OPENING BRIEF:

Law Offices of James E. Bame

James E. Bame            Bar # 204617

22930 Crenshaw Boulevard, Ste. C

PO Box 4107

Torrance, CA 90510-4107

(310) 293-0649 Office

(310) 377-7912 Fax

 

Attorney for Plaintiffs

Terry Anderson and Hal Netkin

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

 

FOR THE COUNTY OF LOS ANGELES

 

Terry Anderson, an individual, and                           Hal Netkin, an individual    Plaintiffs,                                                                                                     vs.                                                                                                                           Thomas L. Garthwaite, M.D.,               Director and Chief Medical Officer,             Department of Health Services for                    the County of Los Angeles,                            individually and in his official capacity,            and John Does 1-10                                                                                                                                                     Respondents                ____________________________________________________

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PLAINTIFFS' BRIEF     Case No.: BS 086042

                             

 

            NOW COMES PLAINTIFFS TERRY ANDERSON AND HAL NETKIN and offers the following brief for consideration by the Court:

 

I. STATEMENT OF THE CASE

Terry Anderson and Hal Netkin ("Plaintiffs") filed suit against Thomas L Garthwaite and John Does 1-10 (Respondents) on October 1, 2003.  The Petition alleged a cause of action under California Code of Civil Procedure § 526a and asked the Court to issue a Write of Mandate that will compel Respondents to seek reimbursement of means-tested public benefits from individuals who sponsor certain immigrants.[1]

Respondents have supervisory control of the Department of Health Services for Los Angeles County ("DHS").  DHS administers health care services to immigrants, among others.  In the course of administering health care services, Respondents provide means-tested public benefits to or on behalf of immigrants whose sponsors are legally obligated to reimburse any Federal, State, or local governmental agency or private entity for those benefits.

That obligation is created when the sponsors of immigrants execute INS Form I-864, which is also called an Affidavit of Support.  The Affidavit of Support is a legally enforceable instrument that does two things.  First, it obligates the sponsor to support the sponsored immigrant if the sponsored immigrant cannot support himself.  Second, it obligates the sponsor to reimburse any entity that pays any means-tested public benefit to or on behalf of the sponsored immigrant.   

In the Affidavit of Support, the sponsor states conspicuously:

"I understand that the sponsored immigrant(s), or any Federal, State, local, or private entity that pays any means-tested benefit to or on behalf of the sponsored immigrant(s), are entitled to sue me if I fail to meet my obligations under this affidavit of support"

 

and:

 

"I acknowledge that a plaintiff may seek specific performance of my support obligation. Furthermore, any money judgment against me based on this affidavit of support may be collected through the use of a judgment lien under 28 U.S.C 3201, a writ of execution under 28 U.S.C 3203, a judicial installment payment order under 28 U.S.C 3204, garnishment under 28 U.S.C 3205, or through the use of any corresponding remedy under State law. I may also be held liable for costs of collection, including attorney fees."

 

The Affidavit of Support also informs the sponsor:

"If the sponsor fails to honor the request for reimbursement, the agency may sue the sponsor in any U.S. District Court or any State court with jurisdiction of civil actions for breach of contract."

            Non-emergency medical assistance is a means-tested public benefit.

Records maintained by the county of Los Angeles show that for fiscal year 2001 - 2002, a total of 2,574 patients were treated at county hospitals who were immigrants, who were provided in-patient services by Respondents, who did not have third-party insurance coverage, and who did not have to pay for services. 

Their in-patient status, lack of third-party insurance and non-payment for services indicate that the some or all of these immigrants received non-emergency medical assistance, among other means-tested public benefits.  Indeed, because doctors are ethically required to always render all the medical care their patient reasonably requires, and not just that which is emergent, no other conclusion is reasonable.  Moreover, since DHS records show that in-patients account for the consumption of only a small fraction of DHS-provided public benefits, it can be assumed that Respondents provided many more immigrant out-patients with means-tested public benefits like non-emergency medical assistance, without seeking reimbursement as mandated by federal and state law.

Upon information and belief, Respondents have never sought, and do not seek, reimbursement for means-tested public benefits mandated by federal and state law.

Upon information and belief, Respondents continue to the to pay means-tested public benefits such as non-emergency medical assistance to or on behalf of immigrants while the support of those immigrants is the subject of an Affidavit of Support and their sponsors are obligated to reimburse the cost of those benefits.

At the moment a means-tested public benefit such as non-emergency medical assistance is conferred upon a sponsored immigrant, that immigrant's sponsor becomes obligated to reimburse the full value of the benefit to the entity that paid it.

In addition to relying on the taxpayers of Los Angeles County to pay for some of the costs of means-tested public benefits provided, the DHS also receives funding from state and federal sources.  Since Respondents make no effort to determine immigrant sponsor liability, Respondents are preventing other authorities from fulfilling the legal obligations they have.  The State Controller is mandated by statute to recover money due the State, including the cost of means-tested public benefits paid to or on behalf of sponsored immigrants.

