On appeal from New Jersey Department of Human Services.
Pressler, Bilder and Skillman. The opinion of the court was delivered by Skillman, J.A.D. Bilder, J.A.D., concurring. Pressler, P.J.A.D., dissenting.
These appeals challenge the validity of N.J.A.C. 10:82-5.10(d)(1)(vii), which places a five month limit on the period a recipient of Aid to Families with Dependent Children (AFDC) can receive emergency shelter assistance. One appeal was filed by the Public Advocate on behalf of himself and twelve recipients of AFDC, who alleged that the impending termination of their emergency shelter assistance would place them in imminent danger of homelessness. The second appeal was filed by the State Office of Legal Services and seven county Legal Services offices on behalf of fourteen AFDC recipients, who also alleged the termination of their emergency shelter assistance under the challenged regulation would render them homeless.
Appellants filed motions for a stay pending appeal of the five month limitation on emergency shelter assistance, which this court denied by a two-to-one vote. Appellants then filed motions for a stay pending appeal with the Supreme Court. The Supreme Court granted the motions on May 3, 1988, with three members of the court dissenting. The Court's orders stayed the termination of emergency shelter assistance for 30 days
and directed this court to decide the merits of the appeals prior to the expiration of the 30 day period.
Because the appeals challenge the same administrative regulation, we hereby consolidate them on our own motion.*fn1
The emergency assistance benefits program involved in this appeal supplements the federal AFDC program authorized by Title IVA of the Social Security Act, 42 U.S.C. § 601 et seq. The AFDC program was enacted
For the purpose of encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation and other services, as far as practicable under the conditions in such State, to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection. . . . [42 U.S.C. § 601; emphasis added].
Under the AFDC program "each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program." King v. Smith, 392 U.S. 309, 318-319, 88 S. Ct. 2128, 2134, 20 L. Ed. 2d 1118 (1968). Consequently, the "States have traditionally been at liberty to pay as little or as much as they choose, and there are, in fact, striking differences in the degree of aid provided among the States." Rosado v. Wyman, 397 U.S. 397, 408, 90 S. Ct. 1207, 1216, 25 L. Ed. 2d 442 (1970).
The payment of emergency assistance (EA) is authorized by 42 U.S.C. § 606(e). A state which participates in the AFDC program is not required to provide EA benefits, and if a state
elects to provide EA, it is not required to pay any specified level of benefits. See Blum v. Bacon, 457 U.S. 132, 102 S. Ct. 2355, 72 L. Ed. 2d 728 (1982); Quern v. Mandley, 436 U.S. 725, 98 S. Ct. 2068, 56 L. Ed. 2d 658 (1978).
There is no specific statutory authorization for the State of New Jersey to participate in the EA program. However, the Department of Human Services has properly construed N.J.S.A. 44:10-1 et seq. as an implied authorization for the State's participation in this program. Cf. Maticka v. City of Atlantic City, 216 N.J. Super. 434, 446 (App.Div.1987). Such authorization has been confirmed by the inclusion of a separate line item appropriation for EA in the Annual Appropriations Act enacted by the Legislature. L. 1987, c. 154 (5 N.J.Sess.Law Serv. (1987) at 280 (West)).
The present version of the State's EA regulations was adopted on November 16, 1987, following a comprehensive review of those regulations after the decision in Maticka v. City of Atlantic City, supra. In that case, the Public Advocate challenged a 90 day limitation on emergency shelter assistance contained in the prior version of N.J.A.C. 10:82-5.10(c) and also a requirement imposed by administrative directive that a need for emergency shelter must be "sudden and unexpected," rather than a situation for which the recipient had an "opportunity to plan." The court held that the Department's administrative interpretation of its regulations was invalid, insofar as it disqualified recipients who were aware of impending homelessness but were unable to avert the emergency before it occurred. 216 N.J. Super. at 451-453. The court further concluded that it could not definitively assess the validity of 90-day limitation on the receipt of emergency shelter assistance by AFDC recipients
until the Department itself, by way of a comprehensive public hearing, has had the opportunity to reassess that limitation in terms of the scope and nature of the homelessness problem, the existence of all other resources for homeless families and the manner in which and by whom these resources are coordinated and actually made available, the financial impact of extending emergency assistance beyond 90 days, and a consideration of whether or not there are any
other appropriate and reasonable conditions or limitations which could or should be imposed in determining eligibility or continued eligibility for assistance. [216 N.J. Super. at 455].
