Judge’s Controversial Approach Puts Mothers to Work, But Is He . . . : Looking Out for Their Welfare?

Shelley Anderson was pretty proud of herself.

Recently separated from her husband, the 26-year-old San Diego State University student was shouldering a full load of courses, working two part-time jobs and raising a child. True, she was getting by with the help of a $535 welfare check each month. But that support was just a temporary--and vital--crutch needed to see her through to graduation next year, Anderson said.

Then she wound up in Judge Thomas Murphy’s courtroom.

Called to testify against her ex-husband in their child-support case, Anderson suddenly found herself on trial. After learning that the young mother was receiving welfare, Murphy, the presiding judge of San Diego County’s Family Court, issued a startling decree: Find a full-time job and get off aid, he ordered, even if it means quitting school.

Was Legally Eligible

Anderson was shocked. Under federal and state welfare regulations, a parent whose child is under 6 is not required to work to receive payments. Didn’t the judge know that?

“I told him I was satisfying the welfare requirements and working as much as possible around my school schedule,” said Anderson, whose son, Corey, is 5. “He didn’t seem to listen. He thought I was trying to beat the system.”

Angry and insulted, Anderson resolved to fight the judicial order. Later this month, she and five other women will ask the state Court of Appeal in San Diego to review Murphy’s controversial policy of requiring welfare mothers with young children to find jobs and get off the public dole.

If the appellate court agrees to hear the case, a host of provocative questions will merit inquiry. Among them: Is Murphy performing a bigger role than that permitted a judge under the law? Is he legislating rather than adjudicating, as his critics argue? May the court hold welfare recipients to stricter standards than the state and federal governments themselves impose?

Murphy, a genial man with an impressive reputation among attorneys and his colleagues on the Superior Court bench, said he welcomes the legal challenge.

“If the court tells me I shouldn’t be doing this, I won’t,” he said in a recent interview. “If they say it’s a good idea, I suspect other judges will follow suit.”

Asked where he finds authority for his policy, the 52-year-old jurist points to a section of the state civil code requiring both parents to assist in the raising of their children.

“I ask these parents on aid, and most of them are women, whether there is anything emotionally or physically wrong with them or the child that would prevent them from working,” Murphy said. “If the answer is no, then I believe they are legally obligated to provide for their family.”

Attorneys at the Legal Aid Society of San Diego, which is handling the unusual case with help from the Volunteer Lawyer Program, clearly disagree. They believe Murphy has stepped beyond the bounds of judicial authority and is improperly forcing welfare recipients to do something neither the Legislature nor Congress requires.

They further argue that there is no legal precedent for the judge’s must-work orders, and that his policy conflicts with basic family law principles.

“It seems clear to us that Judge Murphy is playing the part of something other than a judge,” said Anson Levitan, a staff attorney at Legal Aid. “He is making legislative determinations, not judicial ones. This is the court acting on its own accord and deciding that a woman should not get (welfare) payments and should be working instead.”

Although some other judges on the local Family Court bench say they share Murphy’s sentiments on the welfare issue, none appears to employ his controversial practice systematically. Judge Thomas Ashworth III said he agrees philosophically with Murphy on the subject, but suspects his colleague may be treading on thin legal ice.

‘A Basic Unfairness’

“It’s hard listening to these cases over an extended period of time, because you may have a clerk who is in the exact same situation as these women, who has a 2-year-old child and would rather be at home but is out working for a paycheck,” Ashworth said. “I think there’s a basic unfairness there. And, if I had the authority, I would order these young women to (find jobs) rather than put the burden on the taxpayer.”

Judge Federico Castro, meanwhile, said he evaluates each case individually, but usually does not require mothers with children under age 6 to look for work.

“If the kids are that young, then they aren’t in school and are typically home with Mom,” Castro said. “I feel they need that time with Mom and they need the continuing bonding to establish a better parent-child relationship. I believe the mother generally will give better supervision and better care to a child than a child-care center.”

