Hillsborough

No. 7150

#### Patricia L. Rau *& a. v.*New Hampshire Division of Welfare *& a.*

March 31, 1975

*157*New Hampshire Legal Assistance*and *H. Neil Berkson, Bruce E. Friedman*and *Barbara Sard (Mr. Berkson*orally) for the plaintiffs.

*Warren B. FLudman,*attorney general, and *Charles G. Cleaveland,*assistant attorney general *(Mr. Cleaveland*orally), for the State.

*Cleveland, Waters & Bass*and *Robert T. Clark (Mr. Clark*orally) for the State Employees Association of New Hampshire, Inc., as intervenors.

Per curiam.

The issue in this case is whether the superior court has jurisdiction to hear and consider a petition to enjoin the division of welfare and its director from temporarily reassigning sixty-two social workers to nonsocial work duties. We hold that it does.

At the hearing on preliminary relief, the Superior Court *(King,*J.), not being satisfied it had jurisdiction to hear the cause, transferred the question of jurisdiction without ruling.

The basic facts are these. By a memorandum issued January 29,1975, effective February 4, 1975, defendant Thomas L. Hooker, director of the division of welfare, implemented “Project Update”: an administrative assignment of sixty-two of this State’s social service staff to duties involving reinvestigation of Aid to Families of Dependent Children (AFDC) recipients and recalculations of AFDC grants. 42 U.S.C.A. § 601*et seq.*(1974). Reassignment of approximately one-half of the social work staff is expected to continue until atleastjuly 1, 1975. The purpose of this “temporary” reassignment is to attempt to lower both the percentage of overpayments and the number of ineligible recipients in the AFDC program. Without reduction in these error rates, the State claims a possible loss of federal welfare funds.

Plaintiffs, as welfare recipients, on behalf of themselves and all others similarly situated, claim that the reassignment violates the defendants’ obligations under the state and federal welfare law to provide certain minimum family assistance services. RSA 161:2 I, II-III (Supp. 1973), IV, VIII; 161:4, :7 (Supp. 1973); 169:10 (Supp. 1973); 169:37 *et seq.*(Supp. 1973) and federal requirements *158set forth pursuant to 42 U.S.C.A. §§ 602 (a) (14), (16), (20) (1974) as amplified by 45 C.F.R. §§ 220.40 (b) (3), (4) (October 1, 1974). They further allege that they have no adequate remedy at law and will suffer irreparable harm unless an injunction or other relief is granted.

Both sides agree, however, that the reassigned social work staff rendered vital protective family services encompassing, in part, child-care, licensing of foster and day-care homes and centers, supervising child placement, adoption, employment and training services and independent care services to adults. According to the agreed statement of facts, the “[defendants admit that there will be a lessening of social services provided during the course of ‘Project Update’, but deny that the curtailment will amount to a total deprivation of any specific type of service, or that any particular recipient will be foreclosed from all services, and believe that in any event, the reassignment is administratively justified.” The impact and legality of the administrative reassignment, therefore, is an open question.

Authority to hear these issues properly resides within our superior courts. As courts of general jurisdiction, they “shall take cognizance... of suits in equity....” (RSA 491:7 (Supp. 1973)) when “there is not a plain, adequate and complete remedy at law ....” RSA 498:1 (Supp. 1973); RSA 498:2; *Hatch v. Hillsgrove,*83 N.H. 91, 92-93, 138 A. 428, 430 (1927). Within this plenary jurisdiction, suits against State agencies or their officials allegedly acting beyond their legislative or constitutional authority may be entertained. *O’Neil v. Thomson,*114 N.H. 155, 158-59, 316 A.2d 168, 170 (1974); *Shirley v. Water Pollution Commission,*100 N.H. 294, 296-97, 124 A.2d 189, 191 (1956).

Plaintiffs’ pleadings in this case reveal adequate jurisdictional facts. They allege that certain basic social services will be reduced, if not terminated, by the State welfare directive in question. Such actions, they charge, specifically violate their enumerated state and federal statutory rights to certain benefits for which there is no adequate remedy at law and from which irreparable harm results. *See Cornelius v. Minter,*Civil No. 73-4261-F (D. Mass., decided October 21, 1974).

While we do not pass upon the merits of this case, we are aware that the division of welfare appears to be in an administrative dilemma. That is, the division must serve with the same staff two legislative masters, one being the need to maintain statutorily pre*159scribed social services and the other to maintain their fiscal integrity in order to receive federal welfare funds. The director has discretion to assign personnel and prescribe their duties. RSA 161:4, :7 (Supp. 1973). This case is distinguishable from *Clark v. N.H. Dep’t of Health and Welfare,*114 N.H. 99, 315 A.2d 187 (1974), which held, in part, that State executive officers cannot annul, amend, or modify a legislative program enactment.

*Remanded.*

*162Governor Meldrim Thomson, Jr., by his legal counsel, James J. Barry, Jr., filed a memorandum of law for affirmative answers to questions 1 and 2.

Miriam O. Page, by her attorneys, McLane, Graf, Greene, Raulerson *8c*Middleton and Charles A. DeGrandpre and Richard S. Snierson, filed a memorandum of law in favor of negative answers to questions 1 and 2.