State Ex Rel. Sell v. Milwaukee County

222 N.W.2d 592, 65 Wis. 2d 219, 1974 Wisc. LEXIS 1255

• Court: Wisconsin Supreme Court
• Decided: October 29, 1974
• Docket: 234
• Status: Published

Opinions

Wilkie, C. J.

This appeal is from an order denying a petition for a writ of mandamus sought to compel Milwaukee county, the board of supervisors of Milwaukee, the board of public welfare of Milwaukee county and two officials of the department of public welfare to provide such general relief to plaintiffs “as may be reasonable [and] necessary under the circumstances and as required by secs. 49.02 (1) and 49.02 (2), Wis. Stats. (1971).” Plaintiffs Todd Richard Sell and his wife Olivia Sell were denied relief solely for refusal to comply with a department rule which provided:

“In General Assistance cases automobiles, motorcycles, trucks, etc., are to be sold, except where the assistance is temporary, in which case the plates and title will be turned over to the department; or where a specific budg-etable income is directly traceable to the continued use of such vehicle; or in other emergency situations. In Social Security Aids, the department will follow the policy of the State Department of Public Welfare.”

It is conceded by the defendants-respondents that the sole reason plaintiffs-appellants were denied relief was their failure to surrender their car license plates and title as provided for by the department rule.

The sole issue presented here is the validity of that rule as against the contention that the county, by invoking that rule, failed to furnish relief to the plaintiffs as eligible dependent persons within Milwaukee county, pursuant to sec. 49.02 (1) and (2), Stats. We hold that this rule, as applied by the department as a flat prerequisite to even temporary assistance, violates sec. 49.02 (1) and (2).

This appeal reaches this court after the petition for a writ of mandamus resulted in an alternative writ, and in a return being filed on behalf of all the defendants-respondents. From the petition it appears that the Sells are residents of the city and county of Milwaukee. Todd owned a 1965 Oldsmobile purchased for $100 on November 26, 1972. He became unemployed on February 1, 1973, and thereafter used the car to look for new work. He remained unemployed, however, at the time the writ was filed. Olivia was pregnant, having an expected delivery date of March 2, 1973. The alternative writ alleges she needed the car to have access to medical care during the final month of her pregnancy. On February 9, 1973, the Sells applied for general relief to the Milwaukee county department of public welfare and received an emergency food voucher for $10.20. On February 16th they received another such voucher but were told they would not receive any further assistance until they surrendered to the department their car title and license plates. In the return filed by defendants-respondents, the county and county officials denied that the Sells are dependent persons eligible for relief and denied that refusal to provide the Sells with relief is illegal in any respect.

At the hearing before the trial court, defendants’ attorney conceded that the sole reason plaintiffs were denied relief was their failure to surrender their car license plates and title and that the county welfare department had not conducted a factual investigation as to whether the Sells otherwise qualified for relief. The defendants took the position that the Sells were not dependent persons because the fact of their automobile ownership conclusively established nondependency in the eyes of the department. The trial court found that the Sells owned a car valued “at, or slightly less than, one hundred dollars” and “that such property can be presently converted into cash money through its sale.”

Sec. 49.02 (1), Stats., provides, in part, “Every municipality shall furnish relief only to all eligible dependent persons therein.” Under sec. 49.51 (2) (a), the Milwaukee county department of public welfare administers the relief program in Milwaukee county, and thereby assumes the “functions, duties and powers” imposed on municipalities by sec. 49.02 (1).¹ We have previously held that failure to provide relief in accordance with the command of the statute is the proper subject for the writ of mandamus.²

The disputed rule provides for denying any temporary assistance until an applicant for relief has transferred to the department his car title and license plates, but the relief statute, sec. 49.02 (1), requires relief to be granted to “all eligible dependent persons.” It is clear that by requiring the transfer as a preliminary to the granting of even temporary relief, the department has spelled out in rule form an unauthorized and illegal prerequisite to the exercise by welfare authorities of their statutory duty to determine whether or not a person seeking temporary assistance is, in fact, a dependent person and eligible for relief. The dispensation of relief is entirely governed by statute and in this respect we said, as early as 1935, in Spaulding v. Wood County:

