COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
ELIZABETH SMITH and MICHELLE MUISE,
on behalf of themselves
and all others similarly situated,
CLAIRE McINTIRE, in her capacity as
Commissioner of the Department of Transitional
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION
FOR STAY OF JUDGMENT PENDING APPEAL
Plaintiffs Elizabeth Smith and Michelle Muise, two very low-income, working women
with minor children on whose behalf the Court has entered partial summary judgment --
declaring that the defendant is unlawfully denying subsistence benefits to the plaintiffs and
others similarly situated -- respectfully oppose defendant’s Motion for Stay of Judgment
I. DEFENDANT HAS NOT MET HER BURDEN OF JUSTIFYING A STAY
Defendant also asks for entry of partial final judgment or the reservation and report of
the Court’s decision on partial summary judgment. To the extent that such action does not
deprive plaintiffs of their rights to pursue their additional claims under Counts 3 through 5 of the
Complaint, plaintiffs do not oppose this aspect of the defendant’s motion, although they are not
convinced that it is necessary in order for defendant to appeal the April 20 ruling.
Defendant has failed to justify the extreme remedy of a stay pending appeal. As stated
by the Supreme Judicial Court, Rule 62 of the Massachusetts Rules of Civil Procedure, which
provide that judgments are not automatically stayed pending appeal, “prevents the loser from
avoiding the effects of a judgment by appealing the judgment, and thus avoids harm to the
appellee’s rights as well as expenditure of judicial time on relitigation of issues already
decided.” Commonwealth v. 707 Main Corp., 371 Mass. 374, 377-78 n. 2 (1976). Accordingly,
a stay should not be granted pending appeal unless the applicant can show: (1) a strong
likelihood of success on the merits; (2) that he will be irreparably harmed if the stay is not
granted; (3) that the other party will not be irreparably harmed by a stay; and (4) that the public
interest will be served by the stay. J.L. v. Parhham, 412 F. Supp. 141, 142 (M.D. Ga. 1976);
accord Hilton v. Braunskill, 481 U.S. 770, 776 (1986).
A. Plaintiffs Will Be Irreparably Harmed by a Stay.
As set forth in plaintiffs’ affidavits and previously filed Memorandum in Support of
Preliminary Injunction, plaintiffs are trying to survive on the margin of subsistence. Since
January 21, 1999, plaintiff Elizabeth Smith has been trying to survive and support three growing
children on take-home pay of only $650 per month and without the $315 per month of
Transitional Aid to Families with Dependent Children (TAFDC) benefits that have been
terminated unlawfully, according to the Court’s April 20, 1999 decision. Hundreds of other
families are similarly situated and are likewise trying to survive on the margin of subsistence.
Plaintiff Michelle Muise and others similarly situated to her are faced with the imminent
termination of their TAFDC benefits under the defendant’s unlawful policies. 2
The harm arising from the plaintiffs’ loss of TAFDC benefits to supplement their
meager earnings is immediate and irreparable. Without these benefits, plaintiffs and their
children face increased hunger and destitution. They are at risk of homelessness because they
will not be able to pay their rent and related housing expenses. In such a situation,
“irreparability of harm is excruciatingly obvious.” Coalition for Basic Human Needs v. King,
654 F.2d 838, 840-41 (1st Cir. 1981).
It is well-established that reduced ability to pay for basic necessities constitutes
irreparable harm to persons who are already on the "margin of subsistence." Philadelphia
Welfare Rights Organization v. O'Bannon, 525 F. Supp. 1055, 1058-60 (E.D. Pa.
1981)(irreparable injury where plaintiffs lost food stamp benefits averaging $2 to $3 per month);
Banks v. Trainor, 525 F.2d 837, 842 (7th Cir. 1975)("plaintiff class would be irrevocably injured
by the reduction in food stamp benefits"), cert. denied, 424 U.S. 978 (1976); Becker v. Toia, 439
F. Supp. 324, 336 (S.D.N.Y. 1977)(Medicaid co-payment of $.50 to $3.00 [per month] would
force families to forgo daily necessities, causing irreparable injury). See also Chu Drua Cha v.
Noot, 696 F.2d 594 F.2d 594, 599 (8th Cir. 1982)($172 per month reduction in subsistence
benefits constitutes irreparable injury).