Therefore, it remanded the matter to the Department of Human Services "for a rule-making hearing both on the effect and consequence of the 90-day limit of N.J.A.C. 10:82-5.10(c)." Id. at 456; see also Rodgers v. Gibson, 218 N.J. Super. 452 (App.Div.1987), which reached essentially the same conclusions as Maticka with respect to the regulations governing the program of emergency shelter assistance for General Assistance recipients.
In accordance with this remand, the Department of Human Services conducted "fact finding" hearings at three locations on March 19, 1987. After those hearings, the Department proposed new regulations to substantially expand the EA program, which included an authorization for two one-month extensions of the initial 90 day limitation on the receipt of emergency shelter assistance. The Department estimated that this expansion of the EA program would cost an additional $8.7 million annually, of which $2 million would come from new State appropriations, 19 N.J.R. 1174. The Department held hearings with respect to the proposed new regulations at three different locations on July 23, 1987. Thereafter, the Department made certain changes in the proposed regulations, which were adopted in final form effective November 16, 1987. N.J.A.C. 10:82-5.10.
Under the amended regulations, there are now three kinds of emergencies in which EA is available: (1) a fire, flood or other similar disaster which results in the homelessness of an eligible family; (2) a pending or actual eviction, a mortgage foreclosure, or other circumstances resulting in the loss of a permanent shelter, provided the recipient family demonstrates a lack of realistic capacity to plan for substitute housing; or (3) an imminent placement of children in foster care due to the family being subjected to a serious health or life threatening situation because of the lack of adequate shelter. N.J.A.C. 10:82-5.10(c).
Emergency assistance may consist of special allowances for food, clothing, housing, furnishings and child care. N.J.A.C. 10:82-5.10(d)(2)(3)(4) and (5). However, the most significant kind of EA is shelter. Under the new regulations, emergency shelter assistance now may take the form of payment of as much as three months retroactive rental, mortgage or utility costs, in order to prevent eviction or foreclosure. N.J.A.C. 10:82-5.10(c)(2)(i). Other forms of emergency shelter assistance include grants to pay expenses for establishing a new home, such as security deposits for rent and utilities, advance rent, N.J.A.C. 10:82-5.10(d)(1)(iii), and moving expenses, N.J.A.C. 10:82-5.10(d)(1)(iv). Where an emergency causes a recipient to become homeless, emergency shelter assistance involves placement in an emergency shelter, N.J.A.C. 10:82-5.10(d)(1), generally a hotel or motel. Such assistance may be provided for up to three months, N.J.A.C. 10:82-5.10(d)(1), during which time the recipient, with the aid of the county welfare agency, has a continuing responsibility to seek permanent shelter. N.J.A.C. 10:82-5.10(d)(1)(v); N.J.A.C. 10:82-5.10(d)(6). If permanent living arrangements cannot be obtained during the three month period, emergency shelter assistance may be continued for an additional two months. N.J.A.C. 10:82-5.10(d)(1)(vii).*fn2 Thus, the maximum period during which emergency shelter assistance may be provided is five months.*fn3
Appellants do not challenge the eligibility criteria for EA or the form in which such assistance is provided. Appellants challenge only the five month limitation on such assistance.
These challenges are based entirely on State law. Appellants do not contend that the five month limit on emergency shelter assistance violates 42 U.S.C. § 606(e) or any other federal statute or regulation.*fn4 Nor do appellants contend that this limitation violates any provision of the United States Constitution. In not relying on federal constitutional grounds, appellants were undoubtedly mindful of statements by the Supreme Court of the United States that "the intractable economic, social, and even philosophical problems presented by public assistance programs are not the business of this Court" and that "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 myriads of potential recipients." Dandridge v. Williams, 397 U.S. 471, 487, 90 S. Ct. 1153, 1163, 25 L. Ed. 2d 491 (1970); see also Jefferson v. Hackney, 406 U.S. 535, 545-551, 92 S. Ct. 1724, 1730-1734, 32 L. Ed. 2d 285 (1972); Lindsey v. Normet, 405 U.S. 56, 74, 92 S. Ct. 862, 874, 31 L. Ed. 2d 36 (1972).
