Hurley v. Van Lare

• Decision Date: 05 August 1974
• Docket Number: 73 Civ. 699.,No. 72 Civ. 3423,72 Civ. 3423
• Citation: 380 F. Supp. 167
• Parties: Rose HURLEY, Individually and on behalf of her minor children, Doreen Hurley, et al., Plaintiffs, v. Barry VAN LARE, Individually and in his capacity as Acting Commissioner of the Department of Social Services of the State of New York, et al., Defendants. Annie TAYLOR, Individually and on Behalf of her minor, dependent child, Margaret Taylor, Charlotte Otey, Individually and on Behalf of her minor, dependent child, Kevin Otey, and on behalf of all other persons similarly situated, Plaintiffs, v. Abe LAVINE, Individually, and in his capacity as Commissioner of the New York State Department of Social Services, and James M. Shuart, Individually, and in his capacity as Commissioner of the Nassau County Department of Social Services, Defendants.
• Court: U.S. District Court — Eastern District of New York

380 F. Supp. 167

Rose HURLEY, Individually and on behalf of her minor children, Doreen Hurley, et al., Plaintiffs, v. Barry VAN LARE, Individually and in his capacity as Acting Commissioner of the Department of Social Services of the State of New York, et al., Defendants.

Annie TAYLOR, Individually and on Behalf of her minor, dependent child, Margaret Taylor, Charlotte Otey, Individually and on Behalf of her minor, dependent child, Kevin Otey, and on behalf of all other persons similarly situated, Plaintiffs, v. Abe LAVINE, Individually, and in his capacity as Commissioner of the New York State Department of Social Services, and James M. Shuart, Individually, and in his capacity as Commissioner of the Nassau County Department of Social Services, Defendants.

Nos. 72 Civ. 3423, 73 Civ. 699.

United States District Court, S. and E. D. New York.

August 5, 1974.

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The Legal Aid Society of Westchester County, White Plains, N. Y., for plaintiffs Hurley; Martin A. Schwartz, Lawrence S. Kahn, White Plains, N. Y., of counsel.

Nassau County Law Services Committee, Inc., Hempstead, N. Y., for plaintiffs Taylor and Otey; Leonard S. Clark, Hempstead, N. Y., of counsel.

Louis J. Lefkowitz, Atty. Gen. of N. Y., New York City, for defendants; Samuel A. Hirshowitz, First Asst. Atty. Gen., Constance B. Margolin, Judith Gordon, Asst. Attys. Gen., of counsel.

Before HAYS, Circuit Judge, and BAUMAN, and WEINSTEIN, District Judges.

WEINSTEIN, District Judge.

Plaintiffs complain on behalf of a class of some 10,000 that the New York State regulations automatically reducing aid to families with dependent children (AFDC) (42 U.S.C. §§ 601-644) if the recipient houses a noncontributing "lodger" are unlawful both on constitutional and statutory grounds. Separate civil rights actions were brought in the Southern and Eastern Districts of New York. 42 U.S.C. § 1983; 28 U.S.C. § 1343(3); Fed.R.Civ.P. 23.

In each action the District Court sustained plaintiffs' statutory claim without considering the constitutional issues. Hurley v. Van Lare, 365 F.Supp. 186 (S.D.N.Y.1973); Taylor v. Lavine (unreported), Slip Op. 73-C-699 (E.D. N.Y.1973). The Court of Appeals reversed and remanded the cases "for the convening of a three-judge court to consider the constitutional issues. . . . Taylor v. Lavine, 497 F.2d 1208, 1211, (2d Cir. 1974).

The actions have been consolidated for consideration of the constitutional issues by a three-judge court. 28 U.S.C. §§ 2281, 2284. Cf. Gaddis v. Wyman, 304 F.Supp. 717, 720 (S.D.N.Y.1969), aff'd per curiam sub nom. Wyman v. Bowens, 397 U.S. 49, 90 S.Ct. 813, 25 L.Ed.2d 38 (1970). It is urged that the New York State "lodger" regulations (1) create an irrebuttable presumption offensive to due process; (2) invade rights to privacy and free association; and (3) deny equal protection of the laws. For the reasons set forth below, we conclude that the regulations in question are unconstitutional.

The AFDC program was designed by Congress "to help maintain and strengthen life," and to encourage recipients to "retain . . . personal independence consistent with . . . care and protection" of dependent children. 42 U.S.C. § 601. As enforced, the state regulations are corrosive of these goals. The nation's generous spirit of concern for the poor, with its concomitant desire to equalize the developmental opportunity of a young generation of impoverished, has been thwarted. Unless checked there is a clear tendency in such regulations as are before us to strip welfare recipients of the last vestiges of their sense of personal worth, to force them, in words used to describe a group existing on the edge of extinction, to "live on as a people without life, without passion, beyond humanity." C. M. Turnbull, The Mountain People 295 (Simon & Shuster Touchstone ed. 1972).