As stated by the court in Moore v. Miller, 579 F. Supp. 1188, 1192 (N.D. Ill. 1983), in
which the court preliminarily enjoined the state from counting the earned income tax credit
Defendant orally agreed in open court not to terminate Ms. Muise’s benefits pending
this appeal, but has given no similar assurance with respect to the many other families in the
same position as Ms. Muise who are covered by the pending, unopposed motion for class
as income and thereby reducing benefit levels:
An unjustified decrease in welfare payments could deprive a recipient and the
recipient's family of essential food, clothing, shelter and health care. A
subsequent payment by the state cannot adequately compensate a recipient for
being required to subsist for a period of time in a manner incompatible with
health and well-being. For those in the "grip of poverty," living on the financial
edge, even a small decrease in payments can cause irreparable harm. This court
is unable to hold otherwise.
Here, where the plaintiffs are victims of an unjustified termination of their entire TAFDC grant,
the harm is even more clear.
In an implicit acknowledgment that she cannot prove that plaintiffs will not be
substantially harmed by a stay, defendant does not even attempt to show that plaintiffs will not
be so harmed. For that reason alone, the Motion for Stay should be denied.
B. The Public Interest Will Not Be Served By a Stay.
Against the threat to the plaintiffs' ability to feed, clothe and shelter their children, any
harm claimed by the Commonwealth pales in comparison. See Healey v. Commissioner of
Public Welfare, 414 Mass. 18, 27-28 (1992)(likelihood that preliminary injunction would cause
department to reduce benefits to others or overspend its budget was insufficient to outweigh
irreparable injury faced by welfare recipients if they were even temporarily deprived of child
The only authority defendant cites to the contrary are two decisions -- not of the United
States Supreme Court, as defendant asserts -- but of one justice of that Court sitting as a single
Circuit Justice. See Heckler v. Turner, 468 U.S. 1305 (1984)(Rehnquist, Circuit Justice);
Edelman v. Jordan, 414 U.S. 1301 (1973)(Rehnquist, Circuit Justice). More importantly, those
decisions are readily distinguishable. In Heckler, the stay was granted because of a
congressional amendment to the statute on which the lower court decision was based, 468 U.S.
at 1306, as a result of which, the defendant “was almost certain to prevail on the merits.” Id. at
1309. The Circuit Justice emphasized that he expressed “no opinion on the merits prior to the
effective date” of the statutory change. Id. at 1307.
In Edelman, the Supreme Court had already granted a petition for certiorari raising
serous doubt about the merits of portions of the judgment, particularly in light of a conflict on
the same issue between the lower court decision and a decision from another circuit court.
Against this backdrop, the Circuit Justice was merely applying the same type of standard that
this Court applies in deciding whether to issue a preliminary injunction, namely, a balancing of
the likelihood of success and the irreparability of harm to the parties. Planned Parenthood
League of Massachusetts, Inc. v. Operation Rescue, 406 Mass. 701, 710 (1990)(quoting
Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 616-17 (1980)); Commonwealth v.
Mass. CRINC, 392 Mass. 79, 87-88 (1984). Because the defendant’s likelihood of success in
Heckler and Edelman was so great, this balance was struck in those defendant’s favor. As
explained in Part C below, the defendant’s likelihood of success in this case is extremely small.
Moreover, in Edelman, the Court only stayed the portion of the judgment dealing with
the retroactive payment of money damages, not the portion of the judgment requiring the state to
comply prospectively with the law. The defendant in this case -- with no justification -- seeks to
avoid even prospective compliance with the Court’s ruling, including the reinstatement and
continuation of benefits in conformance with law, pending appeal.
Here, there has been no intervening legislative action that in any way changes the
statutory basis for this Court’s carefully reasoned decision on partial summary judgment, there is
no conflicting authority on the issues decided by the Court, no justice of the Massachusetts
appellate courts has suggested that there is any doubt about the merits of the Court’s decision,
and the requested stay would affect prospective as well as retroactive monetary relief.
Moreover, plaintiffs’ are faced with extreme irreparable harm and defendant’s asserted harm is
only that there will be some delay in denying plaintiffs benefits to which they are otherwise
entitled.3 Hence, the cases cited by defendant do no support her argument for a stay in this case,
and a stay is not in the public interest.
C. Defendant Does Not Have a Strong Likelihood of Success on Appeal.
This Court’s April 20, 1999 decision on partial summary judgment is very carefully
reasoned and fully supported by the law. Defendant cannot show that she has any likelihood of
success -- let alone the “strong likelihood of success” that is required in order to justify a stay.
