Bates v. Toia

• Decision Date: 29 December 1977
• Citation: 60 A.D.2d 459,401 N.Y.S.2d 298
• Parties: In the Matter of Charles W. BATES, as Westchester County Commissioner of Social Services, Appellant, v. Philip L. TOIA, as the New York State Commissioner of Social Services, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 298

401 N.Y.S.2d 298

60 A.D.2d 459

In the Matter of Charles W. BATES, as Westchester County Commissioner of Social Services, Appellant, v. Philip L. TOIA, as the New York State Commissioner of Social Services, Respondent.

Supreme Court, Appellate Division, Third Department.

Dec. 29, 1977.

As Amended Jan. 19, 1978.

David N. Brainin, County Atty., White Plains (Jonathan Lovett, White Plains, of counsel), for appellant.

Louis J. Lefkowitz, Atty. Gen., Albany (Diane L. DeFurio and Ruth Kessler Toch, Albany, of counsel), for respondent.

Before GREENBLOTT, J. P., and SWEENEY, KANE, MAHONEY and LARKIN, JJ.

MAHONEY, Justice.

Since the ultimate relief sought is a declaration of invalidity of a promulgated regulation, this proceeding should be converted to an action for a declaratory judgment (Cantlin v. State Liq. Auth., 16 N.Y.2d 155, 262 N.Y.S.2d 809, 210 N.E.2d 133, CPLR 103, subd. (c)).

Petitioner, Westchester County Commissioner of Social Services, seeks to have declared invalid the Department of Social Services regulations that allow grants under the Aid to Families with Dependent Children (AFDC) program to be given to pregnant women for their unborn children (see 18 NYCRR 352.30(c); 360.5(g); 369.1(b); 369.2(a)(1)(i); 369.3(a) and 369.3(a)(5)). The import of these regulations is that after the fourth month of a medically verified pregnancy, indigent women are permitted to claim recurring grants of public assistance under the AFDC program on behalf of their fetuses.

Special Term concluded that the respondent in the promulgation of the subject regulations had not proceeded illegally and therefore that the regulations were not invalid. We disagree.

In our view, Matter of Rankin v. Lavine, 41 N.Y.2d 911, 394 N.Y.S.2d 618, 363 N.E.2d 343, affg. 50 A.D.2d 1091, 376 N.Y.S.2d 355, 358, is not controlling or dispositive of the issues herein. Matter of Rankin was a proceeding pursuant to CPLR article 78 wherein petitioner sought to annul the respondent Commissioner's affirmance of the Monroe County Social Services Department's determination denying assistance for petitioner's unborn child. The Appellate Division, Fourth Department, reversed so much of Special Term's judgment as sustained the Commissioner's holding. In so doing, the Appellate Division relied upon the Commissioner's regulations (18 NYCRR 369.2(a); 360.5(g)) which state: "An unborn child shall be considered as a child living with one or both parents when the mother's pregnancy has been determined by medical diagnosis" and "In determining the net available income of a family household in which there is a pregnant woman, such family household shall be considered as increased by one person from the fourth month of pregnancy which has been medically verified." In affirming, the Court of Appeals stated, "(t)hus, the commissioner's argument that such coverage is not provided is conclusively and entirely negated by his own regulations. * * * The commissioner's remedy lies in his own regulations, not in the courts. Until then the department should comply with the existing final determination of the courts. (Matter of Jones v. Berman, 37 N.Y.2d 42, 52-53, 371 N.Y.S.2d 422, 428-429, 332 N.E.2d 303, 307-308)" (Emphasis supplied.) We would construe the cited portions of the Court of Appeals decision to mean that the Commissioner, as author of the regulations providing assistance to unborn children, cannot avoid their consequence. His remedy "lies in his own regulations", i. e., until such time as he changes or alters them, he is bound by them. In Matter of Rankin, the Commissioner did not attack his own regulations, he attempted to deny their existence. Matter of Rankin stands for the proposition that regulations promulgated by administrative officers pursuant to statutory authority (Social Services Law, §§ 20, 34) are enforceable against their authors until changed or struck down by the courts.

