Judge’s Edicts to Mothers on Welfare Bring Legal Appeal

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.

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. On Monday, she and five other women plan to 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, 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.

‘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.”

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.”

But Paul Horton, a professor at the University of San Diego 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.

‘Circuitous’ Welfare System

“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.”

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.”

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.”

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.

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.

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.

Many Complaints Cited

“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.

Murphy’s critics say the 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 that 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.

“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.”

Judge’s Policy

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.

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 caused a woman’s aid to be cut.

“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.