Trаcy HODGE, et al., etc. v. Leon GINSBERG, Commr., W.Va. Dept. of Welfare.
No. 15776.
Supreme Court of Appeals of West Virginia.
Jan. 27, 1983.
303 S.E.2d 245
Dissenting Opinion Jan. 28, 1983.
Chauncey H. Browning, Atty. Gen., Mary Beth Kershner and Joanna Bowls-Vickers,
MCGRAW, Chief Justice:
This is an original proceeding in mandamus. The petitioners are six homeless residents of the City of Charleston.1 The respondent is Leon Ginsberg, Commissioner of the West Virginia Department of Welfare. The petitioners seek to compel the respondent to provide adult protective services to incapacitated individuals such as themselves and others similarly situated. We find that the petitioners are entitled to such relief, and grant the writ.
The individual petitioners are all persons within the state of West Virginia who lack the means to maintain a permanent residence, and who therefore are often forced to spend their days and nights on public streets, alleys, riverbanks, and other various outdoor locations. The petitioners claim that the Commissioner of the Department of Welfare has a statutory and constitutional duty to provide emergency shelter to enable them and similarly situated persons tо adequately sustain life and reasonable health.
The petitioners statutory claim is based upon the provisions of
The department may develop a plan for a comprehensive system of adult protective services including social case work, medical and psychiatric services, home care, day care, counseling, research and others.
It shall offer such services as are available and appropriate in the circumstances to persons who, other than for compensation, have or intend to have the actual, physical custody and control of an incapacitated adult and to such incapacitated adults or to adults who may request and be entitled to such protective services ....
An “incapacitated adult” is defined by the Act as “any person who by reason of physical, mental or other infirmity is unable to independently carry on the daily activities of life necessary to sustaining life and reasonable health.”
We note initially that if the petitioners are members of the class which the Social Services For Adults Act is designed to benefit, they possess a constitutional right to the relief which they seek under
The respondent advances two principal arguments in opposition to the petitioners’ claim for relief. First, the respondent contends that the petitioners are not “incapacitated adults” within the meaning of the Act. In this regard the respondent argues that the Act is in derogation of the common law, and therefore should be strictly construed against the petitioners. Second, the respondent contеnds that the provision of protective services under the Act is discretionary, precluding relief by mandamus. We find no merit in these contentions.
The Department of Welfare is a creation of the Legislature, and has as its express purpose the provision of welfare assistance programs “to the end that residents of the State who are subject to the recurring misfortunes of life may continue to have such aid and encouragement as the county alone, the State alone or the State in cooperation with the federal government may provide.”
One of the primary goals of the Department of Welfare is to provide aid tо indigent persons. An “indigent person” is “any person who is domiciled in this State and who is actually in need as defined by department rules and regulations and has not sufficient income or other resources to provide for such need as determined by the department.”
On April 11, 1981, the Legislature amended chapter nine of the West Virginia Code by adding thereto a new article. See 1981 W.Va.Acts ch. 215. The amendment authorized the Department of Welfare to provide social services for adults; established a comprehensive protective service system; and provided for the promulgation of rules and regulations allowing for payment of services to incapacitated persons as defined in the amendment. Id. The amendment is now found at
In accordance with the Legislature‘s directions, see
W.Va.Dept. of Welfare, Social Services Manual, Reg. 29010C.
The regulations further indicate that valid reasons for providing adult protective services include circumstances where “[t]he individual has been evicted or has inadequate or unsafe housing,” or where “[t]he individual has been deprived of adequate food or shelter ....” W.Va.Dept. of Welfare, Social Services Manual, Reg. 29100. Adult protective service clients are defined by the regulations as persons meeting the following criteria:
- The client will have a serious impairment in physical or mental functioning....
- The client is functionally disabled in regard to activities of daily living....
- The client must be 18 years or older and must reside in the community rather than in an institution or nursing home....
- The client is alone or without a family member, friend or interested party able and willing to provide the necessary support to alleviate the presenting problem.
- The client is in dаnger of being harmed (through action or inaction by another individual or through his own actions) without intervention at this time. A client may meet the first four characteristics and still manage to function for quite some time. However, in order to classify a case as protective, a precipitating factor (a medical, psychiatric, or social emergency) must exist. If intervention does not occur at this time, serious consequences (death, physical or mental injury, neglect or maltreatment, failure to receivе adequate food, shelter or clothing, deprivation of entitlements, wasting of resources, loss of property or funds, inappropriate relocation) will result.
