The opinion of the court was delivered by: MEANOR
The parties have filed cross motions for summary judgment. Following the filing of briefs directed to the issues raised in these motions, as well as to the issue of this court's jurisdiction, arguments were heard and decision was reserved. Due consideration having been given to the arguments advanced by the parties, the court has concluded that the plaintiff's motion for summary judgment will be denied on the grounds that the state regulation in question is not in conflict with the federal statute and regulation. For the reasons that appear below, judgment will be entered in favor of defendants Young and Riti.
The facts material to decision are not in dispute. The first named plaintiff, Julia Gonzalez, resides in Jersey City, New Jersey with her two children, Luis and Manuel. She and her children are impoverished. Each month Julia Gonzalez receives a check from the Hudson County Welfare Board in the amount of $235. This check is issued pursuant to the Aid to Families with Dependent Children program, hereinafter AFDC. 42 U.S.C. § 601 et seq. AFDC is funded in major part by the federal government and to a lesser extent by state and local authorities. The AFDC check lists Ms. Gonzalez and her son Manuel, age 10, as beneficiaries. Luis Gonzalez, who is retarded is the recipient of $157 per month from the Social Security Administration's disability program. This check is made payable to Ms. Gonzalez as the protective payee for Luis. Thus, the Gonzalez family receives a total of $392 per month.
The following day, plaintiff went to the Hudson County Welfare Board to request a grant of emergency assistance in the amount of $163, $65 for rent and $98 for the utility bill. The request was refused by the case worker, Nina Fondi. Ms. Gonzalez did, however, receive a quantity of food stamps from Miss Fondi. The denial of emergency assistance benefits was based upon a determination by the case worker and her administrative supervisor that Ms. Gonzalez did not qualify under the provisions of § 4810 of the New Jersey Public Assistance Manual for a grant of emergency assistance. Miss Fondi made phone calls to Ms. Gonzalez's landlord and to the utility company and had received verbal assurances that the utilities would not be turned off and that the landlord would take no steps to evict the Gonzalez family.
Ms. Gonzalez then retained an attorney and made a written request for an emergency grant to the Hudson County Welfare Board on February 25, 1976. The Board thereafter responded and denied the application. Subsequently, plaintiff's attorney wrote to Mr. G. Thomas Riti, the Director of the New Jersey Division of Public Welfare, requesting an accelerated hearing in regard to the County Board's denial. Apparently, this letter was not answered.
Plaintiff commenced this action on March 11, 1976. On the same day, the court signed an order to show cause, making it returnable April 12, 1976. This order directed the defendants to answer within 20 days of service upon them and to be prepared on April 12, 1976 to show cause why the following orders should not issue:
(a) an interlocutory injunction mandating defendant James F. Young to pay Julia Gonzalez the sum of $163 immediately;
(b) an order certifying the proposed plaintiff class, and
(c) an order permitting the named plaintiffs to proceed in forma pauperis.
The order to show cause additionally specified the manner in which the defendants were to be served with process.
The verified complaint is drawn in two counts. The first count alleges that James F. Young's denial of emergency assistance benefits to Ms. Gonzalez unlawfully deprived her of a right secured to her under federal statute and regulation, 42 U.S.C. § 606(e)(1) and 45 C.F.R. § 233.120. It further alleges that Young's denial was also a violation of state law. The second count is directed at Mr. Riti and alleges that his failure to implement any meaningful administrative review procedures in regard to emergency assistance payments has and continues to "infringe upon, obstruct and effectively deny" AFDC recipients emergency assistance payments which are available to them under federal law.
By way of relief, the complaint seeks a preliminary injunction compelling defendant Young to pay the plaintiff the $163 she seeks in emergency assistance, a declaratory judgment finding that defendant Young has violated and continues to violate plaintiff's rights under federal law and a permanent injunction restraining Young from refusing emergency assistance benefits in the future. Furthermore, the complaint seeks declaratory and injunctive relief against defendant Riti.
Both of the defendants filed timely answers to the complaint and a hearing was held on the return date of the order to show cause. By letter opinion dated April 15, 1976, the court denied the application for preliminary injunctive relief against defendant Young. The court said at that time, "it is clear from the facts before the court that neither Public Service nor the landlord has undertaken steps to discontinue utility service or to evict. Thus, plaintiff is not faced with immediate and irreparable harm." The court also made a preliminary determination that the New Jersey Administrative Code provisions governing the issuance of emergency assistance benefits do not conflict with federal law. The court declined to consider the question of class certification at that time, finding that the matter had not been adequately presented and that there was not sufficient information before the court "upon which to found a decision ...