By David G. Savage, Tribune Washington Bureau
3:39 PM PDT, October 5, 2010
Washington…A lawyer for Los Angeles County told the U.S. Supreme Court Tuesday that the failure to remove a wrongly accused couple from California's index of reported child abusers was the state's responsibility, not the county's.
I do not think so. The County received funding, through state budget appropriations to execute this function as a sub-receipient to federal funding.
"It's the state's data base," said attorney Timothy Coates. "There are no state standards and no specific criteria for removing someone from the list. We don't have any procedures on how to go about that."
The case of Craig and Wendy Humphries has highlighted the difficulty of getting off the state index once a person's name has been reported to Sacramento for abusing a child. The state's law requires many agencies and employees, including schools, police and child care workers, to report instances of suspected child abuse.
Not only that, the state entered into contractual agreement upon acceptance of the federal SACWIS and other grants. The state is the recipient. The county would be the sub-recipient according to federal guidelines. No immunity for either.
More than 800,000 names are on California's index, and employers consult the list before hiring people to work with children.
The Humphries were reported to state authorities in 2001 based on the word of his teenage daughter, but a juvenile court judge later pronounced them innocent of the charges. They have been fighting in court for several years to clear their names.
In January of 2009, the U.S. 9th Circuit Court of Appeals described their "nightmarish encounter" with the California system and ruled that both the state and county were liable for violating their constitutional rights. "There is no effective procedure for the Humphries to challenge this listing," the appeals court said.
Here is the decision:
9th Circuit Opinion in Humphries v Los Angeles County
Humphries v. L.A. County
But the lawyers for the county appealed to the Supreme Court, arguing that the county should not be liable for this state program. "Where the state law requires a local entity to do something," Coates said, "it's essentially the state making the decision."
As Justice Ruth Bader Ginsburg noted, the state of California did not appeal the decision, but the Humphries remain on the state index.
Here are the transcripts for the oral arguments of October 5, 2010:
U.S. Supreme Court Transcript for LA County v. Humphries
Justice Bennen asks a very powerful question as it is a reflection of the national ignorance of child welfare fraud.
JUSTICE BREYER: -- against State. I mean,here you have a statute and the statute doesn't have any method to get out off -- get out of it, even when you should. Their claim is this is a State matter, the State's responsible, it's unconstitutional, go sue the State and tell the State to do it. Now that's a - what's wrong with that position?
2001 was a free-for-all in child welfare funding. Fraud was rampant. The main argument as to why a name is not expunged from the central registry is that, if the state and the county removed a person's name from the central registry, it would be an admission of liability in violations of due process. See, without trial, charge, plea, verdict, or even knowing about it, you are placed on the central registry within a 48 hour period and rarely notified of the action.
By failing to remove a person's name from the central registry, the only recourse after exhausting all administrative avenues would be to bring an instant action. That takes money and knowledge. In 2001, the number of attorneys willing to take on any issues dealing with child welfare, was countable on one hand, if lucky.
Child welfare is an entitlement program, funded through Social Security. This means, through the poverty means test, the person placed on the central registry was poor. Poor people have no legal representation because state funded legal aid organizations are restricted from taking cases which will generate financial gain and would loose funding if it bit the hand that fed them, meaning a conflict of interest.
Incorporate the cost factor of litigation into the equation, meaning that the governmental entities would motion up on every minutia to the minimum cost of $200 an hour to the plaintiff, the person whose name was placed on the central registry, and you have a mutational algorithm to protect the racketeering enterprise."Every day for the last nine years the (Humphries) have suffered a violation of their due process rights," said Washington attorney Andrew Pincus.
Well of course they have suffered. That is just a tactic to wear out a challenger.
Despite the county's battle in the courts, an official of Los Angeles Department of Children and Family Services said that reported child abusers can appeal the listing. Michael Watrobski, chief grievance review manager, said the state told local reporting agencies in May of 2008 that they should offer appeals, and he said his office has heard 313 such challenges this year.
Watrobski said in an interview that he did not understand the county's legal argument in the courts. "I have no idea. I really don't understand that," he said.
After the Supreme Court argument, the lawyer for Los Angeles County was asked about Watrobski's office and his assertion that appeals have been heard for more than two years. "That's news to me. I have never heard that," Coates said.