CLARK COUNTY SOCIAL SERVICE DEPARTMENT, CLARK COUNTY, NEVADA, and COUNTY OF CLARK, NEVADA, Appellants and Cross-Respondents, v. EVERETT NEWKIRK, FOR HIMSELF AND THOSE SIMILARLY SITUATED, Respondent and Cross-Appellant
Clark County Social Service Department v. Newkirk
Mowbray and Rose, JJ., concur.
CLARK COUNTY SOCIAL SERVICE DEPARTMENT, CLARK COUNTY, NEVADA, and COUNTY OF CLARK, NEVADA, Appellants and Cross-Respondents, v. EVERETT NEWKIRK, FOR HIMSELF AND THOSE SIMILARLY SITUATED, Respondent and Cross-Appellant.
CLARK COUNTY SOCIAL SERVICE DEPARTMENT, CLARK COUNTY, NEVADA, and COUNTY OF CLARK, NEVADA, Appellants and Cross-Respondents, v. EVERETT NEWKIRK, FOR HIMSELF AND THOSE SIMILARLY SITUATED, Respondent and Cross-Appellant.
No. 18903
March 27, 1990
789 P.2d 227
[Rehearing denied August 21, 1990]
Rex Bell, District Attorney, Victor W. Priebe and Michael L. Douglas, Deputy District Attorneys, Clark County, for Appellants and Cross-Respondents.
Justin M. Clouser, Las Vegas; Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for Respondent and Cross-Appellant.
OPINION
By the Court,
Springer, J.:
Everett Newkirk has been a citizen of Clark County for approximately seven years. He is sixty-four years old and lives on the streets. He sleeps in parks in the daytime, claiming that he is afraid of being killed if he sleeps there in the nighttime.
On April 23, 1986, Everett Newkirk filed an application for relief with the Clark County Social Service Department. His application shows that his request was made because he did not receive his $96.00 Social Security check. A welfare worker noted on his application that Newkirk had "foot problems due to walking the streets." Another, previous note says that, "[i]t is felt by workers if Mr. Newkirk had a place to stay his feet will be given the opportunity to heal properly and he will be able to seek employment."
Although this poor, elderly, homeless, jobless, unkempt, welfare supplicant would not appear to be "employable" on April 23, 1986, his application form, under a section saying "Employable, Yes, No," is marked "Yes." On the basis of Newkirk's being "employable" at the time his application was made, Newkirk was denied relief on the basis of a Social Service Department regulation that "automatically" disqualified Newkirk. "Single employable . . . may not be served." Regulation II.14.B.3.
This case comes to us on summary judgment. No one contests the fact that Newkirk was poor and indigent nor that he was "automatically" refused on the ground that he was "employable." The district court granted summary judgment to Newkirk on the grounds that a Nevada statute required the county to provide relief to poor people like Mr. Newkirk, whether they were employable or not. We agree with the trial court on this point and affirm the judgment of the district court.
The statute in question, NRS 428.010(1), declares that the counties in Nevada must "provide care, support and relief to the poor. ." Since Newkirk is indisputably poor, one would think that the statute requires Clark County to provide care, support and relief to him. For some reason necessarily unconnected with NRS 428.010(1), Clark County has excepted a large segment of the poor from those whom it will "serve." The "employable" unemployed are excluded from care, support and relief no matter how poor they are.
Until such time as a law is enacted which relieves counties of the responsibility of caring for its poor or until the legislature defines "poor" in such a way that unemployed people can never be said to be poor, the counties must continue to "provide care, support and relief to the poor."
The mere enacting of the mentioned administrative regulation obviously cannot countermand the statutory mandate. "Administrative regulations cannot contradict or conflict with the statute they are intended to implement." Roberts v. State, 104 Nev. 33, 752 P.2d 221 (1988). While Clark County might enact regula tions setting standards of eligibility based on residence, property ownership or availability of financial resources, it cannot eliminate a large category of poor people simply by saying that single, employable, poor people "may not be served." If one is poor, however defined, one is entitled to relief under NRS 428.010(1). NRS 428.010(2) authorizes counties to prescribe uniform standards of eligibility for the poor, indigent, incompetent, aged, diseased and disabled. Counties can prescribe poverty levels, establish formalities and procedures for application and dispersement of relief, but it cannot say that "employable" people can never be poor or that people who are physically and mentally capable of seeking employment cannot be poor. Such a regulation is clearly in conflict with the state's mandate that counties care for their poor, all of their poor. See County of Lander v. Bd. of Trustees of Elko Gen. Hosp., 81 Nev. 354, 403 P.2d 659 (1965) (county's obligation to support poor people derives from the statutory provision imposing such a legal obligation).
