BERNADETTE DARCES, Plaintiff and Appellant, v. MARION WOODS, as Director, etc., Defendant and Respondent.
L.A. No. 31620
Supreme Court of California
Apr. 20, 1984.
871
BERNADETTE DARCES, Plaintiff and Appellant, v.
MARION WOODS, as Director, etc., Defendant and Respondent.
Hugh Harrison, Erica Hahn, Byron J. Gross, Edward Ortega, Marilyn Kaplan Katz and Melinda Bird for Plaintiff and Appellant.
John Huerta, Linda Wong, Richard Pearl, Stefan Rosensweig, Christine Hely, Mark Rosenbaum, Peter Reid and Peter A. Schey as Amici Curiae on behalf of Plaintiff and Appellant.
George Deukmejian and John K. Van de Kamp, Attorneys General, Thomas E. Warriner, Assistant Attorney General, Anne S. Pressman and Elizabeth Hong, Deputy Attorneys General, for Defendant and Respondent.
OPINION
REYNOSO, J.—May the state disadvantage citizen children eligible for governmental assistance on the basis that they live with their brothers
Bernadette Obando Darces is an undocumented alien and working mother whose income is insufficient to meet the subsistence needs of her six children, three of whom are native-born citizens. Her three older children—Marisol, Pablo and Carlos—are ineligible for assistance under the Aid to Families With Dependent Children (AFDC)1 program because of their undocumented immigration status. However, her three younger children—Larry, Jorge and Guido—as citizens are eligible to be, and were in fact recipients of an AFDC grant at the time this litigation was instituted.
This case concerns a decision by defendant Marion Woods, as director of the State Department of Social Services (DSS), reducing the grant received by Ms. Darces for the benefit of her three citizen children. In particular we consider the validity, under state and federal law, of administrative regulations which authorize DSS to assume that Ms. Darces’ total income is available only to the citizen children without taking into account the fact that a portion of her earned income must of necessity be allocated to meet the needs of her other children.
The department‘s policy and practice, Mrs. Darces complains, deny her citizen children the minimum grant amount the state has determined is necessary to prevent deprivation—the amount provided to all other eligible children. She asks this court to recognize that the policies of the department and the state clash with the daily reality confronting her family, and urges us to hold that DSS cannot employ the presumption that all of her income is available to the citizen children. After all, she argues, she has a moral and statutory obligation to feed, clothe and house her three undocumented children. Her arguments, in essence, coаlesce into a basic contention that the state may not punish and severely disadvantage her citizen children who, by accident of birth, must live under the same roof as their undocumented brothers and sisters. She advances both statutory and constitutional arguments in support of this position.
Ms. Darces first contends that the challenged policy and practice are inconsistent with the applicable state and federal laws governing administra-
We believe these arguments have considerable force as a matter of policy. Nevertheless, our review of the applicable provisions of state and federal law leads us to reject the statutory contention advanced by Ms. Darcеs. We will conclude that the department‘s policy of not considering the needs of undocumented children is consistent with the governing regulatory and statutory scheme.
Ms. Darces’ alternative contention is that the department‘s regulations single out eligible children living with undocumented siblings for disparate treatment, in violation of equal protection under the state and federal Constitutions. We are therefore confronted with the task of passing on the constitutionality of state statutes and regulations which permit DSS to engage in the challenged practice.
At the outset we emphasize for conceptual clarity that Ms. Darces does not claim that undocumented aliens have a constitutional right to AFDC. Our focus, then, is on the disparate treatment accorded Ms. Darces’ citizen children in the limited context of those cases, as here, wherein AFDC eligible children share the same home with undocumented siblings. Accordingly, we need not consider the more difficult question whether the purposeful, statutorily mandated discrimination in the welfare area against undocumented aliens because of their undocumented status violates equal protection. (Compare Plyler v. Doe (1982) 457 U.S. 202 [72 L.Ed.2d 786, 102 S.Ct. 2382].)
As indicated, we are of the view that settled constitutional principles and social policy considerations unite in this case to point towards one result. We look to the California Constitution. For the reasons discussed below, we hold that the DSS regulations and state statute in issue sanction the allocation of burdens and benefits in a manner violative of the command of equal protection under the law.
I
Bernadette Darces (appellant), a resident of Los Angeles County, is a single parent who received AFDC benefits in 1979. The nub of her problem
This inequity was not alleviated when appellant was able to obtain employment. The present controversy arose when DSS, in reducing the grant to the citizen children in the amount of the mother‘s nonexempt income, refused to disregard, or otherwise take into account, that portion of her earnings necessary to support the undocumented children. Appellant is thereby subjected to a second legal fiction: it is presumed that her total income is exclusively available to the citizen children and that she has no obligation to support the undocumented children. In effect, DSS not only refused to support the undocumented children, it refused to permit the mother to support them.
