it is concerned with specifics of the Program's operation.
When an applicant applies for AFWP assistance, that family's needs are figured according to family size, ages, etc. From that figure is subtracted the family's adjusted gross income, which is defined as the gross income of all employed individuals within the family less the first $60.00 earned by each such member, disregarding the income of a minor child under sixteen or under eighteen if he or she is attending school on a full time basis. The plaintiffs contend that the $60.00 may not be enough to take into account withholding taxes, social security taxes, court-ordered support payments etc., and, if not, that family will not receive enough assistance to meet its need. By the State assuming that it will be enough, say the plaintiffs, it is creating an irrebuttable presumption in violation of the Due Process Clause of the Fourteenth Amendment.
The plaintiffs rely on cases such as Heiner v. Donnan, 285 U.S. 312, 52 S. Ct. 358, 76 L. Ed. 772 (1931); Schlesinger v. Wisconsin, 270 U.S. 230, 46 S. Ct. 260, 70 L. Ed. 557 (1926); Hoeper v. Tax Commission, 284 U.S. 206, 52 S. Ct. 120, 76 L. Ed. 248 (1931); and Wieman v. Updegraff, 344 U.S. 183, 188, 73 S. Ct. 215, 97 L. Ed. 216 (1952), which are cases saying that the government cannot constitutionally take away tax money or public employment by means of conclusive presumptions. Quoting from their brief, the plaintiffs' argument is: "If the government cannot constitutionally take away tax money or public employment by means of conclusive presumptions, then, a fortiori, it cannot by the same means take from needy children the bare subsistance provided by AFWP".
This argument must fail for a number of reasons. First, there is a difference between a taking situation, such as taxes or loss of public employment, and a giving situation, such as welfare. This might be different if there was a Constitutional right to welfare, which there is not, Rothstein v. Wyman, 303 F. Supp. 339, 346 (S.D.N.Y. 1961), and even if so, there would also have to be a Constitutional right that the state grants full minimum needs to each recipient. This is not true even where the state is participating in federally funded programs. Rosado v. Wyman, 397 U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970). In Rosado, supra, the court said that there was no requirement, even under statutory law, that the states had to even attempt to make grants equalling 100% of need. Thus even if the claimed expenses did equal more than $60.00 and the minimum needs of a recipient was therefore not met, no constitutional requirement would be violated.
Secondly, if the $60.00 income disregard was to be considered an irrebuttable presumption in violation of due process, then any averaged budget figure could be so considered. For example, if a budget manual called for giving a family of four $100 per month for food, some families of that size may not be able to eat on that amount, so that could be called an irrebuttable presumption in violation of due process of law. However, the court in Rosado, supra, specifically sanctioned the process of averaging even though "such averaging may affect some families adversely and benefit others". 397 U.S. at 419, 90 S. Ct. at 1221.
In Amos v. Engelman, 333 F. Supp. 1109 (D.N.J.1970), (Three Judge Court) aff'd 404 U.S. 23, 92 S. Ct. 181, 30 L. Ed. 2d 143 (1971) one of the claims made against the welfare statute there under attack was that the State, as a participant in a federal program, was required by Federal law to allow AFDC families to deduct from income "any expenses reasonably attributable to the earning of any such income".
New Jersey allowed a flat $50.00 as an employment expense deduction, which was attacked as being unreasonable, since some families had larger employment expenses. The Court held that it was reasonable under the statute and that Rosado, supra, allowed averaging. Ability to average applied both to components of need and employment expenses. It also would seem to apply to deductions from gross income, if there was such a statutory requirement here. But, as the AFWP is totally state financed, there is not even that consideration.
In Amos, supra, the court never even considered the flat deduction from a constitutional standpoint, presumably because no substantial constitutional question was presented. Count 8 therefore similarly raises no constitutional question of merit.
In rejecting Counts 7, 8 and 10 the Court makes no judgment as to the advisability of all parts of N.J.S. 44:13-1 nor do we say that improvements could not be made in the classifications under that Act. As the Supreme Court said in Dandridge, supra, as re-emphasized in Jefferson, supra :
"We do not decide today that the (state law) is wise, that it best fulfills the relevant social and economic objectives that (the state) might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court . . . (The) Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients." 397 U.S. at 487, 90 S. Ct. at 1163, 25 L. Ed. 2d 491
An Order will be submitted by the defendants in conformity with this Opinion.