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March 23, 1982

Timothy CASEY, et al.
Helen O'BANNON, et al.

The opinion of the court was delivered by: TROUTMAN


In early November, 1981, defendants Helen O'Bannon, Secretary of the Department of Public Welfare, and Barry Roth, Director of the Office of Hearing Appeals, instituted new procedures which require that rejected applicants *fn1" for public assistance *fn2" pursue appeals in one of six regional hearing centers for a so-called face-to-face hearing. Those appellants who find travel to the regional site onerous, or impossible, have the option of presenting their cases to a hearing examiner over the telephone.

 Plaintiffs *fn3" , all indigent applicants for public assistance, primarily contend that their due process rights are violated because they have to travel to the required sites for a face-to-face hearing. As welfare recipients, or applicants therefor, plaintiffs assert that they are "poor", by definition, and that they are unable to travel the sometimes long distances to the regional centers. Hence, they contend that their statutory and constitutional right to a face-to-face hearing is an empty one since they are unable to exercise it. This forces them to pursue their claims in a purportedly constitutionally infirm forum: a telephone hearing.

 Plaintiffs argue that telephone hearings are unconstitutional in that the hearing examiner is deprived of the opportunity to properly judge witness demeanor. Moreover, telephone hearings are frequently conducted by "conference call" whereby participants are not in the same room. This, plaintiffs asseverate, makes meaningful cross-examination of an adverse witness virtually impossible in that counsel can neither gauge visual reactions of witnesses nor discern when a witness testifies from memory or is using documents as an aid. Hence, plaintiffs argue that the conference call procedures violate settled notions of due process.

 The challenged procedures, which became effective in November 1981, replaced procedures whereby each claimant had the opportunity for a face-to-face hearing at their County Board of Assistance. The former method required hearing examiners to travel from county to county to insure that they met face-to-face with claimants and witnesses. Defendants assert that the new procedures are necessitated by budgetary considerations.

 Turning now to the substance of plaintiff's allegations, the complaint is cast in both statutory and constitutional terms. Courts resolve cases whenever possible on statutory grounds and seek to avoid unnecessary constitutional adjudications. This, in fact, is a "cardinal principle". Crowell v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598 (1931). Accordingly, we first inquire into relevant federal regulations which the procedures purportedly violate. The federal requirement is that a "hearing" be held at a "reasonable", 42 C.F.R. § 431.240(a)(1); 45 C.F.R. § 205.1(a)(8), and "accessible" place. 7 C.F.R. § 273.15(1) *fn4" "Reasonableness" is, of course, a flexible term, it connotes and requires consideration of all relevant facts; "accessible" is a less flexible term, it focuses primarily on a claimant's ability to get to the hearing site. Both terms, however, relate to the location of the "hearing". This calls into question the type of "hearing" which is mandated. If telephone "hearings" are permissible, there is little dispute that they are "reasonably" and "accessibly" located. If telephone hearings are infirm, the question of the reasonability and accessibility of the six regional sites comes to the forefront of our decision.

 Defendant urges us to rest our holding on the theory that the six regional hearing centers are "accessible" and "reasonably" located. If we agreed, we would, without more, hold on statutory grounds and avoid the underlying constitutional issues spawned by the telephone hearing process. However, while it might be "reasonable" under all the circumstances to have regional hearing sites, some claimants may not find them "accessible". For example, testimony adduced at the hearing demonstrates that, due to rural transportation problems, claimants residing in Clearfield County must leave their homes a day in advance in order to attend a face-to-face hearing. This problem is compounded by the fact that claimants are poor and frequently lack sufficient funds for transportation and overnight lodging for themselves and their witnesses. As such, the argument that the regional sites are not "accessible" strikes a responsive cord. Consequently, we examine plaintiffs' contention that they are forced to participate in an allegedly unconstitutional telephone hearing which deprives them of due process.

 The question becomes this: given the fact that telephone hearings are generally "accessible" *fn5" and "reasonably" located, do they provide sufficient procedural safeguards to pass constitutional muster under the due process clause?

 We begin our analysis of this issue with the observation that due process requires "an opportunity at a meaningful time and in a meaningful manner for a hearing appropriate to the nature of the case." Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982) (quotations omitted; emphasis is original.) This description echoes the frequently articulated view that due process is a flexible concept, "protean in nature", Chung v. Park, 514 F.2d 382, 386 (3d Cir. 1975) and dependent upon the particular facts of each case. Glenn v. Newman, 614 F.2d 467, 472 (5th Cir. 1980). See, Goss v. Lopez, 419 U.S. 565, 579, 95 S. Ct. 729, 738, 42 L. Ed. 2d 725 (1975) (due process requires an "appropriate accommodation of the competing interests involved".) In determining the amount of legal process which is "due", courts delicately and carefully balance private and governmental interests with an eye toward determining whether the challenged procedure provides a meaningful opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18 (1976). In fact, a meaningful opportunity to be heard is a "due process maxim". O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 780, 100 S. Ct. 2467, 2472, 65 L. Ed. 2d 506 (1980).

 The specific test we apply in considering whether the process afforded is "due" requires inquiry into three discrete areas:

 Mathews v. Eldridge, 424 U.S. at 334-35, 96 S. Ct. at 902-03.

 The first factor, the private interest, is an important one to plaintiffs and weighs in their favor. Assistance programs, by definition, involve the means to obtain food, clothing, housing and medical care. Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).

 The second Mathews factor, the risk of an erroneous deprivation and the value of substitute procedures, requires reference to the manner in which the hearings are conducted and suggested improvements thereof. Plaintiffs' argument centers, in large part, upon their contention that the risk of an erroneous deprivation through telephone hearings is quite high. Their argument that telephone hearings are a fundamentally unfair method of adjudicating rights is bottomed upon a number of contentions: plaintiffs argue that while participating in such hearings they cannot see the witnesses who testify against them; they cannot see documents from which witnesses testify; they have no way of discerning when witnesses confer with, and aid, each other during testimony and, finally, the hearing officer is deprived of the opportunity to observe witness demeanor and meaningfully judge credibility. Plaintiffs also argue that they are unable to observe the hearing officer's reaction to the testimony adduced at the hearing. Hence, they ...

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