J.L. v. Parham, 412 F. Supp. at 142.
Defendant’s leading argument that she has a likelihood of success is her assertion that
plaintiffs do not have standing to challenge the regulations. What defendant fails to point out is
that she raised the defense of lack of standing only to the second of the regulations that was
declared invalid by the Court, 106 CMR 203.210(C). Defendant never even raised a standing
defense to plaintiffs’ challenge to 106 CMR 203.210(A), which is the regulation under which
Defendant’s claim of irreparable harm to the state if a stay is not granted is even more
attenuated than was the claim in Healey, given that many non-working families who reached the
2-year time limit at approximately the same time as plaintiffs and requested an extension are
continuing to receive benefits while their requests are being decided and/or appealed through the
administrative hearing process. Moreover, the appropriations for the current fiscal year did not
assume that defendant would enact the regulations at issue in this case which unlawfully deny
working families consideration for an extension. Hence, there is no claim of an insufficient
appropriation in this case.
the plaintiffs and those similarly situated have been denied consideration for an extension.
Hence, the standing argument does not provide a basis for defendant to prevail on the merits
with respect to the majority of the Court’s decision.
Moreover, defendant’s argument on the standing issue is frivolous. Defendant states that
the Court erred because its decision first “discusses the merits and then discusses the issue of
standing.” Defendant’s Motion, p. 5. Particularly because the defendant did not raise standing
as a defense to plaintiffs’ challenge to 106 CMR 203.210(A), the Court’s analysis -- ruling on
the merits of plaintiffs’ challenge prior to ruling on the standing argument -- was entirely proper.
After deciding that 106 CMR 203.210(A) was invalid, on grounds that would be equally
applicable to 106 CMR 203.210(C), the Court properly reached the question of whether
plaintiffs had standing to challenge the second regulation. The answer is clearly in the
affirmative, given that plaintiffs are threatened with an injury within the zone of protection of
the governing statutes. Doe v. The Governor, 381 Mass. 702, 704 (1980); Mass. Ass’n of
Indep. Ins. Agents & Brokers, Inc. v. Comm’r of Ins., 373 Mass. 290, 293 (1977). As stated in
Blum v. Yaretsky, 457 U.S. 991 (1982), standing exists when “the plaintiff shows `that he
personally has suffered some actual or threatened injury as a result of the putatively illegal
conduct of the defendant.’” Id. at 999 (quoting Gladstone Realtors v. Village of Bellwood, 441
U.S. 91, 99 (1979)).4
In Blum, the Court held that plaintiffs did have standing to challenge a policy,
concerning transfers to nursing homes with lower levels of care, which they alleged was
unlawful. Notwithstanding an already entered judgment that the utilization review committees of
the nursing homes could not execute such transfers, plaintiffs had standing to challenge the
power of nursing home administrators to initiate such transfers because they were “subject to the
serious threat that the nursing home administrators will reach similar conclusions and will
themselves initiate patient discharges or transfers without adequate notice or hearings.” Id. at
1000. The plaintiffs had standing, even though no specific threat of a transfer by the nursing
home administrators had been directed to them, id. at 999, because “the threat of
facility-initiated discharges or transfers ... is sufficiently substantial that respondents have
standing to challenge” them. Id. The Court emphasized that, “[i]n light of similar
determinations already made by the committee of physicians chosen by the facilities to make
such assessments, the threat is quite realistic” and “not `imaginary or speculative.’” Id. at
1000-1001 (quoting Younger v. Harris, 401 U.S. 37, 42 (1971)).
As the Court has recognized, plaintiffs are threatened with injury by the defendant’s
policy of denying earnings disregards to families receiving an extension, particularly because
those families have prevailed on their challenge to 106 CMR 203.210(A), the policy which
denied them consideration for an extension. Moreover, even in the absence of 106 CMR
203.210(A), plaintiffs would be rendered ineligible for any extension benefits solely by
operation of the post-extension denial of the disregards in 106 CMR 203.210(C). The threat to
plaintiffs from this regulation is therefore “quite realistic.” Here, plaintiffs are directly
threatened with injury as a result of defendant’s unlawful regulation. Both 106 CMR
203.210(A) and 203.210(C), separately and together, render the plaintiffs financially ineligible
for extended benefits. Unless plaintiffs are allowed to challenge 203.210(C), any relief they
obtain as a result of any injunction of 203.210(A) will be meaningless. As in Town of Holden
v. Division of Water Pollution Control, 6 Mass. App. Ct. 423, 427 (1978), “[t]hese spectres are
not ephemeral, and create [for plaintiffs] enough of an interest, even though once removed at
this time, to warrant” the conclusion that plaintiffs have standing to challenge 106 CMR
As the Blum Court noted, “[o]ne does not have to await the consummation of threatened
injury to obtain preventive relief.’” Id. at 1000 (quoting Poe v. Ullman, 367 U.S. 497, 504
(1961)). See also Chase Photographic Laboratories, Inc. v. Hennessey, 327 Mass. 137, 139
(1959)(“the plaintiff [is] not required to postpone the bringing of its bill until such damage had
actually been wrought”).