Interviews with a handful of family law scholars around California indicate that Murphy may be breaking new legal ground with his practice. Several experts, stressing that they had not read the legal briefs, also speculated that the judge could have a weak case before the Court of Appeal.

“It’s astonishing,” Carol Bruch, a prominent family law professor at UC Davis Law School, said when informed of the policy. “In my view, the obligation to support one’s child as defined in the civil code must be read in light of what the state requires of recipients in terms of employment or eligibility.”

Bruch added that “it seems very unwise, on policy grounds, to expect parents of very young children to look for work given that our welfare laws assume it may not be in the child’s best interest.”

Agency Should Govern

Stephen Sugarman, a professor at UC Berkeley’s Boalt Hall law school, said that “it seems the agency designated by the Legislature to decide what restrictions and requirements are appropriate in this area ought to be the agency whose rules govern. Other people in positions of power ought not come in and insist on different things.”

Sugarman added that “it makes good sense to have some reasonably standard practices around the state,” rather than “ad hoc criteria designed by a particular judge.”

But Paul Horton, a professor at University of San Diego’s School of Law, said Murphy’s policy “does not appear to be in disregard of any explicit statutory position.”

Murphy, a former family law attorney, was appointed to the El Cajon Municipal Court bench by then-Gov. Edmund G. Brown Jr. in July, 1980. Five years later, Gov. George Deukmejian elevated him to the Superior Court. In 1987, he was named Family Law Judge of the Year by the State Bar.

Known for his good humor and wit, Murphy said he initiated his policy about three years ago. In addition to his belief that the law requires parents to provide for their minor children even if they are under 6, Murphy said he was spurred to act by his belief that the welfare system is a trap from which many single parents need to be freed.

“The welfare system, for the majority of people, just seems to be circuitous,” he said. “The people who are on aid never seem to get off, and then their children and their children’s children wind up on it, and it’s never-ending.”

Nothing Magical Happens

He also argues that the longer poorly skilled mothers wait to enter the work force, the more difficult it will be for them to land a job.

“It’s not as if something magical is going to happen when their children turn 6,” he said. “Waiting simply delays the problems many of them will have in entering the work force.”

It is clear that Murphy feels sincere satisfaction each time a woman he has directed to look for work returns to his courtroom and reports she has landed a job. Indeed, the news appears to recast the no-nonsense Murphy into the role of proud father.

During one court session last week, Murphy summoned a recently divorced Escondido woman forward and posed the fateful question: “Did you get a job?”

“Yes,” said Kelly Winston, 25, “at Continental Dry Cleaners.”

“Terrific!” exclaimed Murphy, flashing Winston a quick thumbs-up signal. “That’s where I take my shirts. You guys do a great job.”

Interviewed later, Winston said her new position as counter clerk pays $4.25 an hour. Although her wages alone would not be sufficient to pay for rent, food and child care during work hours, Winston said her boyfriend “is making good money now” and helping out with the bills.

‘There Are Success Stories’

Although Murphy said he has seen many happy endings as women have replaced their welfare check with a paycheck, he has not kept track of them until recently and is somewhat reluctant to discuss those cases.

“I’m afraid I look like some sort of benevolent despot up here, and I don’t feel like that and don’t want to appear that way,” he said. “But there are success stories. When these people come back to court and tell me they’ve found a job, they seem very pleased with themselves and happy to be working.”

Although many women complained that Murphy’s orders are unfair, several mothers interviewed during a recent afternoon at Family Court said he gave them the nudge they needed to get off welfare and seriously look for work.

“I figured this was coming sooner or later,” said Winston, whose son Charles is 4. “I’d probably be at home making excuses if not for him.”

Ofelia, a divorced mother of two from Chula Vista who asked that her last name not be used, said she had “mixed feelings” about the judge’s directive but felt he had her best interests at heart.

“I think it was good that he pushed me, and, now that my children are a little older I don’t mind,” said Ofelia, who was in court last week to tell Murphy she had been hired as a cook in a restaurant that will allow her to take her two sons to work. “We all have to work. But, when the children are younger, I think they need their moms at home.”

