OLYMPIA — A federal judge’s decision to protect a state-funded food assistance program from elimination has raised concerns among state officials about their ability to successfully carry out future budget cuts in times of fiscal crisis.
U.S. District Court Judge Marsha Pechman on Tuesday denied the state’s request that she reconsider her preliminary injunction last month forcing the state Department of Social and Health Services to fully restore the Food Assistance Program for Legal Immigrants, or FAP. The program, which had been cut on Jan. 31, serves more than 10,300 households and provides benefits to immigrants who are ineligible for federal food stamps.
The state had hoped to save an estimated $7.2 million for the remainder of the current biennium and about $60.5 million for the next one by terminating the FAP. But Pechman found that by cutting off food assistance to a certain class of legal immigrants while continuing to operate and partially fund the federal food assistance program — which serves some immigrants — the state may be in violation of the Constitution’s Equal Protection Clause.
On March 18, the state filed an appeal of the preliminary injunction to the 9th U.S. Circuit Court of Appeals.
Gov. Chris Gregoire and other officials say this sets a worrisome precedent as the state looks to close an estimated $5 billion gap for the next two-year budget. In September, the Democratic governor ordered spending cuts of 6.3 percent across all general-fund state agencies to make up for a revenue shortfall.
“Now, can you imagine the ramifications of that on any and all programs that we might look at now that are state-funded-only programs?” Gregoire said the day after the injunction was issued.
Programs that receive no outside money are the first to be considered for cuts “because they are state-only and we should have the say over whether we fund them or we don’t,” Gregoire added.
While the potential implications of the ongoing litigation have unsettled state officials, attempts to block budget cuts in court are nothing new, said Narda Pierce, general counsel in the Office of the Governor. She called such lawsuits “a constant, ongoing challenge.”
“Plaintiffs often ask for a temporary restraining order and then a preliminary injunction, and meanwhile the clock is running and money is going out the door, requiring cuts in other programs,” Pierce said.
The FAP case is one of six pending lawsuits challenging budget cuts to programs within the Department of Social and Health Services, the state’s largest agency.
That number is likely to increase as Washington and other states continue to face daunting deficits and tough spending decisions, said Peter Nicolas, a professor at the University of Washington School of Law. However, he predicted most proposed cuts would still go through.
“The concern that courts will step in for every budget cut is unlikely to occur,” he said.
Nicolas said the class-action suit in Pechman’s court stands out from other budget cuts in Washington because it targets a group — legal immigrants — whose protection under the Equal Protection Clause falls within a grey area of the law.
In essence, the judge must decide whether the decision to cut the state-funded portion of the FAP is subject to “strict scrutiny” under the Equal Protection Clause. If it is, the state would have to prove that eliminating the program serves a compelling state interest.
“The Equal Protection Clause is a check on the democratic process, and in difficult times you don’t want the brunt of government action to fall on vulnerable groups,” Nicolas said, adding that he would not be surprised to see the FAP case reach the U.S. Supreme Court.
A class-action lawsuit in Hawaii last year raised similar issues after the state sought to scale back a free health plan for low-income legal migrants who don’t qualify for federal Medicaid benefits. The state had hoped to save an estimated $8 million annually through changes such as limiting outpatient hospital visits.
The suit alleged that by reducing migrants’ medical coverage, the state had violated their rights under the Equal Protection Clause. In December, a federal judge in Honolulu ordered the state to restore full benefits to the program.
In issuing her own injunction, Pechman also found that lead plaintiff Monica Navarro Pimentel, a King County mother of three, was in danger of “irreparable harm” if the FAP was discontinued. Pimentel, whose two youngest children are U.S. citizens, receives $647 in food benefits each month — $306 from the state and $341 from the federal program.
Last month, the Legislature and the governor approved a provision in the state’s newly enacted operating budget that preserves the FAP but reduces its benefits to half the level of federal food program benefits.
The state filed a motion of reconsideration on March 3 asking Pechman to vacate her earlier ruling in light of that compromise. She denied the motion Tuesday, in part because the recent budget provision does nothing to protect the FAP from elimination beyond the current fiscal year.
The judge also clarified the terms of her injunction to prohibit the state from tightening the food program’s eligibility requirements.
Columbia Legal Services, the legal aid organization acting as class counsel in the lawsuit, and the Department of Social and Health Services both declined to comment on the specifics of the ongoing litigation.
But Rebecca Henrie, a spokeswoman for the department’s community services division, said the agency has been forced to revise its balance sheet.
“We had assumed some savings for this year and next year based on eliminating this program,” she said. “Now we’ve had to restore all the benefits we had planned to close.”
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