One Year Later: A Q&A with Fish Principal Alex Gelberg on the Legal Battle against Project 100%

In partnership with the ACLU of San Diego, Fish & Richardson attorneys tackle challenging P100 in California.

In April 2021, San Diego County's longstanding Project 100% (P100) program finally came to an end when the County's Board of Supervisors voted to terminate it. The ACLU Foundation of San Diego & Imperial Counties' legal effort to stop this unfair and discriminatory policy spanned more than two decades and involved multiple lawsuits and appeals. Fish & Richardson P.C. joined the effort to end P100 in 2018, working closely with the ACLU that challenged the program in the San Diego Superior Court and the California Court of Appeal.

On the one-year anniversary of this important victory, we sat down with Fish Principal Alex Gelberg for a Q&A to learn more about P100 and his involvement with the case.

What Is P100?

P100 was a program instituted by San Diego County in 1997. It required virtually every applicant for benefits under CalWORKs (California Work Opportunity and Responsibility to Kids), a cash assistance welfare program that supports families in need, to submit to warrantless, suspicionless, unannounced home searches and interrogations carried out by law enforcement agents from the San Diego County District Attorney's office. San Diego County was the only county in the nation that imposed such a requirement on benefits applicants. Los Angeles County previously operated a program modeled on P100, but it was abandoned more than a decade ago.

What Was the Goal of P100?

The stated goal of the P100 program was to prevent fraud among the applicants for CalWORKs. Law enforcement agents carrying out the home searches and interrogations were directed to look for evidence that the applicant had unreported sources of income. However, given the burdens the program imposed on applicants, some suspected that fraud detection was merely a pretext for deterring qualified applicants from applying.

What Burdens Did It Impose on Applicants?

P100 home inspections were unannounced and unscheduled. Applicants could be denied benefits if they were not home when the investigators arrived, despite receiving no prior notice of the visit. As a result, the applicants had to effectively postpone various vital activities, such as job searches, skip medical appointments, and stop taking children to and from school for fear of suffering denial of income necessary to feed their families. Furthermore, the scope of home investigations was invasive and humiliating. For example, the law enforcement investigators could inquire about a variety of subjects, including matters unrelated to eligibility or that had already been documented and verified during the application process, including but not limited to intimate relationships, child care, sufficient toys and food for children, and living and sleeping arrangements. Likewise, the investigators could sift through applicants' dressers, laundry hampers, refrigerators, and other inappropriate and unnecessary locations.

How Effective Was the Policy?

The program's efficacy was dubious, primarily because it did not require individualized suspicion of fraud to launch an investigation. Rather, the triggering event for an investigation was merely the filing of an application for public benefits. Indeed, an independent 2014 study showed that the County had vastly overstated the efficacy of the program in detecting fraud. The County agreed that its figures were boosted and subsequently changed how the data was collected and reported, which caused a drop in the percentage of P100 visits resulting in a reduction or elimination of benefits from 25% to only 6%. Even in those cases, the benefit reductions may have had explanations other than fraud, such as errors in filing or changed circumstances.

How Did the ACLU Challenge P100?

The ACLU of San Diego first challenged P100 in Sanchez v. Cty. of San Diego, which was filed in 2000 and challenged the P100 program as unconstitutional. At that time, P100 had a broader reach, and applied not only to CalWorks, but also to CalFresh (California's food assistance program). One contention was that the program violated the Fourth Amendment to the Constitution that protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." When the case went on appeal to the Ninth Circuit, the Court held that the home visits conducted in connection with P100 were not searches under the meaning of the Fourth Amendment, and that even if the home visits were searches, they were reasonable. Another argument in Sanchez was that P100 home visits violate the right to be free from unreasonable searches under Article I § 13 of the California Constitution. The Ninth Circuit concluded that there was no support in the California Constitution for the hypothesis that it provides greater protection than the Fourth Amendment in the context of the case, and thus declined to hold the program unconstitutional. Finally, a similar argument under the California Constitution — that P100 violated the right to privacy under Article I § 1 — was also rejected as unsupported. The Ninth Circuit did not, however, dismiss all of the claims, and as a result of the litigation, the County agreed that it would no longer conduct P100 searches for those who applied only to CalFresh. After the Sanchez litigation, P100 was limited to CalWORKs applicants.

When Did Fish Get Involved?

For the second case, Villafana v. Cty. of San Diego, filed in the San Diego Superior Court in 2018, the ACLU teamed up with Fish attorneys from our local office in representing the plaintiffs. Unlike the Sanchez case, Villafana was challenging P100 as violating California Government Code § 11135 which prohibits state-funded programs from discrimination based on race, sex, and other characteristics, by disparate treatment and disparate impact. Plaintiff's allegations in this case centered on P100's imposed hardships for a CalWORKs applicant pool that was disproportionately composed of women and people of color. The main point of dispute between the parties related to what should be treated as a base or reference population as part of the disparate impact analysis. The plaintiffs argued that it should be the entire population of the County, which could at any time be in need of the cash assistance program, while the County contended that it should be the pool of actual applicants for CalWORKs. Ultimately, the lower court agreed with the County, and the California Court of Appeal affirmed. The California Supreme Court declined to review.

What Ultimately Led to P100's Demise?

In April 2021, a motion to take down P100 was brought before the San Diego County Board of Supervisors, citing the very same issues with the program that were brought to public attention by the ACLU's and Fish's legal efforts throughout the years. The San Diego Chapter of the ACLU organized hundreds of people to provide telephonic testimony in support of the motion. On April 2, 2021, the board unanimously voted to finally end the P100 program, landing a great victory for the citizens of the county.

Who Was on the Fish Team Challenging the P100 Program?

The Fish team that worked shoulder-to-shoulder with the ACLU fighting against P100 comprised the late Craig Countryman, as well as Madelyn McCormick, James Yang, and me. Craig, a highly regarded attorney and a co-chair of Fish's appellate practice, originally brought this case to the firm and assembled the team to work on it. Throughout his legal career, Craig was very dedicated to pro bono practice, handling dozens of matters in an effort to help those in need. He also served on the board of directors of the San Diego Volunteer Lawyer Program, devoting his time to helping oversee the organization and recruiting others to do the same. Unfortunately, Craig passed away in 2019 after a long and heroic battle with cancer, and he never saw the eradication of P100, against which he fought so hard.

How Has This Case Impacted You Personally?

Throughout the years, I have worked on many pro bono matters, arguing immigration appeals before the Ninth Circuit and handling civil rights cases in state and federal courts. Commonly, pro bono cases are uphill battles, and this case — which was litigated for years at different court levels — was not an exception. I was happy to see that the Board of Supervisors recognized the negative impact of P100 on the County. Indeed, the Board's decision is another reminder that a positive social change may be achieved in various ways. I sincerely hope our case generated enough public discourse that made an impact on the Board's decision to end this unjust program.

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At Fish, we are committed to making pro bono work an integral part of our professional culture, and we strongly encourage all of our legal professionals to take on pro bono matters as a part of their professional lives. We back up this commitment by providing our attorneys with full hours credit for approved pro bono matters, and by assigning a principal-level attorney in each of our U.S. offices with the task of seeking out and publicizing local pro bono opportunities.