‘It’s Very, Very Hard’

Other women said they wouldn’t mind working--even while their children are under 6--but were having trouble finding jobs and affordable day care. Gloria Morales, 23, said she has been applying for work “almost every day” since her divorce in July.

“I have applications in at Payless, Taco Bell and Jack in the Box,” said Morales, whose daughter, Anna, is 3. “But it’s very, very hard.”

Meanwhile, she said, there are long waiting lists at the few child-care centers within her financial reach.

Critics of Murphy’s policy do not dispute that the judge has deeply held convictions and sincerely believes he is helping women break out of the so-called welfare cycle. But they complain that, aside from its questionable legality, Murphy’s approach ignores many of the hardships besetting poor, single mothers with limited job skills.

“Something has to be done about this man because he is creating a lot of problems for people, a lot of problems,” said Merkel Harris, executive director of the San Diego Welfare Rights Organization, which has fielded many complaints from women subject to the policy.

Kate Yavenditti, a staff attorney with the Volunteer Lawyer Program who has several clients joining in the legal challenge, said Murphy “seems to truly believe he is helping not just society but these people by getting them off welfare.” The problem is, “someone who has never been a single parent in a poverty situation doesn’t really understand the consequences of these orders,” Yavenditti said.

Low-Paying Jobs

Specifically, Murphy’s critics say, the type of jobs many welfare recipients are qualified for often fail to pay enough to cover child-care costs. Also, many mothers are reluctant to go off aid because they will lose their Medi-Cal benefits--a precious commodity for parents of small children prone to illness.

“I don’t like being on welfare, I hate the whole deal, and I’d rather work for my own money,” said Stacey Cope, 20, who supports herself and her 3-year-old daughter, Ashley, on $535 a month plus $87 in food stamps. “But I don’t have any skills, and the type of job I could get wouldn’t be enough to cover rent and day care.”

Losing her medical insurance is Cope’s biggest worry: “Ashley has been in and out of the emergency room seven or eight times this year. She just got over scarlet fever. If I lose Medi-Cal, that’s it.”

The judge says he sympathizes with the stress that child care puts on a meager household budget and that he attempts to take a person’s earning potential into account when issuing his orders. He also believes that, with the mushrooming number of working mothers, the government may eventually have to operate or underwrite day-care centers to make the service affordable.

But Murphy is not convinced that the only jobs available to welfare recipients are with a fast-food restaurant or other low-paying employer.

Not Going to Go Away

“That’s just not true with the people I’m seeing who are succeeding in jobs,” he said. In addition, “the reality of child care isn’t going to go away or get any easier. Someday they’re going to have to face it.”

Under Murphy’s policy, instituted about three years ago, any mother on aid who comes through the Family Court and meets his criteria can be a target of the work order. Many are there seeking a divorce, others to obtain a restraining order against an abusive husband. Some, like Shelley Anderson, are there as witnesses, trying to compel former spouses to pay child support.

If the child in a given case has reached age 2 or is toilet-trained, and, if there is nothing physically or emotionally wrong with the parent, Murphy orders the mother to make five “job contacts,” or interviews, per week. (Until the legal challenge is settled, the judge has agreed to raise the age to 3.)

The judge further directs them to return to court a month later with an update on their progress. If they prefer, the judge allows women to instead enroll in the state’s GAIN (Greater Avenues for Independence) program. GAIN provides job training and education for welfare recipients who need it when their children turn 6 and they must enter the work force.

Number Keeps Growing

About a month ago, Murphy began monitoring the success of his program. He estimates that a dozen such mothers receive work orders from him each week. But the total number of parents involved keeps growing because those who fail to land jobs after the first try must return to court for more job-search instructions.

“Last week we did really well, with 43% of the people returning to court getting jobs and getting off aid,” Murphy said Thursday. Other weeks, that figure has been as low as 1% or 2%. The judge requires the welfare mothers to return to court monthly until they find work or enroll in the GAIN program.

