In a landmark welfare case, the chief justice charts a tricky course between constitutional rights and legislative decision.

      The Supreme Court last week issued three opinions on whether the Constitution guarantees a right to maintain minimal subsistence.
      The four-justices majority in Moore vs. Ganim upheld the status quo, declaring no such right exists. Dissenting Justices Robert I. Berdon and Joette Katz went the opposite direction, finding a governmental obligation to provide for the poor.
      But the courts leading scholar—Justice Chief Ellen A. Peters---served up the most surprises in a strongly worded concurrence that makes the case not only for a right to subsistence but for recognition of unremunerated rights during challenging times.
      “Contrary to the view of the majority, I am persuaded that the Connecticut constitution includes a governmental obligation to provide a minimal safety net to our poorest residents,” Peters writes in her concurrence.
      Still Peters joined the majority in upholding the welfare statute at issue, saying the Legislature has wide discretion in defining the way government carries out its responsibility.
      The minimum subsistence levels at issue in Moore vs. Ganim and a companion case, Hilton vs. New Haven, were welfare payments and shelter, respectively. The plaintiffs in Moore challenged a state law that allowed municipalities to cut off general-assistance payments after nine months. Hilton plaintiffs sued New Haven over its decision to close a homeless shelter.
      Justice Flemming L. Norcott wrote the majority opinions in both cases. Joining him were justices David M. Borden, Robert J. Callahan and Richard N. Palmer. The majority found no court precedent for an implicit right to subsistence in Connecticut, federal or sister state courts. It also rejected the crux of the plaintiff’s argument, that the right is rooted in centuries of Connecticut history and in the text of the state Constitution itself.
      Although she is disappointed with the outcome, Amy Eppler-Epstein, plaintiffs’ lawyer in Hilton, says Peters’ opinion offers some hope. On the constitutional question, at least, the decision becomes 4-3 rather than 5-2 says Eppler-Epstein, of the New Haven Legal Assistance Association.
      “Anything she writes is bound to have influence,” says Martin B. Margulies, constitution law professor at Quinnipiac College School of Law.
      All parties expected Peters to play a critical role due to the interest she showed in the case. “ We thought she was kind of a moving force in it,” says Arthur C. Laske III, a Bridgeport City Attorney who successfully argued Moore vs. Ganim.
      Laske says Peters’ finding on unemnumerated rights—particularly her willingness to find an affirmative governmental obligation to take care of poor people—is significant. He says it could open the door to claims seeking to establish other government obligations.
      At the same time, Laske says, the decision keeps welfare reform right where it belongs: in the Legislature. “I thought it would have been kind of a stretch for the court” to find a constitutional right to subsistence, he says.
      The ruling comes as legislative welfare reform efforts intensify in Connecticut and throughout the country. This year, the Legislature cut welfare benefits further, reducing monthly payments and limiting their duration, availability and the possibility of extensions.
      Attorney General Richard Bluementhal, who represented the state in both cases, says: “I’m very pleased with the decision because it vindicates no only our legal position but also welfare reform efforts that are so critical to the state and nation.”
      But Steven R. Burg, an attorney with Connecticut Legal Services in Bridgeport who represented the Moore plaintiffs think Peters’ reasoning on the right to subsistence “will carry persuasive power in the legislature.”

Nine months and you’re out
      Both cases came to the court through expedited appeals.
      The Moore plaintiffs were Bridgeport residents affected by a 1992 state law that allowed the city welfare department to cut them off from general assistance after nine months. That means they received no cash payments but continued to get food stamps and medical benefits. Their ineligibility lasted for three months, after which time they could reapply.
      General assistance, funded mainly by the state and administered by the towns, is the welfare program for able bodied adults. It’s separate from the much larger Aid to Families with Dependant Children Program, the target of this years legislative cuts.
      The 1992 law sprang from an interagency task force setup by then Gov. Lowell P. Weiker Jr. to improve the welfare system. Its purpose, as stated during trial testimony, was to turn welfare into a more temporary program by providing people with incentives to find employment.
      Previously, state law set no time limit on benefits. The 1992 law gives towns and cities options to extend payments. The state pays 80% of benefits and the towns pick up the rest.
      Bridgeport began enforcing the nine month deadline in March 1994, and five plaintiffs sued the city and its mayor, Joseph D. Ganim.
      Superior Court Judge Christine F. Vertefeuille granted a temporary restraining order, after which the state successfully intervened as a defendant. Following a hearing at which witnesses testified that they would no be able to afford housing without state support, Vertefeuille denied a request for permanent injunction. She found that the plaintiffs failed to prove a likelihood of success on their claim that the state has a constitutional obligation to provide subsistence benefits.
      The Hilton action dates to 1989, when New Haven decided to shut down an emergency homeless shelter that provided additional housing when other city shelters were full. After several homeless people sued, then New Haven Superior Court Judge Anthony DeMayo ordered the city to develop a long term plan for housing homeless people.
For two and a half years, the court rejected the city’s proposals. Then in 1992 the city asked DeMayo to reconsider his order in light of a new general assistance statute---which, in addition to establishing the nine month welfare limit, also narrowed the obligation of towns and cities to provide emergency shelter.
      The plaintiff’s argued that the law violated their fundamental right to shelter under the constitution. DeMayo rejected that contention and the plaintiff’s appealed.