W.Va.Dept. of Welfare, Social Services Manual, Reg. 29020 (emphasis in original).
The respondent contends that the petitioners are not qualified to receive adult protective services because they do not suffer from physical or mental infirmities as required by the department‘s regulations. The petitioners, on the other hand, argue that the regulations are unduly restrictive and do not comply with the law enacted by the Legislature.
The Social Services For Adults Act defines “incapacitated adult” as “any person who by reason of physical, mental or other infirmity is unable to independently carry on the daily activities of life necessary to sustaining life and reasonable health.”
Webster‘s Third New International Dictionary (1970) defines “infirmity” as “the quality or state of being infirm“; “an unsound unhealthy or debilitated state“; “a defect of personality or weakness of the will.” “Infirm” is defined as “not strong or sound physically“; “of poor or deteriorated vitality especially as a result of age“; “weak of mind, will or character“; “not solid or stable.” It is clear from these commonly accepted definitions that the term “infirmity” contained in
Contrary to the respondent‘s representations, the Social Services For Adults Act is clearly remedial legislation which should be construed to achieve its beneficial purposes. See, e.g., Gibson v. Rutledge, 171 W.Va. 164, 298 S.E.2d 137 (1982); Andy Bros. Tire Co., Inc. v. West Virginia State Tax Comm‘r, 160 W.Va. 144, 233 S.E.2d 134 (1977). The purpose of the Department of Welfare is to provide aid and encouragement to the “residents of the State who are subject to the recurring misfortunes of life ....”
While it is true that the interpretation of a statute by the agency charged with its administration should ordinarily be afforded deference, see, e.g., Security National Bank and Trust Co. v. First West Virginia Bancorp, Inc., 166 W.Va. 775, 277 S.E.2d 613 (1981), when that interpretation is unduly restrictive and in conflict with the legislative intent, the agency‘s interpretation is inapplicable. See, e.g., Harrison v. Ginsberg, 169 W.Va. 162, 286 S.E.2d 276 (1982); see also Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971).
We therefore conclude that the term “incapacitated adult” contained in
The respondent‘s remaining contention is that the provision of adult protective services pursuant to the Social Services For Adults Act is discretionary with the Department of Welfare, and therefore mandamus is an inappropriate rеmedy. In support of his contention the respondent cites the language of
The respondent further argues that the language of
However, the respondent has exercised his discretion in the promulgation of regulations found at Chapter 29 of the Department of Welfare‘s Social Services Manual. These regulations еstablish the duty of the department to provide assistance to incapacitated adults who are the victims of neglect, abuse, or exploitation. See W.Va. Dept. of Welfare, Social Services Manual, Regs. 29010; 29100; 29120. The Commissioner therefore has a duty to provide assistance to those petitioners who meet these criteria. The assistance provided must be such as “will meet the individual‘s needs with the least necessary restrictions on his liberty and civil rights.” W.Va. Dept. of Welfare, Social Services Manual, Rеg. 29120.
The petitioners are individuals who are unable to provide for themselves adequate shelter necessary to sustain life and reasonable health. They seek adult protective services in the form of shelter, food and medical care as incapacitated adults from the Department of Welfare. The lack of shelter, food and medical care which poses a substantial and immediate risk of death or serious permanent injury to an incapacitated adult is a valid reason for intеrvention by the Department of Welfare through the provision of adult protective services.
Accordingly, we grant the writ of mandamus directing the Commissioner of the Department of Welfare to provide emergency shelter, food and medical care to the petitioners and other similarly situated persons as required by
Writ granted.
NEELY, Justice, dissenting:
We are asked by the petitioners to dream. We are asked to dream of shelter and safety, food and care, for the homeless of our state. Of a community in which despair is met with succor, and discomfort is relieved. We remember: “The republic is a dream. Nothing happens unless first a dream.”1 We believe that the government men weave, though warped with reality, must be woofed with dreams. As men, we share this dream.
As a court, however, we are translators of dreams into reality, and we are limited to our constitutional role. It is not enough that we, like all men, dream. We must knit the dreams we are asked to dream into the complex fabric of experience, history, consequence, and other dreams that is the law. The majority opinion, though woofed with dreams, is warped with folly, and to this warp I dissent.