We are now faced with a direct attack on the subject regulations (18 NYCRR 369.2(a); 360.5(g)) premised on the ground that the Commissioner's acts in promulgating these regulations were an unlawful attempt to legislate (Matter of Mondello v. D'Elia, 39 N.Y.2d 978, 387 N.Y.S.2d 232, 355 N.E.2d 286) to the extent that such regulations expand the class of those eligible to receive AFDC benefits. The Social Services Law ( § 349, subd. (A)) provides that "Aid to dependent children shall be given to a parent * * * for the benefit of a child under eighteen years of age * * * ". It does not provide for aid to "unborn children". In Matter of Jones v. Berman, 37 N.Y.2d 42, 371 N.Y.S.2d 422, 332 N.E.2d 303, supra, cited in the Court of Appeals affirmance of Matter of Rankin, it is clearly stated that where a regulation is in conflict with the law, the regulation is invalid (id. at 51, 371 N.Y.S.2d at 427, 332 N.E.2d at 307). Unquestionably, such a conflict exists herein. Further evidence of the regulations' invalidity can be found in the Supreme Court's decision in Burns v. Alcala, 420 U.S. 575, 95 S.Ct. 1180, 43 L.Ed.2d 469 wherein it was held that unborn children were not encompassed within the Social Security Act's definition of dependent children, the Court premising its conclusions, inter alia, on the fact that Congress chose to provide Federal funding for prenatal health care in a separate title to the same Act. Burns also rejected the argument that the HEW policy of offering states an option to claim Federal matching funds for AFDC payments to pregnant women indicated that "dependent children" included unborn children. Concededly, the Burns court did not decide whether the HEW policy, relied upon in New York and several other states, was valid. The Supreme Court in Burns, as the Appellate Division and the Court of Appeals in Matter of Rankin, recognized the subject regulations and their applicability to the factual patterns before the respective courts, but refused to pass on their validity because, unlike here, they were not under attack. (See also Wisdom v. Norton, 507 F.2d 750, rehearing den. 520 F.2d 938.)

In sum, the respondent Commissioner in promulgating regulations (18 NYCRR 369.2(a); 360.5(g)) created rules out of harmony with the statute (Social Services Law, § 349) and thus acted beyond his authority (Matter of Harbolic v. Berger, 43 N.Y.2d 102, 400 N.Y.S.2d 780, 371 N.E.2d 499 (Nov. 21, 1977); Matter of Jones v. Berman, supra, p. 53, 371 N.Y.S.2d p. 429, 332 N.E.2d p. 308).

We, therefore, declare the subject regulations invalid.

The judgment should be reversed, on the law, without costs; and judgment directed to be entered declaring subdivision (c) of section 352.30, clause (i) of paragraph 1 of subdivision (a) of section 369.2 and subdivision (g) of section 360.5 of Title 18 of the New York Codes, Rules and Regulations to be invalid.

Judgment reversed, on the law, without costs; and judgment directed to be entered declaring subdivision (c) of section 52.30, clause (i) of paragraph 1 of subdivision (a) of section 369.2 and subdivision (g) of section 360.5 of title 18 of the New York Codes, Rules and Regulations to be invalid.

KANE and LARKIN, JJ., concur; GREENBLOTT, J. P., and SWEENEY, J., dissent and vote to affirm in an opinion by GREENBLOTT, J. P.

GREENBLOTT, Justice (dissenting).

Special Term properly concluded that the respondent proceeded legally and promulgated valid regulations. The Federal Social Security Act of 1935 provided for the establishment of Federal aid to families with dependent children. This act also provided that the states could voluntarily participate and thus receive Federal reimbursement of approximately 50% Of the amounts paid (U.S.Code, tit. 42, § 601 et seq.). New York enacted sections 343 through 362 of the Social Services Law, known as the aid to dependent children program, which was designed to take advantage of the liberal Federal monies offered. In 1971 the New York State Commissioner of Social Services promulgated a series of regulations which include as dependent children certain unborn children, thus providing for the payment of combined Federal, State and local money to needy unborn children (see 18 NYCRR 352.30(c); 360.5(g); 369.1(b); 369.2(a)(1)(i); 369.2(b); 369.2(g)(4)(iv); 369.3(a) and 369.3(a)(5)). By these regulations indigent women are permitted to claim public assistance on behalf of their unborn children after the fourth month of medically verified pregnancy.

The majority contends that subdivision A of section 349 of the Social Services Law, which provides that "(a)id to dependent children shall be given to a parent * * * for the benefit of a child under eighteen years of age * * * ", does not provide for aid to "unborn children". Strongly relied upon by the majority is Burns v. Alcala, 420 U.S. 575, 95 S.Ct. 1180, 43 L.Ed.2d 469 wherein the Supreme Court defined a "dependent child" within the context of the Social Security Act as being "an individual already born with an existence separate from its mother".

It does not necessarily follow, however, that Burns compels the result urged by the majority. In the recent case of Matter of Rankin v. Lavine, 50 A.D.2d 1091, 376 N.Y.S.2d 355, affd. 41 N.Y.2d 911, 394 N.Y.S.2d 618, 363 N.E.2d 343 the Appellate Division, Fourth Department, determined that an unborn child is entitled to aid to dependent children benefits. The court stated (id. at 1093, 376 N.Y.S.2d at 358):

We do not believe that Burns v. Alcala, 420 U.S. 575, 95 S.Ct. 1180, 43 L.Ed.2d 469 compels a different result. That case merely held that the States are not required to offer welfare benefits to pregnant women for their unborn children in order for them to qualify to receive Federal financial aid under the AFDC program. The Supreme Court left open the option afforded the States to make provision for assistance to unborn children * * *.

The court further stated (id. at 1092-1093, 376 N.Y.S.2d at 358):

For the purpose of granting aid to dependent children benefits, the unborn child...