“It is conceded that the county has only such authority as is conferred upon it by statute. Counties are purely auxiliaries of the state and can exercise only such powers as are conferred upon them by statute, or such as are necessarily implied therefrom. 1 Dillon, Mun. Corp. (6th ed.), sec. 37; Frederick v. Douglas County, 96 Wis. 411, 417, 71 N. W. 798.” ³

As the court said in State ex rel. Arteaga v. Silverman:

“. . . The determination of whether applicants for relief, under sec. 49.02, are ‘dependent persons’ is a question of fact that is not left to the discretion of local welfare officials. Outagamie County v. Town of Brooklyn (1962), 18 Wis. 2d 303, 311, 312, 118 N. W. 2d 201.” ⁴

Under sec. 49.01 (1) and (4), Stats., the factual determination of dependency status must include a finding as to the value of the money, income, property, or credit presently available to the applicant, as well as a determination of the applicant’s level of need for the services and commodities specified in sec. 49.01 (1). If the applicant’s need exceeds the value of his “presently available” assets, relief must be furnished. The amount and kind of relief, however, is up to the discretion of welfare officials.⁵ Thus, the Milwaukee county officials could take into account the value of the applicant’s “presently available” assets in deciding how much relief to provide. But here, rather than factually determining the value of all of the plaintiffs’ assets and the level of plaintiffs’ need, the department refused to provide relief solely because of plaintiffs’ automobile ownership. The department thus failed to perform its statutory obligations. The Sells were entitled to relief despite their automobile ownership, if their level of need exceeded the value of their assets. The department’s policy is inconsistent with the statute which does not require relief recipients to have no assets whatsoever; rather, it only requires the value of the assets to be insufficient to cover the recipient’s need.⁶

This analysis is supported by Outagamie County v. Brooklyn.7 The recipient of emergency medical relief owned a car purchased two years previous for $595. Since there was no evidence that it was presently a salable asset, the court said it could not be counted to determine the recipient’s status as a dependent. However, the court said that even if it were a salable asset, its ownership could not deprive the recipient of dependency status where her need was $1,214. Thus the court indicated that ownership of an asset did not automatically disqualify a relief applicant as a dependent person; the asset’s value must exceed the level of need.

Additionally, the facts in the case at bar closely resemble those in the recent case of State ex rel. Arteaga v. Silverman,⁸ where the Milwaukee county welfare department refused to furnish relief pursuant to a department rule, despite the applicant’s qualification under all statutory criteria. The department rule in Arteaga provided that applicants who were unemployed as a result of voluntary termination of employment, were ineligible for relief. The court held that where the applicant met all statutory requirements, the department had an obligation to furnish relief, despite the applicant’s past conduct.⁹ As in the instant case, the department required relief applicants to satisfy criteria beyond those contained in the statute; the additional requirements were struck down. Here, as in Arteaga, the department should be required to conform to- the statute.

Defendants try to justify their refusal to furnish relief to plaintiffs on two grounds: the presumption of administrative regularity, and sec. 49.06, Stats.

1. Presumption of administrative regularity. Defendants argue that the presumption of administrative regularity compels a conclusion that the department acted properly in denying relief to plaintiffs. In Outagamie County v. Brooklyn ¹⁰ this court held that in the absence of contrary evidence the decision to furnish relief is presumed to have been based on a proper determination of the recipient’s dependency. Arguably the same presumption should attach to a decision to deny relief. However, as the court said in Outagamie County:

. . The presumption is a rebuttable one, and belongs to that category of presumptions which disappear entirely when any evidence is admitted to the contrary of the fact presumed.” ¹¹

Here, defendants’ concessions in the lower court constitute contrary evidence. There is no dispute as to why plaintiffs were denied relief. The decision was based solely on plaintiffs’ refusal to surrender their license plates. The department did not investigate as to whether plaintiffs otherwise qualified, due to its policy that car ownership conclusively establishes nondependency. In light of these concessions, the presumption of administrative regularity disappears. It is only necessary where the court must judge the validity of an administrative decision in the absence of any evidence as to how the decision was made or what factors were considered.

