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BROOKINS v. O'BANNON

June 21, 1982

Louise BROOKINS, Executive Director and Trustee Ad Litem for the Philadelphia Welfare Rights Organization, on behalf of its members, clients and itself
v.
Helen O'BANNON, Individually and in her official capacity as Secretary of the Pennsylvania Department of Public Welfare and Don Jose Stovall, Individually and in his official capacity as the Executive Director of the Philadelphia County Board of Assistance



The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 Plaintiffs filed this action seeking to declare Section 20(b) of the recently enacted Pennsylvania "Welfare Reform" statute, Act 75 of 1982, unconstitutional. Plaintiffs seek a preliminary injunction enjoining the defendants from enforcing Section 20(b) of Act 75.

 The plaintiff, Philadelphia Welfare Rights Organization ("WRO"), is an organization of public assistance recipients. Its stated purpose is to work for increased welfare benefits and elimination of unfair, discriminatory and illegal welfare statutes and requirements.

 The plaintiffs argue that Section 20(b) is unconstitutional because it violates and chills plaintiffs' First Amendment rights of political expression and political association by restricting access to the federal judicial system to redress grievances against agents of the Commonwealth. WRO claims that it has not instructed its attorneys to challenge Section 10 in the courts because it would jeopardize the five percent grant increase provided for its members in Section 20(a) of the Act. WRO argues further that since some of its members will receive less welfare because of their classification under Section 10 as "transitionally needy", while others of its members will benefit from the five percent increase under Section 20(a), it is forced to choose between the two classes of members because of the sanctions set forth in Section 20(b), thereby causing WRO to lose some members.

 Plaintiffs urge us to preliminarily enjoin enforcement of Section 20(b) of Act 75 of 1982. In order for the plaintiffs to be entitled to a preliminary injunction, they must show: (1) likelihood of success on the merits; (2) irreparable injury if the stay is not granted; (3) absence of substantial harm to other interested persons; and (4) absence of harm to the public interest. Constructors Ass'n of Western Pennsylvania v. Kreps, 573 F.2d 811 (3d Cir.1978); Hickey v. Commandant of the Fourth Naval District, Et Al, 464 F. Supp. 374 (E.D.Pa.1979), aff'd without opinion, 612 F.2d 572 (3d Cir.1979). "While these factors structure the inquiry, however, no one aspect will necessarily determine its outcome. Rather, proper judgment entails a 'delicate balancing' of all elements." Constructors Ass'n of Western Pennsylvania v. Kreps, 573 F.2d at 815 (footnote omitted).

 The main thrust of plaintiff's argument is that Section 20(b) of the Act chills plaintiffs' First Amendment rights of political expression and political association through litigation. Plaintiffs argue that the fact that the Act makes Sections 10 and 20 non-severable adds to the legislative purpose of penalizing the plaintiffs for exercising their First Amendment rights. We do not agree.

 The parties have stipulated that the cost savings from Section 10 are $48,000,000.00 for the fiscal year 1982-1983, and the costs of providing the grant increase under Section 20(a) are $13,000,000.00 for the fiscal year 1982-1983. The defendants argue that Sections 10 and 20 are inextricably intertwined components of Pennsylvania's welfare reform program; without Section 10, there will be no money for Section 20.

 We find that the legislative intent in making Sections 10 and 20 non-severable was not to penalize the plaintiffs for exercising their First Amendment rights but rather to ensure that there would be funds to provide the grant increase set forth in Section 20.

 The plaintiffs admit that the legislature could have constitutionally enacted Section 26 to provide that if any section of Act 75 was held unconstitutional, then the entire Act was null and void. They argue that would not have specifically penalized the plaintiffs from seeking redress in the courts. On the contrary, it would have had the same result -- a successful attack against Section 10 under a general non-severability provision has the same effect as the limited non-severability in the present Act. In either case, a successful attack against Section 10 makes Section 20 inoperable. Moreover, plaintiffs are no worse off than if the legislature had simply withheld enactment of the Section 20(a) benefit increase pending final resolution of any legal challenge to Section 10.

 Since we find that plaintiffs have no likelihood to succeed on the merits, we will not examine any other factors. Since there is no other evidence which plaintiffs would introduce at a hearing for a permanent injunction, we shall deny both a temporary and ...


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