Officials who administer the welfare program here declined to express an opinion about the legality of Murphy’s actions. They did say, however, that people on welfare need not comply with his orders to receive their government checks.

“State regulations clearly say that a woman with a child under 6 does not have to do this,” said Yolanda Thomas, spokeswoman for the county’s Department of Social Services. “A judge can make whatever kind of order he wants, and, if she doesn’t comply, he could find her in contempt of court. But even then she would still be eligible for aid.”

Nonetheless, some of those who have failed to abide by Murphy’s order have faced painful consequences. The judge said he has never cited an unobliging parent for contempt, and doesn’t plan to. But those who fail to obey his directive are labeled “non-cooperative” in notices sent to the Department of Social Services. In some instances, that has prompted a woman’s aid to be cut.

“We’ve had some miscommunication, because it was not clear that the reason the recipient was termed ‘non-cooperative’ was that she didn’t follow Judge Murphy’s order,” Thomas said. “Once we learn the true reason, benefits are reinstated.”

One Check Can Mean a Lot

Still, it may take an appeals hearing and a month or more for that to occur. And even one missed check can mean a lot to a family that may be just barely scraping by, Legal Aid attorneys said.

“This is the really punitive side of the issue, and I can guarantee that if some of these people have $200 less at the beginning of the month, they won’t be making their rent payment,” said Colleen Fahey Fearn, another Legal Aid lawyer working on the case.

Yavenditti said news of the policy and the potential for termination of welfare benefits has circulated among mothers taking refuge in battered women’s shelters around the county. Fearful that their checks could be halted or interrupted, some women who might otherwise ask the court for protective orders against abusive husbands are not doing so.

“This is a very vulnerable group of people, and that welfare check is their lifeline,” Yavenditti said. “The fact is some of these women, who really need to go to court, have heard about this and are scared.”

The policy also creates piles of added work for Murphy himself and for attorneys with clients who receive the work orders. One attorney who handles domestic cases for welfare recipients on a pro bono basis said she can scarcely afford to represent such clients because Murphy keeps calling them back to court.

“Going back to court three or four times because of these job-contact orders is a lot to do on a volunteer basis,” said the attorney, who asked not to be named.

Made Them Feel Guilty

Despite Murphy’s insistence that he does not have an anti-welfare bias and appreciates the difficult bind many single mothers face, several women interviewed said the judge’s actions and “attitude” made them feel ashamed, upset and guilty.

“I felt like he was making a spectacle out of us, and it really made me doubt myself and feel I didn’t have the right to finish college,” Anderson said.

Cope, another of the six plaintiffs in the Legal Aid action, said she realizes that some welfare recipients are just looking for a free ride. But she worries that Murphy is examining everyone through the same lens.

“A lot of people on welfare are trying to beat the system, and I hate those people because they make me look bad,” Cope said. “I think the judge just looks at me as one of them, as somebody trying to take his taxes and live off them.”

A third woman, who began receiving welfare when she divorced her husband in July, 1987, said Murphy’s policy fails to recognize the right of women to stay home with their children if they so choose.

“I don’t have anything against those supermoms who work 9 to 5 and then come home to their kids,” said the woman, an El Cajon mother of three who asked that her name not be used. “But that’s not for me. I prefer to stay home right now and be Dotty Domestic. And I know my kids benefit.”

As Murphy awaits a verdict on his policy, he is aware that the passage of time may make the whole issue somewhat moot. Earlier this year, Congress passed a sweeping overhaul of the nation’s welfare system--the first major change since its establishment during the Depression.

Under the new system, which is not expected to be fully implemented until 1992, recipients of Aid to Families With Dependent Children will be required to enroll in state-run education, job training or work programs once their children turn 3.

Unlike Murphy’s system, however, the government’s program will pay for nine months of child care and up to a year of medical insurance once a recipient lands a job.