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ESSEX CTY. WELFARE BD. v. COHEN

March 19, 1969

The ESSEX COUNTY WELFARE BOARD, a body corporate and politic of the State of New Jersey, Philip K. Lazaro, Josephine Woods, and Edna Greenleaf, Petitioners,
v.
The Honorable Wilbur J. COHEN, Secretary, United States Department of Health, Education and Welfare, Respondent



The opinion of the court was delivered by: WHIPPLE

The petitioners in this action are: (1) The Essex County Welfare Board (Board), established to carry out all forms of assistance programs, more specifically the plan of Aid to Families With Dependent Children (AFDC), in the County of Essex, State of New Jersey; (2) Philip K. Lazaro, Director, Essex County Welfare Board, as a "citizen and taxpayer;" (3) Josephine Woods and Edna Greenleaf, presently receiving assistance through the Board for themselves and their children (each has four) under the AFDC program based upon the continued absences from home of a parent. The respondent is Wilbur J. Cohen, Secretary of the United States Department of Health, Education and Welfare (HEW) as of the date of the institution of this action; he is vested by federal law with implementing the federal assistance programs, more particularly the AFDC plan.

 The American Civil Liberties Union of New Jersey was granted leave to file an appearance in support of the petitioners' claim. None of the parties objected.

 The legislation attacked in this complaint had its birth on December 15, 1967, when the Congress adopted certain amendments to Title IV of the Social Security Act, *fn1" which amendments became Pub.L. 90-248 (81 Stat. 821). Section 208(b) of Pub.L. 90-248 provides as follows:

 
"(b) Section 403 of such Act [Social Security Act of 1935, as amended] is further amended by adding at the end thereof the following new subsection:
 
'(d) Notwithstanding any other provision of this Act, the average monthly number of dependent children under the age of 18 who have been deprived of parental support or care by reason of the continued absence from the home of a parent with respect to whom payments under this section may be made to a State for any calendar quarter after June 30, 1968, shall not exceed the number which bears the same ratio to the total population of such State under the age of 18 on the first day of the year in which such quarter falls as the average monthly number of such dependent children under the age of 18 with respect to whom payments under this section were made to such State for the calendar quarter beginning January 1, 1968, bore to the total population of such State under the age of 18 on that date.'"

 The effective date of the amendment was changed to June 28, 1968 by Pub.L. 90-364 (42 U.S.C.A. § 603(d)(1)).

 Petitioners assert that the AFDC freeze is unconstitutional for the following reasons: 1) it is violative of due process; 2) it constitutes a denial of the equal protection of the laws; 3) the freeze is an unconstitutional bill of attainder; 4) the freeze violates the limitations imposed on the federal spending power by Article 1, Section 8 of the Constitution; 5) the freeze will unconstitutionally impede the right of citizens to freedom of interstate travel.

 The petitioners pray that this court declare Section 208(b) of Pub.L. 90-248 unconstitutional and void under the Fifth, Ninth, Tenth and Fourteenth Amendments to the United States Constitution, that the court issue a preliminary and permanent injunction restraining and preventing the respondent from implementing Section 208(b) of Pub.L. 90-248 in his administration of Title IV of the Social Security Act, and restraining and preventing respondent from requiring the various states to implement Section 208(b) of Pub.L. 90-248 in their state-level administration of AFDC plans as a condition of continued federal financial participation therein.

 The petitioners also sought the convention of a statutory court of three judges. The issue is moot, a three-judge court having been convened by order of the Chief Judge of this Circuit, pursuant to 28 U.S.C. § 2284.

 The respondent moves to dismiss the complaint on several grounds. One ground urged by the respondent is that the three-judge court should dissolve itself and remit the case to a single District Court Judge. We disagree. The pleadings clearly demonstrate the existence of substantial questions of constitutionality. Mosher v. City of Phoenix, 287 U.S. 29, 53 S. Ct. 67, 77 L. Ed. 148 (1932); Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 53 S. Ct. 549, 77 L. Ed. 1062 (1933); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962); Ex Parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152 (1933).

 The respondent also contends that the petitioners do not have standing to maintain this action. The petitioner first named in the action is the Essex County Welfare Board. The Board possesses status to sue and be sued, *fn2" and has supervision of relief and the settlement of the poor. *fn3" The respondent argues that, pursuant to 42 U.S.C. § 602(a)(3), *fn4" the New Jersey Department of Institutions and Agencies, and not the Essex County Welfare Board, is the designated State agency for the formulation of policies implementing the Social Security Act at the State level and, as such, is the only State agency with the requisite interest in the AFDC program to maintain this action. It is unquestionable, however, that the Welfare Board at the County level is the conduit for the disbursement of federal funds, and certainly does not enjoy a merely passive existence in this area.

 In Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962) Mr. Justice Brennan propounded this question: "Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions?" Although Baker, supra, was a reapportionment controversy, and perhaps distinguishable on that basis from the present case, the analogy is present and the answer to Justice Brennan's question is yes, if for no other reason than the Board has an interest in the funds it will be required to expend, and in the communities which will be the recipients of those funds. What petitioner could more "sharply present" the issues, e.g., the deprivation of the equal protection of the laws to a certain group of people by the AFDC freeze, for the court's "illumination" and determination than the Board? Furthermore, the Supreme Court has long recognized certain litigants as having "standing only as representatives of the public interest." See Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 14, 62 S. Ct. 875, 882, 86 L. Ed. ...


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