Appellants challenge the validity of the five month limitation of emergency shelter assistance on three alternative grounds. First, appellants contend that the statute governing the AFDC program, N.J.S.A. 44:10-1 et seq., mandates the provision of shelter to every recipient, and that the termination of emergency shelter assistance violates this mandate. Second, appellants contend that the five month limitation on emergency shelter assistance is arbitrary and capricious because it conflicts with the legislative policy of preventing homelessness. Finally, appellants contend that the time limitation on emergency shelter assistance violates Article I, paragraphs 1 and 2, of the New
Jersey Constitution. We reject each of these contentions and therefore affirm the validity of the Department's regulations which impose a five month limitation on emergency shelter assistance.
Appellants' statutory argument rests upon N.J.S.A. 44:10-1(a), which is a subsection of the definitions section of the statute authorizing New Jersey's participation in the AFDC program. This section provides:
(a) "Aid to families with dependent children" means the assistance and other services to be extended under this act to or for eligible dependent children and the parents and relatives with whom they are living, for the following purposes:
(1) To provide for the care of eligible dependent children in their own homes or in the homes of relatives, under standards and conditions compatible with decency and health,
(2) To help maintain and strengthen family life,
(3) To help such parents or relatives to attain the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection, and
(4) To provide for the care of a dependent child whose parents have been denied assistance under the provisions of section 2.
N.J.S.A. 44:10-1(a) does not by itself impose any obligation upon the Department of Human Services; it only defines "aid to families with dependent children." The State's obligation to participate in the AFDC program is imposed by N.J.S.A. 44:10-3. This section provides:
The Commissioner of Human Services is authorized, directed and empowered to issue, or to cause to be issued by the appropriate departmental officers or agencies, all necessary rules and regulations and administrative orders, and to do or cause to be done all other acts and things necessary to secure for the State of New Jersey the maximum Federal financial participation that is available with respect to a program of aid to families with dependent children and otherwise to accomplish the purposes of this act . . .
N.J.S.A. 44:10-3 then enumerates eleven purposes of the Act in lettered subparagraphs. Our Supreme Court described the more significant of those purposes as follows:
that welfare programs be in effect in all counties; that assistance be furnished with reasonable promptitude; that all resources and income be considered in determining need except that, as discussed earlier in this opinion, there shall be
disregarded the amounts required by federal law as a condition of federal participation; that appropriate services be made available for strengthening family life for children; and that appropriate services and cooperative arrangements be provided with other agencies so that maximum opportunities for training and employment be available to welfare recipients. [ Motyka v. McCorkle, 58 N.J. 165, 178 (1971)].
Although N.J.S.A. 44:10-3 does not restate the statutory goals set forth in N.J.S.A. 44:10-1(a), we have no doubt that the Act should be administered in a manner designed to achieve both sets of statutory goals.
However, this does not mean that an administrative regulation or other administrative action which falls short of full realization of these goals is invalid. The administration of the AFDC program, like other governmental programs, is subject to the limitations imposed by the level of annual legislative appropriations for the program.*fn5 If the appropriations for the AFDC program are insufficient to satisfy all the vital needs of recipients, the Department still must adopt a structure of benefits which can be provided within those appropriations.
Our courts have frequently acknowledged these limitations upon the full realization of the goals set forth in N.J.S.A. 44:10-1 et seq. In Bailey v. Engelman, 56 N.J. 54 (1970), the Court rejected a claim that the State is required to make an individualized determination of the budget needs of each recipient in administering the AFDC program. The Court stated that "[a]ppellant correctly concedes the State is not required to meet the total needs of a recipient of aid." 56 N.J. at 57. In Motyka v. McCorkle, supra, the Court rejected an argument that the State was required under N.J.S.A. 44:10-1 et seq. to provide the same level of benefits in the wholly state funded program of
assistance for two parent families with insufficient income as in the AFDC program for single parent families with dependent children. The Court rejected arguments that N.J.S.A. 44:10-1 imposes specific mandates with respect to the State's assistance programs, and it emphasized that state administrative officials must set benefits levels within the limits imposed by legislative appropriations:
[T]he legislative approach was to restrict the imposition of specific mandates to those considered by it to be absolutely essential, and to entrust the administrative agency with comprehensive powers designed to enable it to operate equitably and reasonably under general standards and within the legislative appropriation.
In N.J.S.A. 44:10-1 et seq. the Legislature set forth general goals which the Division [of Public Welfare] has conscientiously sought to achieve within the limits of available finances. [58 N.J. at 176-177].
