On appeal from the Superior Court, Appellate Division, whose opinion is reported at N.J. Super. (1988).
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein. For reversal -- None.
We accelerated this appeal, which challenges the five-month expiration date for a certain form of emergency assistance (EA) benefits established under the program of Aid to Families with Dependent Children (AFDC). We set forth below our reasons for not now disturbing the Commissioner's decisions on how best to implement this program to avert the homelessness of families with dependent children. The need for a prompt decision will make this a somewhat abbreviated discussion of the competing claims. Consequently, our opinion is not intended as a definitive exposition of all the complex legal questions attendant to the challenge; rather, we resolve only those issues that are necessary to our judgment.
In essence, the plaintiffs argue that an arbitrary (i.e., fixed) expiration date for the program of emergency assistance violates their right to shelter for their dependent children as set forth in N.J.S.A. 44:10-1 to -8 (the State AFDC program) and in Article I, section 1 of the New Jersey Constitution, which provides that "all persons," and therefore children such as these, "have certain natural and inalienable rights," including that of "obtaining safety and happiness."
The New Jersey Department of Human Services (DHS) answers that setting a one-hundred-fifty-day expiration date for EA benefits does not mean that plaintiffs will inevitably be
deprived of shelter. The Commissioner of the Department points to a variety of programs and initiatives that he has undertaken in cooperation with other agencies of state or county government to create a "safety net" of programs that will address the needs of virtually all of the claimants. In addition the Commissioner points to the fact that the Legislature and the Governor recently committed to the problem $6.8 million in new appropriations; the budget forecast is that during the fiscal year beginning July 1, 1988, total spending by federal, state, and county agencies for programs to aid the homeless will approach $49 million, as compared with an estimated total program cost of $28.9 million for EA in the last fiscal year. Finally, the Commissioner represented to us that where necessary he could grant individualized extensions of the EA program's limit to ease the transition of claimants into the other programs. In the face of these representations we hold that the disputed regulation is not facially, or as currently applied, inconsistent with the statutory charge of the Department. Furthermore, on the record before us the proof of the likelihood of damage is not sufficient to trigger whatever constitutional rights might otherwise be asserted.
This case concerns a small group of unfortunate families for whom emergency accommodations may be the last stop before the street. They are not the familiar single urban dwellers who seek shelter in bus or train stations when the street is inhospitable. Rather, they are drawn from that larger group of relatively intact families in cities and suburbs who receive some public assistance but not enough both to sustain decent housing and to meet their other basic needs. In his 1986 report (Ensuring the Needs of the Homeless), the Commissioner of the Department of Community Affairs (DCA) estimated this group to represent approximately fifty percent of those in need of shelter. Another thirty-five percent have experienced temporary setbacks in health or economic circumstances; a final
fifteen percent are the single men or women in the urban setting. Some understanding of the lives before us and of the programs in which they find themselves will be of assistance. In the words of Justice Brennan: "[I]n the bureaucratic welfare state of the late twentieth century, it may be that what we need most acutely is [to understand] * * * the pulse of life beneath the official version of events." Brennan, "Reason, Passion and the Progress of the Law," 42 The Record of the Association of the Bar of the City of New York 948 (1987) (quoted in Jiggets v. Grinker, 139 Misc. 2d 476, 528 N.Y.S. 2d 462, 468 (Sup.Ct. 1988)). For purposes of this appeal, we will refer to but a few lives of the original plaintiffs that demonstrate the "pulse of life" beneath the official version of events. The names of the people, but not the facts of their lives, have been changed.
Helen Heath was evicted from her Toms River apartment in 1987 when her husband failed to pay rent for two months while she was in the hospital. She is forty-four years old. Her parents are aged and cannot care for her. Her husband has since left her and her two teenage sons. She receives AFDC benefits for the two children. She wants a permanent home for them: "I search for housing every day. I constantly check the newspaper ads for rentals." To be sure, there is housing available, but the rents are usually between $550 and $650 per month. She receives $424 a month under the AFDC program. She is temporarily housed in an Ocean County hotel.
Mary Elmer had to leave an apartment to avoid exposing her two pre-school children to drugs in that environment. She searches for permanent housing in Newark, Linden, Orange, West Orange, and other urban areas. "I have been unable to locate safe and decent permanent housing I can afford." She is about to be evicted from a motel in Monmouth County. Rentals in Monmouth County "begin at $900 for a three-bedroom
apartment." Elsewhere she finds nothing less than $500. Her AFDC grant is $389 a month. She receives $150 in food stamps.
Antoinette Ellis is twenty-one years old; she lives in a Monmouth County motel. She may have herself to blame for many of her problems in that she was drug- and alcohol-dependent and "often moved from place to place." But her two children under two years of age must find shelter, clothing, and some incidentals out of $425 a month. Rents in the Elizabeth area where she wants to reside average between $450 and $500 per month. She receives $132 in food stamps.
Colleen Johnson is thirty-one years of age; she has three children. She lived in a barely habitable apartment in Newark. She could not stand to see her children exposed any longer to substandard housing conditions, but she could not find housing on her own. Her county agency placed her in a highway hotel in Monmouth County, New Jersey. She has no way to get around; there is no public transportation. Her children are taunted in their school district for being homeless. She sees no apartments for rent that are less than $600 per month. She receives $485 a month in AFDC benefits and $186 per month in food stamps.
These claimants do not want to perpetuate this system and live in one room in a highway hotel; the last thing in the world they want is to be isolated from family and friends. "Homelessness functions not as a freely chosen option but as a tragic, inexorable destiny." Connell, "A Right to Emergency Shelter for the Homeless Under the New Jersey Constitution," 18 Rutgers L.J. 765, 769 (1987) (footnote omitted). The problem arises primarily from the inexorable stress of a housing market that has outpaced their budgets. Everyone agrees on this point: "It is this structural problem of too little affordable housing that gives rise to most homelessness and that creates the need for emergency assistance in the State's AFDC program."
Report to the State Legislature by the Commissioner of the Department of Human Services dated March 10, 1988.
Before we address the legal issues, a brief review of the relevant programs is required. For this review we shall restate the descriptions set forth in several United States Supreme Court decisions.*fn1 The Federal Aid to Families with Dependent Children (AFDC) program is one of the oldest programs for aiding children. It was one of the four original "categorical assistance" programs established by the Social Security Act of 1935.*fn2
Title IV-A of the Social Security Act now establishes several different public aid programs under the general rubric of "Grants to States for Aid and Services to Needy Families with Children." In order to receive federal funds under any of the Title IV-A programs a State must adopt a "state plan for aid and services to needy families with children" that is approved by the United States Department of Health and Human Services (HHS), as meeting the requirements set forth in § 402 of the Act.
AFDC is the core of the Title IV-A system. As the Supreme Court observed in one of its earliest analyses of Title IV, AFDC is a categorical aid program, and "[t]he category singled out for welfare ...