As noted, we need not decide the question of due process and equal protection. As long as the state requires the counties to give relief to poor people, the county must do so. Newkirk is a poor person; therefore, Clark County must provide care and support and relief. It is as simple as that. The district court was correct in ruling that the regulation was inconsistent with the statute. Persons who are poor yet single and "employable," whatever that term may mean, cannot be categorically excluded from welfare benefits. The trial court's judgment in this regard will be affirmed.
We also agree with the district court in denying retroactive benefits to Newkirk and to the class. Those who were denied benefits by reason of application of the improper county regulation are indeed an amorphous group and not amenable to being identified as class plaintiffs. We think that the district court acted reasonably and properly in refusing to give retroactive effect to the judgment for the benefit of Newkirk or the class.
The judgment of the trial court is affirmed on the ground that Clark County Social Service Department Regulation II. 14.B.3 is invalid. Newkirk is eligible for indigent relief if he is in compliance with Clark County eligibility rules for relief to the poor other than Regulation H.14.B.3. The cross-appeal will be dismissed.
Mowbray and Rose, JJ., concur.
The designation "employable" which automatically rendered Newkirk ineligible for assistance gives rise to concern because the word is not defined in the regulations. In the case before us although the welfare worker appar ently checked the "Yes" box, indicating that Newkirk was employable, that he really was unemployable is problematical. Newkirk's deposition shows that around September of 1985 he had been offered a job but that he did not feel suited for it. He has been searching for work ever since. When asked how many jobs he had applied for in Las Vegas, He said (in his deposition): "Probably a hundred. The state employment office sent me and chasing them' ads in the paper and just on my own." "I've been to so many places I forgot I have even been in the damned place." At the time of the application he had been out of work for a year. His feet were sore from walking the streets. He was unkempt and unbaffied. Perhaps he was "employable." At least we have to assume so for the purposes of this appeal.
A number of constitutional questions were raised by Newkirk and considered by the trial court. In view of the nature of our disposition of the appeal it will not be necessary to reach these constitutional questions.
The California case of Mooney v. Pickett, 483 P.2d 1231 (Cal. 1971), is directly on point. By statute, California, very much like Nevada, requires local government to give support to "incompetent, poor, indigent persons, and those incapacitated by age, disease, or accident." San Mateo County enacted a regulation saying that "[gjenerally speaking, employable persons are not eligible." The California Supreme Court ruled, as we do now, that the county had broad discretion "to determine eligibility for, the type and amount of, and the conditions to be attached to indigent relief'; still, such discretion must be exercised so as to conform to the purposes and mandates of the underlying statute. Mooney, 483 P.2d at 1235. The statute clearly required San Mateo County to provide for persons who were poor; consequently, any kind of "employable" single man rule" was held to be inconsistent with the statute. The court in Mooney employed the following significant language:
A rule excluding from its scope all unmarried employable persons, without regard for the practical impossibility of obtaining employment in a depressed labor market, leaves such individuals without any source of relief whatsoever — a result inconsistent with the language and purpose of section 17000 and other statutes establishing General Assistance relief.
Id. at 1239.
The dissent defines the "single issue on appeal" as being whether a county government "may deny public assistance to employable single individuals and employable childless couples." The very simple answer to the question is that counties may not deny public assistance to employable individuals and couples if they are in fact poor. Nevada law requires counties to provide care to the poor, and certainly a person can be employable and also poor. We certainly would have no quarrel with a legislative scheme that would fairly and systematically exclude from welfare benefits single employable persons who unreasonably refused to accept employment, but this is not the same as excluding all persons who are physically and mentally able to work even though their "poorness' may have been created by circumstances entirely beyond their control.