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October 4, 1972

William T. CAHILL, in his capacity as Governor and Chief Executive Officer of the State of New Jersey, et al., Defendants

The opinion of the court was delivered by: FISHER

This is a class action brought by the New Jersey Welfare Rights Organization and others seeking to have segments of the New Jersey Law N.J.S. 44:13-1, entitled "Assistance to Families of the Working Poor" (AFWP), declared unconstitutional. It is part of a broader action in which plaintiffs additionally attack certain other revisions of New Jersey's Welfare law on statutory grounds. Both the AFWP and the other revisions which are the subject of this action went into effect on July 1, 1971. The suit was first filed on June 15, 1971 and was dismissed by a single District Judge after a hearing of four days. Appeal was then taken to the Third Circuit Court of Appeals, 448 F.2d 1247, which remanded the case to the District Court with instructions that a three-judge court be convened pursuant to 28 U.S.C. §§ 2281, 2284, to consider those parts of the complaint alleging constitutional infirmities. The three-judge court was convened on January 17, 1972 at which time witnesses were presented on behalf of each side.

The AFWP, a program designed to supplement the income of families with children when independent sources of income are inadequate for family support, is completely state financed *fn1" and as a result, is not subject to federal statutory controls but rather only to the requirements of the Federal Constitution. Rosado v. Wyman, 397 U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970). Plaintiffs thus make no statutory claims but deem the Program to be constitutionally unsound for four reasons: *fn2"

1. Eligibility for assistance under the AFWP Program requires that the family must be one in which both parents are in the home, are ceremonially married to each other, and in which both parents are the natural or adoptive parents of children in the home. This, the plaintiffs contend, arbitrarily, capriciously and without any rational basis, discriminates against needy illegitimate children who live with their parents. They further contend it is a discrimination against unmarried parents who live with their children, and as such is a violation of the Equal Protection Clause of the Fourteenth Amendment.
2. The AFWP as a program to supplement income to meet needs uses "adjusted gross income" as the figure representing the family's income prior to the receipt of aid. Adjusted gross income 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. This, the plaintiffs say, does not take into account withholding taxes, social security taxes, court ordered support payments, etc. By failing to consider those deductions individually, the law assumes that the $60.00 deduction is enough when it might not be. Thus, say the plaintiffs, the AFWP has created an irrebuttable presumption in violation of the due process clause of the Fourteenth Amendment to the United States Constitution.
3. Although admitting that New Jersey welfare regulations do provide procedural means whereby a recipient of AFWP has an opportunity to be heard prior to the reduction or termination of AFWP assistance, plaintiffs contend that these procedures are inadequate to comply with the requirements for due process as defined by the United States Supreme Court in Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970) and therefore violates the due process clause of the Fourteenth Amendment.
4. Plaintiffs argue that there is less likelihood that eligibility requirements for AFWP assistance will be met by Blacks than by Whites since there is more illegitimacy and non-ceremonially sanctioned marriages amongst Blacks than Whites. As a result, the plaintiffs contend, the eligibility requirements for AFWP work a de facto, if not de jure, discrimination against Blacks and are thus in violation of the equal protection clause of the Fourteenth Amendment of the Constitution of the United States.

 Jurisdiction for this Court to consider the merits of these contentions is found in 28 U.S.C. § 1343. *fn3"

 We will thus discuss Counts 7, 8 and 10 of the Complaint. Count 9, however, involving the procedural due process question in light of Goldberg v. Kelly, supra, was neither briefed nor argued by the parties. There has been a representation made to the Court that the State of New Jersey is in the process of altering its regulations in this area, and we will assume that this count has been dropped.


 In Count VII of the Complaint, plaintiffs argue that the AFWP requirement that only ceremonially married parents living with their natural or adoptive children can be eligible for assistance under the Act, is a violation of the constitutional mandate that laws be equally applied. This law, they claim, denies that protection both to illegitimate children and their unwed parents.

 No contention is made that the equal protection clause absolutely prohibits a state from making classifications of people and applying the law differently between them. The rules for measuring classifications under state social legislation against the equal protection requirement of the Federal Constitution, were summarized by the Supreme Court in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S. Ct. 337, 340, 55 L. Ed. 369 (1911), as follows:

"1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary.
2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality.
3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.
4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable ...

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