I. FACTS

A. CHALLENGED REGULATIONS.

The federal AFDC program provides states with matching funds to assist the "needy child . . . who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent . . ." 42 U.S.C. § 606 (a). Among the New York regulations under which AFDC funds are distributed are the two challenged here — 18 N.Y.C. R.R. § 352.30(d), which reduces a recipient's shelter allowance if the recipient houses a noncontributing "lodger," and 18 N.Y.C.R.R. § 352.31(a)(3)(iv), which treats a man living with a female recipient but not married to her as a "lodger." These regulations read:

"A non-legally responsible for support of the aided persons relative or unrelated person in the household who is not applying for nor receiving public assistance shall not be included in the budget and shall be deemed to be a lodger or boarding lodger. . . . In the event a lodger does not contribute at least $15 per month, the family's shelter allowance including fuel for heating, shall be a pro rata share of the regular shelter allowance." 18 N.Y.C.R.R. § 352.30(d). Emphasis added.

* * * * * *

"When a female applicant or recipient is living with a man to whom she is not married . . . his available income and resources shall be applied in accordance with the following:

* * * * * *

"(iv) When the man is unwilling to assume responsibility for the woman or her children, and there are no children of which he is the acknowledged or adjudicated father, he shall be treated as a lodger in accordance with section 352.30(d)." 18 N.Y.C.R.R. § 352.31(a)(3).

Ostensibly New York enacted 18 N.Y. C.R.R. 352.30(d) pursuant to its duty under the federal AFDC program to determine a recipient's actual need by taking "into consideration any other income and resources of any child or relative claiming aid to families with dependent children." 42 U.S.C. § 602(a)(7). Aimed as it is at preventing state welfare funds from going where they are not needed, the regulation makes two alternative irrebuttable presumptions. First, it presumes that a recipient family able to have a noncontributing lodger needs less housing space for its own use and consequently needs less money to pay for less space. The second alternative presumption is that a recipient family able to house a noncontributing lodger — even if the family could not reasonably subsist in less space — somehow needs less money to pay its share of the rent. Apparently the rationale of this presumption is that the lodger could, should, and therefore would, pay his or her proper share of the rent if forced to by a reduction in the recipient family's shelter allowance, for it assumes — irrebuttably — that, at least if he is a male, a "lodger" has "available income and resources." 18 N.Y.C.R.R. § 352.31(a)(3) (iv).

Under the regulations no hearing to determine if, or how, a reduction will adversely affect particular dependent minor children can be had. There can be no hearing to decide whether in any particular case the presumptions are contrary to the facts. Whether the "lodger" be a sister, a child, or adult companion who helps hold the family unit together, whether this "lodger" can or will contribute towards the rent, and whether the "lodger's" presence saves the state money are all undisputable under the regulations.

B. THOSE AFFECTED BY THE REGULATIONS

The backgrounds of the named plaintiffs have been sufficiently set forth in prior published opinions. See 497 F.2d 1208 (2d Cir. 1974); 365 F.Supp. 186 (S.D.N.Y.1973). Local welfare agencies have reduced or are threatening to reduce the shelter allowances of AFDC recipients on the basis of these regulations: Mrs. Hurley and her three children from $150 to $115 because she lived with a man not her husband; Mrs. Taylor and her two children from $165 to $110 because she allowed her incapacitated sister to stay with her; and Mrs. Otey and her minor son from $145 to $96.65 because she allowed an adult unemployed son to sleep in the apartment.

Typical of the factual situations which welfare officials must ignore in applying the mechanical regulation is that related by Mrs. D, who testified at the trial. She and her two minor children reside in Mount Vernon in an apartment characterized by Paul Davidoff, a distinguished urban planner, as "far below a modern standard for decent accommodations for a family of that size." They have received AFDC assistance for approximately the last six and one-half years. She has not seen or heard from her husband since July, 1965; when she attempted to obtain a divorce Legal Aid could not go forward with the case, she testified, because she could not afford necessary disbursements. Over the past six years Mrs. D has been hospitalized some dozen times for surgical and other treatment. Because of her illnesses and periods of convalescence, plaintiff has not been able to carry out many family and household functions; obviously she is not well and seems aged beyond her years.

A male friend of the family has taken up residence in the D household. During Mrs. D's periods of illness and convalescence, he took care of her and her children, shopped for food, washed the family's clothes, cooked the family's meals, cleaned the house and performed other household tasks. He, himself, has various disabilities including extreme high blood pressure and he is presently unable to work. He is under no legal obligation to support the family and, in fact, has provided no financial support. Because of his presence local welfare officials informed Mrs. D:

"Quality control reports of 1/15/72 indicated that Mr. M. resides with you and your family. Therefore, we are prorating your rent ¾ of $175=$131.40."

The proposed reduction in Mrs. D's public assistance grant would leave the mother and two children with insufficient funds to purchase those necessities of life — food and clothing — requisite for a minimum standard of living.

Whether the state would save money were the male to leave — or himself successfully apply for a welfare grant, as he probably could — is not clear....