An actual controversy exists between plaintiffs and the defendant as to the legality of 106
CMR 203.210(C) because there is “a `real dispute’ caused by the assertion of one party of a
duty, right, or other legal relation in which [s]he ha[s] a `definite interest,’ in circumstances
indicating that failure to resolve the conflict will almost inevitably lead to litigation.” District
Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 659 (1980)(quoted in Colby v.
Commissioner of Public Welfare, 18 Mass. App. Ct. 767, 773 (1984)). Under these
circumstances, “[a]n actual controversy can exist whether or not the plaintiff’s rights have
already been impaired.” Id. Where, as here, “the question of the validity of the department’s ...
policy is of public importance and the issue has been fully briefed,” “the plaintiffs should not be
required to await a denial of eligibility from the department before obtaining declaratory relief.”
Colby, 18 Mass. App. Ct. at 774. Plaintiffs therefore have standing to challenge both 106 CMR
203.210(A) -- the special test of financial eligibility -- and 106 CMR 203.210(C) -- the
post-extension denial of the disregards. The defendant does not have a likelihood of success on
its appeal of the Court’s decision as to standing.
Defendant’s second argument for likelihood of success is equally weak. Defendant
argues that, because the Legislature gave her some discretion as to whether or not to grant an
extension of time limited benefits, her discretion is therefore unbridled and that there are no
legislative standards that she must follow in making those decisions. Defendant’s Motion, pp.
5-6. The defendant’s position arrogantly ignores the limitations on her discretion that are set
forth in the plain language of the state welfare reform statute. As the Court recognized in its
April 20 decision, these limitations include the statutory provision authorizing the
Commissioner to extend benefits but not to create a separate program with different eligibility
requirements for extension families, St. 1995, c. 5, § 110(f), the statutory requirement that the
Commissioner must provide the earnings disregard for the “entire period of eligibility for
assistance,” § 110(d) and (g), and the statutory mandate that, in each case in which an
extension of benefits is requested, the Commissioner “shall” consider certain statutorily
mandated criteria. § 110 (f).5
As is well-established, “an administrative board or officer has no authority to
promulgate rules and regulations which are in conflict with the statutes by which such board or
office was created.” Bureau of Old Age Assistance of Natick v. Commissioner of Public
Welfare, 326 Mass. 121, 124 (1950); see also Arlington Housing Authority v. Secretary of
Communities & Development, 409 Mass. 354, 357-58 (1991).
For the foregoing reasons, plaintiffs respectfully request that defendant’s motion for stay
be denied and plaintiffs’ pending motion for prompt enforcement of the Court’s April 20, 1999
decision be granted.
Respectfully submitted on behalf of plaintiffs,
Ruth A. Bourquin, BBO # 552985
Deborah Harris, BBO # 557774
Massachusetts Law Reform Institute
99 Chauncy Street, Suite 500
Boston, MA 02111
(617) 357-0700 exts. 311, 313
The cases cited by defendant at p. 6 of her Motion were decided under different statutes
with materially different provisions. In those cases, there was no claim, as there is here, that the
agency was acting in contravention of express legislative conditions on the agency’s discretion,
and there was no claim, as there is here, that a ruling that the agency has unfettered discretion
would mean that the statute is unconstitutional because of lack of legislative standards. See
Counts 4 and 5 of Complaint and Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
Certificate of Service
I, Ruth A. Bourquin, hereby certify that on this 28th day of April, 1999 I caused a copy of
Plaintiffs’ Opposition to Defendant’s Motion for Stay of Judgment Pending Appeal to be served
by hand delivery on John Hitt, One Ashburton Place, Room 2019, Boston, MA 02108.
Ruth A. Bourquin