Hogue v. Commissioner of Economic Security ( 1966 )

PALMORE, Chief Justice

(dissenting).

My dissent is based on the theory that the courts should not direct retroactive payments in welfare cases. This means that I no longer believe in the soundness of Ferguson v. Noe, Ky., 364 S.W.2d 650 (1963), in which we reached an untenable compromise, as all of the members of the court evidently realize. The difference is that the majority now decides to go all the way back (or to the time of the first departmental decision), whereas I am convinced, as the Department suggested in Ferguson v. Noe, that regardless of how long a claimant may be held up in the process of litigating his claim, the law does not provide and does not intend to provide any “entitlement” to relief until it is ultimately and finally approved. That is because the claimant never is entitled to more than is indicated by his present condition and prospects.

The problem was recognized, but not fully digested by any of us, when Ferguson v. Noe was in the process of being decided. Naturally, as lawyers we are schooled and like to think in terms of property rights, such as “vesting” and “entitlement,” and sometimes experience difficulty in grasping the welfare-state concepts that underly the type of case now before us. This occupational myopia (of which I do not deny being a victim myself) explains why the majority of the court now says in effect, “This appellant should have had her payments all along. So go back, and give them to her now.” In Ferguson we saw however that such a result, in a lump sum, would forthwith deprive the recipient of further relief until the money was gone, so it was suggested that the back pay be spread out over future installments. But this too is a fallacious approach, because every dollar of future installments will reduce the recipient’s then present necessity by the same amount, exactly as if it were an inheritance from a rich uncle instead of “back pay.” This in turn will result in a proportionate reduction rather than a supplementation of current payments. So, whatever the claimant receives for back payments he very likely will have to pay in the form of reductions in the future. It comes out the same either way, and to tell him now that he is going to receive back payments is nothing but a cruel illusion. He will not get a cent more unless he dies or goes off the welfare rolls by force of some other circumstance.

It was said in Ferguson v. Noe that if no retroactive relief could be granted, every case of this kind would be moot. I cannot agree. If the claimant’s condition remains what it was when the proceeding began, he has an adjudication that he is entitled to relief from now until there is a change of condition.

There is this to be said for the “back pay.” It should enable the claimant to pay his lawyer, and I do approve of that.