Loughry not pleased with AG’s office’s representation

Last updated: December 17. 2013 9:21AM - 808 Views
John O’Brien The WV Record



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CHARLESTON – A husband separated from his wife who was living in a camper on their property was not technically “living with” his wife, the state Supreme Court has ruled, and one justice is disappointed in a state agency’s representation by the Attorney General’s Office.


The court on Nov. 6 ruled for Patricia Hudson, a Boone County woman who was receiving food stamps and classified as a separated spouse in a one-person household. The state Department of Health and Human Resources argued that was not the case and wanted repayment of nearly $2,000 in food stamp benefits received from May 2010 to September 2011.


“This Court finds that DHHR failed to prove that the petitioner and Mr. Hudson lived together during the 17-month time period of the overpayment claim, and that the claim should have been dismissed at the conclusion of DHHR’s evidence,” Justice Margaret Workman wrote for the majority.


“Even assuming, arguendo, that the DHHR’s evidence was sufficient to shift the burden of proof to the petitioner, the petitioner’s evidence was overwhelming and established that DHHR’s action was incorrect.”


In May 2010, Hudson listed on an application for food stamps that she was the sole resident in her home and had no income other than her own. She began receiving $146 per month.


Previously, Hudson had ordered her husband Harold out of the house because of his drinking, the opinion says. She told him he was welcome back whenever he quit, it adds.


Harold lived in a camper owned by his brother on Patricia’s property. Though they were married, Harold’s name was not on the deed.


While living in the camper, Harold ran an extension cord from Patricia’s house for power, the opinion says. He reimbursed her for the amount of electricity he used, and his name wasn’t taken off the utility bills.


Patricia said Harold never set foot in the house again. He even showered at his daughter’s house.


Eventually, Harold moved out of the camper and lived with family members, though Patricia drove him to doctor’s appointments.


A DHHR worker noticed the trips to the doctor and that Harold still had the same physical address as Patricia. He listed the address on his driver’s license when he renewed it, but only because he was not allowed to use his P.O. Box.


The DHHR sent Patricia a notice of overpayment of $1,985, and she requested a hearing. The opinion says her representative attempted to retrieve her file three times unsuccessfully, so Patricia staged a mini sit-in at the DHHR office for several hours until she was given her file.


At a hearing, Stephen M. Baisden, a state hearing officer, ruled the two shared utilities, the property and liquid assets (a joint bank account).


After an appeal, the Kanawha County Circuit Court affirmed DHHR’s overpayment claim, ruling it is “logical to conclude that Petitioner and her spouse lived in the same household.”


The state Supreme Court overturned the decision. It ruled that the notice of overpayment sent to Patricia was inadequate.


However, that isn’t enough to dismiss the overpayment claim, the court ruled.


The court also found DHHR obstructed her right of access to the file, but since she was not prejudiced by it, the overpayment claim can’t be dismissed on that argument.


Workman wrote that no reasonable fact finder could determine that the two lived together during the time period in question.


“The undisputed evidence was that Mr. Hudson had no access to the petitioner’s home, even during the four months he lived in the camper, and no access to the telephone,” Workman wrote.


“Only by applying an irrebutable ‘same address’ presumption – which both the hearing examiner and the circuit court appear to have done – could this evidence be deemed sufficient to establish that the petitioner and Mr. Hudson lived together.”


Justice Allen Loughry authored a concurring opinion. In it, he deems both the investigation of the DHHR and the efforts of its attorney as unsatisfactory.


DHHR was represented by Attorney General Patrick Morrisey’s office.


“The case at bar presented this Court with an opportunity to write in an area of the law that had not been previously addressed,” Loughry wrote.


“Generally, in such a case, one would expect each side to file a well-researched brief containing a thorough discussion of the relevant law as it related to the party’s respective position on the issues to be considered on appeal.


“For reasons that are not readily, the DHHR chose, instead, to file a three-and-a-half-page summary response.


“The DHHR’s summary response fails to contain even a single citation to any legal authority or to the record. As a result, the DHHR disappointingly offered very little to support its position in this matter.”


Patricia Hudson was represented by Bruce Perrone of Legal Aid of West Virginia.


(Editor’s note: From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.)

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