Determining sponsor liability would in no way prevent Respondents from disbursing benefits, but it would enable Respondents to meet the duty of public officials and collect monies due, and at last enable the Controller, or others, to meet similar and/or statutorily mandated duties.  The Controller would have the information needed to request of immigrant sponsors reimbursement for non-emergency medical assistance and other means-tested public benefits.   

Given the more than $ 700 million deficit DHS projects it will accrue by July 1, 2005, there is now a compelling need for Respondent to meet the legal duty imposed upon public officials: Respondents seek reimbursement of those benefits from those immigrants' sponsors, and communicate to the Controller and other appropriate authorities the identities of those sponsors and amounts of means-tested public benefits paid so that the Controller can meet its statutory duty of recovering the cost of those benefits.    

II. ISSUES

           

A.       RESPONDENTS OFFER MEANS-TESTED PUBLIC BENEFITS TO IMMIGRANTS.

 

            Respondents offer means-tested public benefits to immigrants.  Respondents' own website contains the following notice:

 

Important Notice for Immigrants

 

YOU CAN GET NEEDED MEDICAL CARE AT NO COST OR AT LOW COST.  To get it, you must be unable to pay the full cost of your medical care.[2]

 

The notice is explicitly directed at immigrants.  The plain meaning of "You can get needed medical care at no cost or extra cost" is that the DHS offers assistance with medical costs, which can take the form of non-emergency medical assistance, a public benefit. The plain meaning of "To get it, you must be unable to pay the full cost of your medical care" is that the medical assistance offered through DHS is means-tested. 

Non-emergency medical assistance is a means-tested public benefit. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (1996) (codified in scattered sections of 42 U.S.C. and 8 U.S.C.)   

 

B.      PLAINTIFF'S STANDING AND THEIR BURDEN IN THIS ACTION.

 

California Code of Civil Procedure § 526a permits a citizen to commence an action to enjoin the illegal expenditure or waste of public funds.  The statute provides, in relevant part, "An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to . . . funds or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf either by a citizen resident therein . . ."

Preliminarily, plaintiffs are citizen residents of this jurisdiction.  Plaintiffs do not contend that they have a legal or special interest in the positive result of their lawsuit (other than the decreased likelihood of higher taxes or diminished services in their futures), nor must they as the law does not require it when, as here, the issue litigated is one of public right and the object is to procure the enforcement of a public duty (Connerly v. State Personnel Bd. Cal. App. 4th 16, 112 Cal. Rptr. 2d 5, 92  (2001)). 

While it is true that general allegations, innuendo, and legal conclusions are not sufficient to support an action under Section 526a and the prevailing plaintiff must cite specific facts and reasons for a belief that some injury to public funds is occurring or will occur (Waste Management of Alameda County, Inc. v. County of Alameda, 79 Cal. App. 4th 1223, 94 Cal. Rptr .2d 740, (2000)), plaintiffs easily meet this burden, as set forth below.

C.  RESPONDENTS' WILLFUL FAILURE TO ASCERTAIN THE IDENTITIES OF IMMIGRANT SPONSORS VIOLATES CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 526a AND PREVENTS THE CONTROLLER FROM CARRYING OUT ITS STATUTORILY MANDATED DUTY

 

In giving citizens such as plaintiffs the right to commence an action to restrain the illegal expenditure or waste of public funds, California Code of Civil Procedure Section 526a simultaneously imposes a duty on public officials to avoid the illegal expenditure and waste of such funds.  To that extent, it is more than a mere rule of procedure; it affords plaintiffs a substantive cause of action. 

Section 526a does more.  Controlling authority holds that Section 526a not only checks the expenditure and waste of public funds, it imposes an affirmative duty upon public officials to enforce the government's duty to collect funds due the State. Harman v. City and County of San Fransisco, 7 Cal. 3d 150, 101 Cal. Rptr. 880, 496 P. 2d 1248 (1972), Farley v. Cory, 78 Cal. App. 3d 583, 144 Cal. Rptr. 923 (1978), Vasquez v. State of California, 105 Cal. App. 4^th 849, 129 Cal. Rptr. 2d 701 (2003). 

The duty is imposed generally upon public officials, like Respondents.  Thus Respondents have a duty to collect funds due the State.  As set forth at D, infra, Respondent also has a statutory duty under federal law to seek reimbursement of the cost of means-tested public benefits, such as non-emergency medical assistance, from immigrant sponsors.   

The State's Controller is bound by the authority of those courts, but it also has its own explicit statutory duty to collect money to which the State is entitled.  California Government Code § 12418 provides that the Controller shall superintend the collection of all money due the State, and institute suits in its name against persons who by any means have become possessed of public money or property and fail to pay it over or deliver it, and against all debtors of the State.  Through Section 12418, the Legislature has not just commanded that the Controller collect money due the State, it has commanded that the Controller collect all money due the State. 

The State need not take any special steps to perfect its right to a debt before it becomes "money due the State" and a duty to collect that money is triggered.  Even a claim for repairs necessary on a State owned automobile which at the time of damage thereto was being operated by a state officer is a "debt" to the State which the controller is authorized to collect against the officer; first, by demanding payment thereof by the debtor and if collection cannot be affected, referring the matter to the attorney general so that suit may be instituted thereon. 1 Ops. Atty. Gen. 407 (1943).

