip in favor of the individual. Similarly today's decision requires only the opportunity to have the benefit of counsel at the administrative hearing, but it is difficult to believe that the same reasoning process would not require the appointment of counsel, for otherwise the right to counsel is a meaningless one since these [67] people are too poor to hire their own advocates. Cf. Gideon v. Wainwright [68] Thus the end result of today's decision may well be that the government, once it decides to give welfare benefits, cannot reverse that decision until the recipient has had the benefits of full administrative and judicial review, including, of course, the opportunity to present his case to this Court. Since this process will usually entail a delay of several years, the inevitable result of such a constitutionally imposed burden will be that the government will not put a claimant on the rolls initially until it has made an exhaustive investigation to determine his eligibility. While this Court will perhaps have insured that no needy person will be taken off the rolls without a full "due process" proceeding, it will also have insured that many will never get on the rolls, or at least that they will remain destitute during the lengthy proceedings followed to determine initial eligibility.

For the foregoing reasons I dissent from the Court's holding. The operation of a welfare state is a new experiment for our Nation. For this reason, among others, I feel that new experiments in carrying out a welfare program should not be frozen into our constitutional structure. They should be left, as are other legislative determinations, to the Congress and the legislatures that the people elect to make our laws.


The Goldberg decision set the parameters for procedural due process when dealing with the deprivation of a government benefit or entitlement. The Court held that a person has a property interest in certain government entitlements, which require notice and a hearing before a governmental entity (either state or federal) takes them away. Government-provided entitlements from the modern welfare state increased substantially in the United States during the 20th century. The Goldberg court decided that such entitlements (e.g., welfare payments, government pensions, professional licenses), are a form of "new property" that require pre-deprivation procedural protection, doing away with the traditional distinction between rights and privileges.

In Goldberg v. Kelly the court majority stated that welfare benefits are property[69] and articulated the general proposition that welfare enjoys the same legal protection as other property.[70] Justice William Brennan noted that welfare benefits are ‘‘a matter of statutory entitlement for persons qualified to receive them,’’ adding that ‘‘it may be realistic today to regard welfare entitlements as more like ‘property’ than a ‘gratuity’’’[71] Here Brennan cited Charles A. Reich’s book ‘‘The New Property’’.[70] The prohibition against deprivation of property without due process of law contained in the Fourteenth Amendment to the U.S. Constitution therefore applies to benefits termination.[70]

This specific case dealt with 20 individuals who had been suspected of welfare fraud by New York City officials and were then denied municipal benefits.[1] The opinion of the Court was delivered by Justice William Brennan, while dissenting opinions were filed by Justices Hugo Black and Potter Stewart and Chief Justice Warren Burger. Brennan said at his retirement that he considered it the most important case he'd ever decided; conservative columnist David Frum once opined that the case was a major factor in New York City's 1975 budget meltdown.[1][1]

John Kelly, acting on behalf of New York residents receiving financial assistance either under the federally-assisted program for Families with Dependent Children or under New York State's home relief program, challenged the constitutionality of procedures for notice and termination of such aid. Although originally offering no official notice or opportunity for hearings to those whose aid was scheduled for termination, the State of New York implemented a hearing procedure after commencement of Kelly's litigation.

The decision in Goldberg v. Kelly answered questions which had been unresolved in the previous Supreme Court cases of Rudder v. United States [72] and Thorpe v. Housing Authority of Durham.[73][74] Those cases involved questions of denial of tenancy or eviction in governmental housing projects. Goldberg established that state action terminating public assistance payments to a particular recipient prior to an evidentiary hearing violates due process.[75] Goldberg was contrasted to the First Circuit decision in Hahn v. Gottlieb [76] where is was determined that tenants were not entitled to a hearing in front of the Federal Housing Authority under the due process clause, even though there was significant government involvement. The Supreme Court distinguished Goldberg v. Kelly on two grounds. The first was that the governmental interest involved was different because the government functions primarily as “an insurer for private investors.” [77][78] The significance of this distinction is that the government’s “freedom to pursue social goals is limited by the need to avoid excessive losses.” [78][79] The second basis of distinction was based on the interest of the tenants: the tenants were not “entitled” to low rents in the same sense that recipients of welfare in Goldberg and that a rental increase is not as serious an injury.[80]

It has been noted that the precarious financial status of those in poverty may preclude an extensive litigation process, despite the decision in Goldberg. The federal abstention doctrine presupposes the adequacy of state process to protect constitutional rights. Poor people may lack the funds to pursue a court hearing process.[81][82][83] One solution has been through the use of a preliminary injunction which preserves the status quo while the litigation proceeds.[84]

See also[edit]