In Matter of Petitions for Rulemaking, 223 N.J. Super. 453 (App.Div.1988), the court held that the State must establish a "standard of need" based on actual living costs in New Jersey. However, the court also recognized that the actual "level of benefits" paid to recipients is determined by the level of legislative appropriations:
The extent to which funds are to be made available to meet the standard of need under New Jersey statutes is a political question to be decided by the representatives of the people. [223 N.J. Super. at 460].
Cf. Texter v. Dep't of Human Services, 88 N.J. 376, 386 (1982). Therefore, we reject appellants' argument that the goals of the AFDC program identified in the statutory definition of "aid to families with dependent children" constitutes a legislative mandate to provide any specific level or form of benefits, including open-ended emergency shelter assistance designed to prevent homelessness.*fn6
Moreover, even where the Legislature has mandated a particular program, it is subject, insofar as it requires appropriations, to the Annual Appropriations Act. Karcher v. Kean, 97 N.J. 483 (1984); City of Camden v. Byrne, 82 N.J. 133 (1980). "The Constitution has placed the State's conscience in these matters in the Legislature and it is that branch of government which must weigh the interests of its citizens at all levels of government." City of Camden v. Byrne, supra, 82 N.J. at 158. Therefore, even if appellants were correct in reading N.J.S.A. 44:10-1(a) to create a "substantive right" to adequate shelter, that right would still be subject to the availability of sufficient appropriations.
Although appellants concede that this court cannot force the Legislature to appropriate additional funds, they suggest that the court can require the Department to seek supplemental appropriations from the Legislature or to transfer funds appropriated for other programs in order to provide an emergency shelter assistance program of unlimited duration. However, since N.J.S.A. 44:10-1(a) does not require any particular form of AFDC or EA program or any particular level of benefits, the Department has no statutory obligation to seek additional appropriations for these programs.
Beyond that, the courts lack the power to require the executive branch of government to seek appropriations. As stated by the Court in City of Camden v. Byrne:
Some plaintiffs also maintain that despite the responsibility of the legislative branch to enact appropriations and the inability of the courts to compel such
legislative action, the courts stand in a different posture vis-a-vis the Governor with respect to his constitutional and statutory responsibilities over State expenditures. The Governor is statutorily authorized to "examine and consider all requests for appropriations" and to "formulate . . . budget recommendations" to be forwarded to the Legislature for its consideration and ultimate approval. N.J.S.A. 52:27B-20. Although the power to expend and actually appropriate monies from the State treasury is reserved exclusively to the Legislature, see N.J. Const. (1947), Art. VIII, § II, par. 2, the Governor does have a constitutional role. He may formally object to any item or items included in an appropriation bill by exercising his line-item veto, thereby excising that item or items from the bill. . . . The Governor's statutory authority to propose the State budget and his constitutional power to exercise a selective veto over legislative appropriations reflects his significant responsibilities over the State's fiscal affairs and are an important aspect of the centralization of state finances essential to efficient modern government operations. . . . Since these executive responsibilities are so clearly involved in the budget process, and since the ultimate constitutional responsibility for appropriations rests with the Legislature, the judiciary is with out authority to compel either the Legislature to make a specific appropriation or the Governor to recommend or approve one. [82 N.J. at 149-150].
While the Camden case involved the Governor's role in the appropriations process, we see no constitutional or statutory distinction between the Governor's role and that of the members of his cabinet. Indeed, a cabinet officer's role in the budget process is completely subordinate to that of the Governor. Department heads only make requests for appropriations, which the Office of Budget Management reviews and transmits to the Governor with its findings, comments and recommendations. See N.J.S.A. 52:27B-14, 16 and 19. It is the Governor who then formulates a single proposed state budget which is submitted to the Legislature. See N.J.S.A. 52:27B-20; N.J.S.A. 52:9H-1. Moreover, any proposed transfer of appropriated funds by a cabinet officer is subject to statutory control by other executive and legislative officials. Thus, any transfer in excess of $200,000 must be approved by both the Director of the Division of Budget and Accounting and the Legislative Budget and Finance Officer. L. 1987, c. 154 (5 N.J.Sess.Law Serv. (1987) at 396-397 (West)). Therefore, the judiciary cannot order a department head to make a request for an appropriation or to transfer funds anymore than it can order the Governor to
include a recommendation for an appropriation in his proposed budget.
Accordingly, we reject appellants' argument that N.J.S.A. 44:10-1(a) obligates the Department of Human Services to grant emergency shelter assistance of unlimited duration, regardless of the level of EA appropriations and regardless of the other ...