Having stipulated the dream, let us now examine the folly. The majority opinion, apart from standing in a general way for the proposition that homelessness is a bad thing, is nearly entirely without meaning. A writ of mandamus is issued to the Commissioner of the Department of Welfare directing that “the petitioners and other similarly situated persons” be provided “emergency shelter, food and medical
I also disagree with the majority concerning their reading of the statute, but I weary of explaining that a selection of words from a statute does not, merely because the words come from that statute, necessarily embody the statute‘s meaning. I therefore resort to illustration. To wit, the 4th Amendment to the United States Constitution plainly states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall ... cause ... the persons or things to be seized.” Or better yet: “The right ... people ... shall ... be violated ... upon ... persons or things to be seized.” Through the magic of ellipsis, great mischief can be accomplished, and the threat of that great mischief should make us wary—even where, as here, the mischief is less great—of the deliberate misreading of statutes as a means of accomplishing even the most charitable of our dreams.
Most readers of the “Social Services for Adults” statute,
The Department of Welfare‘s records reveal that the original petitioners either misrepresented that they had beеn denied assistance by the Department of Welfare or else had failed to obtain such assistance by the simple expedient of not applying for it. The “controversy” was restored when a new crop of petitioner-intervenors were allowed to intervene two working days before the oral argument, several of whom allege that they are homeless as a result of the Department of Welfare‘s refusing to assist them. Although these allegations may be true, and establish a “controversy,” they do not establish with any particularity the class of people for whom the Commissioner is required to provide housing. Does it include people in certain income brackets only? Does it include those with sufficient income to pay rent who prefer to spend their income on alcohol? Does it include those who simply don‘t like the shelters currently run by charitable organizations? Should the opinion be read to eradicate any distinction between temporary and permanent housing? Is the current Emergency Assistance рrogram run by the Department of Welfare, which provides temporary shelter, swallowed by the new program, which appears to contemplate permanent housing for anyone unwilling or unable to pay rent? Can anyone be turned down?
The Commissioner of the Department of Welfare is no doubt as concerned with the answers to those questions as I am, yet we receive no guidance from the majority.
A similar analysis applies to the question of what is to be done for this class, assuming that it can be defined. What are the standards of care? What are the State‘s liabilities? For how long must peoрle be housed? Where may they be housed? Where are shelters to be established? How far may people be moved to a shelter? What if they are reluctant to move? The fictions that the Court has entertained in order to avail itself of this opportunity for moral self-congratulation prevent the Court from providing answers to these and other vital questions. As with the scope of the class, the duty to house the homeless is considered non-discretionary, so the Department of Welfare must already know what to dо.
Since we are not a legislature, and have no spending authority, we cannot pay for whatever reforms it is we have required. The costs must be paid from the Department of Welfare‘s own budget. The noble lustre of the Court‘s heroic decision is slightly tarnished, to my mind, by the fact that we ourselves do not shoulder the burden of this wondrous reform; rather we have dropped it on the backs of the traditional clients of the Department of Welfare—the children, aged, blind, and disabled of our state.
The moral of the story is that it is not enоugh for us merely to emote on issues. We are judges, and are given the respect and the salaries that come with the job, in order to, with patience (at least) and wisdom (at best), craft sensible and realistic solutions to the problems it is incumbent upon us to solve. I am not convinced that it is incumbent upon us to solve this problem, at least as formulated, and I am absolutely convinced that the sense and realism of the majority opinion are entirely inadequate.
Notes
The Association for Retarded Citizens in Kanawha and Putnam Counties, Inc., is a non-profit advocacy group established for the suppоrt of retarded citizens in Kanawha and Putnam counties. One of its prime functions is to develop services for its client population which includes a number of homeless individuals. The Coalition on Alternative Residential Emergency Shelter is a voluntary organization concerned about the plight of the homeless, for whom it has and is actively seeking adequate emergency shelter. Community Kitchen, Inc., is an organization which provides daily meals to the poor. Romero House, Inc., is a Catholic worker house of hospitality which offers overnight lodging to persons needing it. Carl Sandburg, Washington Monument by Night (1922)
(1) Achieving or maintaining self-sufficiency and self-support,
(2) Preventing, reducing, and eliminating dependency on the State,
(3) Preventing, reducing, and eliminating neglect, abuse, and exploitation of adults who are unable to protect their own interests,
(4) Preventing and reducing institutional care by providing less intensive forms of care, preferably in the home,
(5) Referring and admitting adults to institutional care only where other available services are inappropriate, and
(6) Providing services and monitoring to adults in institutions designed to assist adults in returning to community settings.