In Search of Implicit Rights
      As novel as the claims were, the Supreme Court gave them serious consideration, consolidating the cases and holding two en banc sessions of argument last year. In certain ways, the cases pose familiar questions: Does a constitutional right exist when it isn’t specified in the document itself? Does the constitution change with time? Can the framers’ intent be determined with certainty, and if so, how much certainty is needed?
      The difference between Peters’ concurrence and Norcott’s majority opinion highlight the varied perspectives on those questions.
      The plaintiff’s argued that the authority for a constitutional right dates before the 1818 Connecticut Constitution, when several statutes mandated that municipalities care for poor people. The constitution incorporated those statutorily defined rights the plaintiffs contended.
      They look to the constitution’s preamble, which states as its purpose: “more effectually to define, secure and perpetuate the liberties, rights and priveledges which[ the people] have derived from their ancestors.”
The plaintiffs also cited Article First, § 1, which states: “All men, when they form a social compact, are equal in rights….”
      Berdon, in dissent, finds clear support for a right to subsistence in both provisions. But, like Peters, he finds the state can set reasonable conditions on carrying out its obligations.
      Much of the debate within the court was over how to determine when an implicit right exists. Norcott limits unenumerated rights to those that relate in the due process guarentee, such as the rights against cruel and unusual punishment and against double jeopardy. Neither is enumerated, but both are constitutional rights.
      Peters disagrees with Norcott’s limits. She says protections against cruel and unusual punishments and double jeopardy became due process rights only in the 2nd half of the 20th century. The cases that recognized those rights neither include nor exclude additional unenumerated rights—whether they arise from due process guarantees or other constitutional provisions—she reasons.
      “Instead, the case law in this state has subscribed to a broader proposition—that the framers did not intend our written constitution to be an all encompassing exhaustive enumeration of individual rights,” Peters writes.
      Peters calls for more openness to unenumerated rights based on the state’s “unique constitutional history,” demonstrated by the fact that Connecticut was among the last of colonies to adopt a constitution. Peters contends that the framework of the government was already in place before 1818, and therefore the need for a constitution to formalize rights was not as pressing. In addition, Peters looks for support to the theory, espoused by the US supreme Court as early as McCullough vs. Maryland in 1819, that a constitution endures for ages and must adapt to changing times.
Affirmative Obligations
      A second difference between Norcott and the chief justice is that Norcott distinguishes between a right that imposes an affirmative governmental obligation an a right that protects people from government interference.
      “We are especially hesitant to read into the constitution unenumerated governmental obligations,” Norcott writes. “In general, the declaration of rights in our state constitution was implemented not to impose affirmative obligations on the government, but rather to secure individual liberties against direct infringement through state action.”
      Any so-called affirmative obligations are clearly enumerated, as, for instance, the right to public education and the right to be free of discrimination, Norcott writes. But no constitutional amendment gives special protections to the indigent, he notes. “Such omissions suggest that the framers of our state constitution did not intend to constitutionalize Connecticut’s policy of supporting it’s indigent.”
      Again, Peters disagrees. When the 1965 constitutional convention added a second on the right to education, it was merely making explicit what had been implicit in the 1818 document, she writes. The 1965 delegates could have enumerated other implicit rights as well, she says.
      “The 1965 reenactment of the 1818 constitution, with only minor changes, therefore, must be read to preserve the earlier framers’ understanding that the constitution was not all inclusive document,” Peters writes.
More important, Peters writes, under the theory that the constitution adapts itself to changing times, affirmative rights are as important as negative rights…

      …But Blumenthal and Laske, the Bridgeport Assistant attorney say a decision in the plaintiff’s favor would deluge the court system with questions over every minute issue. “The court would really have to micro-manage welfare,” Laske says.
      Peters addresses that question in her concurrence, stating that she would allow court intevention only in extreme cases, where severe deprivation would occur.
      Although Peters’ standard isn’t law, court action weighs heavily on the minds of lawyers who see new welfare cuts as having harsh effects on poor people, including children. Solomon says a challenge is afoot to fend off new measures scheduled to take effect in July.
      “Welfare reform is going to be litigated,” Solomon says. “That’s a promise.”