Here, the money in question is not owed to the State under some common law right of indemnity, as it is in the Attorney General's example above.  It is the subject of a far more concrete and perfected set of rights held by the State: those arising from a legally enforceable written agreement by which the immigrant sponsor actually agrees to be sued in this State's courts for breach of contract if he breaks the agreement. 

While courts have been reticent to rely on Section 526a to enjoin government activity that is discretionary, the conduct complained of herein does not involve the government's discretion.  Respondent, as well as the Controller, have a duty under federal law to seek reimbursement of the costs of means-tested public benefits from immigrant sponsors, and the Controller has a similar duty under state statute.  The duties of both to collect money agreed by contract to be reimbursed the State by immigrant sponsors are positive statutory requirements.  Governmental performance, commanded by statute, is measurable and thus amenable to judicial redress. Lundberg v. County of Alameda, 46 Cal.2d 644, 298 P.2d 1 (1956), Farley, supra.

It is because the cost of non-emergency medical assistance, and other means-tested public benefits, conferred upon sponsored aliens is money due the State that Section 526a imposes a duty on Respondents seek reimbursement of the cost of those benefits.  Were the Respondents to meet their duty under Section 526a, this would take the form of Respondents ascertaining the identities of immigrant patients within the DHS system who consume those benefits, along with the identities of their sponsors.  Respondents would seek reimbursement of the cost of those benefits directly from immigrant sponsors.  Respondents would also communicate the collected information to the Controller, who could then meet its statutory duty of collecting the cost of those benefits.  

D.     NOTWITHSTANDING ANY CONSIDERATIONS OF STATE LAW, RESPONDENTS ARE MANDATED BY FEDERAL LAW TO SEEK REIMBURSEMENT OF AMOUNTS DUE THE STATE UNDER AFFIDAVITS OF SUPPORT.

 

             Congress has plenary power to regulate all immigration to the United States.  The Supreme Court has without exception sustained Congress' plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.  Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (quoting Boutilier v. INS, 386 U.S. 123 (1967)).  Congress' power to regulate immigration extends not just to rules for admission and exclusion, but to rules that permit an alien to maintain legal status while admitted to the United States.  "The formulation of policies [pertaining to the entry of aliens and their right to remain here] is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government."  Galvan v. Press, 347 U.S. 522, 531 (1954).

            Where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.  Hines v Davidowitz, 312 U.S. 52, at 66-67 (1941).

            Congress's regulation of immigration to the United States takes the form of the Immigration and Nationality Act (INA).  It provides: "any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely to become a public charge is inadmissible." 8 U.S.C. § 212(a)(4) (2003). The INA also states that any alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable." 8 U.S.C § 237(a)(5) (2003).

            With Sections 212(a)(4) and 237(a)(5), Congress makes inadmissible those aliens who are likely to become a public charge and makes deportable any alien who has become a public charge within five years of admission.  These laws are entirely consistent with Congress's power to regulate both an alien's becoming admitted and remaining in the United States, which were given the Court's imprimatur in Kleindienst, Galvan and Hines.

            In 1996, Congress reformed the INA.  It maintained the public charge rules of 212(a)(4) and 237(a)(5), but allowed immigrants to overcome their inadmissibility on public charge grounds with the execution of an Affidavit of Support.  8 U.S.C. 1183a.  An alien that might otherwise be deemed a public charge may not be deported on public charge grounds if the obligations of his Affidavit of Support are met.

As a condition of admitting an alien who would ordinarily be inadmissible on public charge grounds, Congress mandated that any means-tested public benefits consumed by such an alien were to be recovered by the entities that conferred them.  At 8 U.S.C. 1183a (b)(1)(A), the INA provides "[u]pon notification that a sponsored alien has received any means-tested benefit, the appropriate nongovernmental entity which provided such benefit or the appropriate entity of the Federal Government, a State, or any political subdivision of a State shall request reimbursement by the sponsor in an amount which is equal to the unreimbursed costs of such benefit."

            Respondents' willful failure to take even the most basic steps to inquire and seek reimbursement under Affidavits of Support both defies Congressional mandate and places immigrants who consume non-emergency medical assistance, and other means-tested public benefits, at risk of deportation on public charge grounds by failing to seek reimbursement of those benefits under Affidavits of Support, and thereby rendering them a public charge.

CONCLUSION

Respondents provide non-emergency medical assistance and other means-tested public benefits to immigrants.  They are mandated by federal statute and by state law to seek reimbursement of the value of those benefits from immigrant sponsors.  Their failure to do so is a violation of state law and federal statute, which prevents the Controller from executing its statutorily mandated duty of collecting money due the State.  Plaintiffs are entitled to an order compelling Respondents to inquire as to the immigration status of patients upon whom DHS confers non-emergency medical assistance and other means-tested benefits, identify immigrant sponsors, seek reimbursement of the cost of those benefits from immigrant sponsors, and transmit the collected information to the Controller.

 

 

 

Dated  July 19^th, 2004                                                        LAW OFFICES OF JAMES E. BAME

 

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