This argument must be rejected for an additional reason. In the lower court defendants stipulated to certain facts and said there was no need for any factual hearing:

“The Court: ... I was asking you whether or not the denial [that plaintiffs are dependents] is based merely on their refusal to assign the title of the car or whether it is based upon facts which might establish that they are not dependents other than that. If there is a factual dispute, then the case has to be set down for a hearing.

“Mr. Pagel: There isn’t any factual dispute.”

The defendants’ attorney cannot be allowed to argue on appeal therefore that because there are insufficient facts in the record, the department’s determination must be presumed valid. Defendants’ attorney bases his case here on the validity of the department’s flat rule against furnishing relief to car owners. His attempt now to invoke the presumption of administrative regularity therefore is improper.

2. See. 49.06, Stats. Defendants attempt to rely on sec. 49.06, to justify their refusal to provide relief to plaintiffs. This contention may be dismissed easily. Sec. 49.06 provides in pertinent part:

“. . . Where persons are not in fact dependent, as defined by this chapter, but who, if they converted their limited holdings, real or personal, would, by reason of a fallen market or by reason of economic or other conditions, be required to suffer a substantial loss, then and in that event such persons shall be permitted, by proper assignments to the county or municipality, to render themselves qualified to receive relief. The county or municipal agency may sell, lease or transfer the property, or defend and prosecute all actions concerning it, and pay all just claims against it, and do all other things necessary for the protection, preservation and management of the property.”

This section gives welfare officials discretion to require relief applicants to assign property to the department where immediate sale would produce “substantial loss” to the applicant. However, defendants’ reliance on this section is misplaced because sec. 49.06, Stats., does not even apply unless relief applicants have first been found “not in fact dependent.” Thus the section cannot be considered authority for a department policy that tries to circumvent the very need for this factual determination.

We therefore reverse the order of the lower court and remand in order that the lower court can issue a writ of mandamus compelling Milwaukee county department of public welfare to determine plaintiffs’ dependency in fact within the meaning of sec. 49.01 (4), Stats., and to furnish relief to plaintiffs if they so qualify.

By the Court. — Order reversed and cause remanded for further proceedings not inconsistent with this opinion.

1 See State ex rel. Arteaga v. Silverman (1972), 56 Wis. 2d 110, 115, note 3, 201 N. W. 2d 538.

2 Id. at page 116.

3 (1935), 218 Wis. 224, 228, 260 N. W. 473.

4 (1972), 56 Wis. 2d 110, 115, 116, 201 N. W. 2d 538. In this case the court held that the Milwaukee county welfare department could not refuse to furnish relief to a person who met all the statutory requirements, merely because he had voluntarily quit his last job.

5 Sec. 49.01 (1), Stats., provides in part: “The relief furnished, whether by money or otherwise, shall he at such times and in such amounts, as will in the discretion of the relief official or agency meet the needs of the recipient and protect the public.”

6 Under older Wisconsin law the statute required officials to furnish relief to “poor persons” in need without specifying how the determination was to he made. Relief officials thus had great discretion, and the court held at least in nonemergency situations that relief could be refused where the person had any salable assets at all. Rhine v. Sheboygan (1892), 82 Wis. 352, 354, 52 N. W. 444. See Annot. (1935), 98 A. L. R. 870. Status as “poor person” (discussion of Wisconsin cases at pages 880, 881). However, ch. 49, Stats., was completely revamped by ch. 585, Laws of 1945, and under the new sec. 49.01 officials no longer have such discretion. The possession of any salable assets can no longer be considered an absolute bar to receiving relief; the assets’ value must exceed the level of need.

7 (1962), 18 Wis. 2d 303, 314, 118 N. W. 2d 201.

8 (1972), 56 Wis. 2d 110, 201 N. W. 2d 538.

9 The court indicated, however, that a pattern of voluntary terminations which might amount to a violation of sec. 49.002, Stats., could be a sufficient reason for refusal to provide relief.

10 (1962), 18 Wis. 2d 303, 313, 118 N. W. 2d 201. This case involved a suit for reimbursement under sec. 49.11, Stats., brought by the plaintiff county which paid emergency medical expenses of a person with legal settlement in the defendant county. Defendant denied liability on the ground that plaintiff had improperly determined the relief recipient to be a dependent. The court held that since defendant produced no contrary evidence, the plaintiff’s determination was presumptively valid.

11 Id.