  1. ^ a b c d Frum, David (2000). How We Got Here: The '70s. New York, New York: Basic Books. pp. 228–229. ISBN 0-465-04195-7. 
  2. ^ Pp. 261-263
  3. ^ Pp. 264-266
  4. ^ Pp. 264, 266-271
  5. ^ Pp. 266-270. [397 U.S. 254, 255]
  6. ^ P. 270
  7. ^ Mathews v. Eldridge, 424 U.S. 319 (1976), opinion of the court, footnote 4. Text of footnote: In Goldberg the Court held that the pretermination hearing must include the following elements: (1) "timely and adequate notice detailing the reasons for a proposed termination"; (2) "an effective opportunity [for the recipient] to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally"; (3) retained counsel, if desired; (4) an "impartial" decisionmaker; (5) a decision resting "solely on the legal rules and evidence adduced at the hearing"; (6) a statement of reasons for the decision and the evidence relied on. 397 U.S., at 266 -271. In this opinion the term "evidentiary hearing" refers to a hearing generally of the type required in Goldberg.
  8. ^ a b P. 271
  9. ^ 294 F. Supp. 893, affirmed
  10. ^ [397 U.S. 254, 256]
  11. ^ [397 U.S. 254, 257]
  12. ^ [397 U.S. 254, 258]
  13. ^ [397 U.S. 254, 259]
  14. ^ [397 U.S. 254, 260]
  15. ^ HEW Handbook, pt. IV, 6200-6500; 18 NYCRR 84.2-84.23
  16. ^ N. Y. Civil Practice Law and Rules, Art. 78 (1963)
  17. ^ 18 NYCRR 84.16
  18. ^ [p261]
  19. ^ 294 F.Supp. 893, 899, 900 (1968)
  20. ^ 394 U.S. 971 (1969)
  21. ^ No. 14, post, p. 280
  22. ^ [p262]
  23. ^ 394 U.S. 618, 627 n. 6 (1969)
  24. ^ 374 U.S. 398 (1963)
  25. ^ 357 U.S. 513 (1958)
  26. ^ 350 U.S. 551 (1956)
  27. ^ p.263
  28. ^ 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring)
  29. ^ 367 U.S. 886, 895 (1961)
  30. ^ 363 U.S. 420, 440, 442 (1960)
  31. ^ p.264
  32. ^ 395 U.S. 337 (1969)
  33. ^ 389 U.S. 235, 239 (1967)
  34. ^ p.265
  35. ^ p.266
  36. ^ 294 F.Supp. at 904-905
  37. ^ p.267
  38. ^ 395 U.S. 337, 343 (1969) (HARLAN, J., concurring)
  39. ^ 234 U.S. 385, 394 (1914)
  40. ^ 380 U.S. 545, 552 (1965)
  41. ^ p.268
  42. ^ p.269
  43. ^ Cf. HEW Handbook, pt. IV, § 6400(a)
  44. ^ 227 U.S. 88, 93-94 (1913)
  45. ^ 373 U.S. 96, 103-104 (1963)
  46. ^ p.270
  47. ^ 360 U.S. 474, 496-497 (1959)
  48. ^ , 287 U.S. 45, 669 (1932)
  49. ^ p271
  50. ^ See 45 CFR § 205.10, 34 Fed.Reg. 1144 (1969)
  51. ^ 45 CFR § 220.25, 34 Fed.Reg. 13595 (1969)
  52. ^ 301 U.S. 292 (1937)
  53. ^ 265 U.S. 274, 288-289 (1924)
  54. ^ 260 U.S. 48, 57-59 (1922)
  55. ^ 349 U.S. 133 (1955)
  56. ^ 339 U.S. 33, 45-46 (1950)
  57. ^ [397 U.S. 254, 272]
  58. ^ [397 U.S. 254, 273]
  59. ^ [397 U.S. 254, 274]
  60. ^ 1 Cranch 137 (1803)
  61. ^ [397 U.S. 254, 275]
  62. ^ 332 U.S. 46, 71 -72, and n. 5 (1947) (dissenting opinion)
  63. ^ [397 U.S. 254, 276]
  64. ^ 342 U.S. 165, 172 (1952)
  65. ^ [397 U.S. 254, 277]
  66. ^ [397 U.S. 254, 278]
  67. ^ [397 U.S. 254, 279]
  68. ^ 372 U.S. 335, 344 (1963)
  69. ^ Compare Justice Hugo Blacks dissenting opinion writing: "The Court, however, relies upon the Fourteenth Amendment and in effect says that failure of the government to pay a promised charitable installment to an individual deprives that individual of his own property, in violation of the Due Process Clause of the Fourteenth Amendment. It somewhat strains credulity to say that the government's promise of charity to an individual is property belonging to that individual when the government denies that the individual is honestly entitled to receive such a payment."
  70. ^ a b c Amy Shapiro (28 June 2012). "Goldberg v. Kelly, 397 U.S. 254 (1970)". American Civil Liberties. American Civil Liberties. Retrieved 19 January 2014. 
  71. ^ Goldberg v. Kelly, 397 U.S. 254 (1970, majority opinion.
  72. ^ 96 U.S. App. D. C. 329, 226 F.2d 51 (1955)
  73. ^ 386 U. S. 670, 87 S. Ct. 1244 (1966)
  74. ^ 393 U. S. 268, 89 S. Ct. 518 (1969)
  75. ^ LaFrance, A. B.; Schroeder, M. R.; Bennett, R. W.; Boyd, W. E., “Law of the Poor,” West Publishing Co. St. Paul, Minnesota, 1973; pp. 212 et seq.
  76. ^ 430 F. 2d 1243 (1st Circ. 1970)
  77. ^ see government function under 221 (d) (3)
  78. ^ a b 430 F. 2d at 1247
  79. ^ LaFrance ibid p. 226
  80. ^ Id. 430 F.2d at 1247
  81. ^ LaFrance, ibid., pp. 514 et seq
  82. ^ Dombrowski v. Pfister, 380 U.S. 479, 85, S. Ct. 1116 (1965)
  83. ^ Douglas v. City of Jeannette, 319 U. S. 157 63 S. Ct. 877 (1943), reh denied 319 U. S. 472, 63 S. Ct. 1170
  84. ^ LaFrance, ibid. p. 511


External links[edit]

  • Text of Goldberg v. Kelly, 397 U.S. 254 (1970) is available from:  Findlaw  Justia