The facts are undisputed. Prior to March 1979, appellant received a monthly AFDC grant of $356 for the benefit of her three eligible children. The amount was calculated by Los Angeles County (county), as the agent of DSS in the administration of the AFDC program, in accordance with the method set forth in the Manual of Eligibility and Assistance Standards (EAS). The amount of an AFDC grant is based on the number of persons living in the home who are eligible for assistance. (See
On February 13, 1979, appellant was sent formal notice of proposed action advising her that her AFDC grant would be reduced. The county proposed to reduce appellant‘s grant from $356 a month to $154 a month because her employment income in January 1979, when this case originated, was $557.98. (The county is authorized to reduce an AFDC grant, under EAS § 44-315.1, when “[t]here is a change in need [or] income . . . .“) In computing the revised grant amount, the county deducted $269 from appellant‘s income for such expenses as child care and transportation costs. (See EAS §§ 44-133.3, 44-315.4.) This resulted in a net income of $269. The county is authorized to grant an additional deduction for appellant‘s personal needs even though she is an undocumented alien.5 The county determined appellant‘s personal needs to be $67 a month. The needs of appellant‘s undocumented children were not considered, however, and no deduction from appellant‘s income was allowed for their needs. After these deductions and credits, appellant‘s remaining nonexempt income was calculated to be $202. The AFDC grant for the benefit of her eligible children was therefore determined to be $154, the $356 MAP for a three-membеr FBU having been reduced by $202 which represents the amount of appellant‘s earned income deemed available to her three citizen children.6
Thereafter, appellant instituted the present action against respondent, as director of DSS, seeking a peremptory writ of mandate (
Appellant made a motion for summary judgment. Respondent countered with his own summary judgment motion. Subsequently, the parties filed their respective points and authorities and a stipulation to facts. Appellant‘s motion, which we will uphold, petitioned the trial court to permanently enjoin respondent from:
“(a) Failing to recognize any exclusion from the income of a caretaker for the needs of minor children not aided by the AFDC program, who are in the care of the caretaker;
“(b) . . . [A]ssuming income to be available to children who are aided by the AFDC program, which is not actually available because it is being used to provide for the needs of unaided minor children in the care of their caretaker.”
Appellant, noting that “the focus of [her] argument is the eligible child [for whom a] minimum standard of care has been set by the State[,]” argued to the court below that “[i]f you do not deduct for the needs of the ineligibles, you are attributing income to the family budget unit that is not there and therefore you will not maintain the standard of need for the eligible child.” The trial court concluded, hоwever, that if certain family members
II
The first question presented for decision is whether the challenged regulations, as applied to eligible children who reside with undocumented siblings, are inconsistent with the governing statutory scheme. We believe that respondent correctly followed the regulations which refuse to take into account the needs of appellant‘s undocumented children. The regulations, we conclude, are properly based on the statutes.
AFDC, a cooperative federal-state program financed with federal and state funds, is one of four categorical public assistance programs established by the Social Security Act of 1935 (Act).7 (
Although the individual states are not required to participate in the AFDC program, once a state elects to do so (and all do) it is bound to maintain a welfare system in compliance with the mandates of federal law as a condition of receiving federal financial grants. (
As we recently noted in Vaessen v. Woods (1984) ante, pages 749, 755 [200 Cal.Rptr. 893, 677 P.2d 1183], two major purposes of the AFDC program are recognized: “. . . provid[ing] for the financial needs of families with dependent children so that the children may remain in their home. . . . [and] encouraging caretaker relatives to achieve self-support through
In order for a family with dependent children to qualify for AFDC benefits, the dependent children must be “needy” (as the term is defined in the standards established by the state).8 In addition, they must be eligible for assistance by virtue of the absence, death, unemployment or incapacity of a parent, and must reside in the home of one of the enumerated adult caretaker relatives within a certain degreе of kinship.9 (
States have the option to include within the FBU, for purposes of calculating need, a third category of otherwise ineligible persons whose presence is deemed essential to the well-being of the recipients in the two mandatory categories.
The size of the FBU is therefore determined by the number of persons eligible to be included in each of the above categories—i.e., eligible depеn-
Under current California law only adult caretakers and their spouses are considered “essential persons.” In 1981 the Legislature exercised its prerogative pursuant to federal law to limit the definition of “essential persons” by amending the Welfare and Institutions Code to add the following provision: “Needy relatives under this chapter include only natural or adoptive parents, the spouse of a natural or adoptive parent, and other needy caretaker relatives.” (
The DSS regulations in effect in 1979 excluded, as they do now, undocumented aliens from membership in the FBU. (See former EAS § 44-206.15, superseded by EAS § 44-206.1(e), eff. Oct. 1, 1982; see ante, at fn. 4.) Respondent‘s practice was consistent with former Welfare and Institutions Code section 11104 which provided that aliens qualified for aid only upon certification under penalty of perjury of immigration status. This section was repealed in 1982 and a new section added which now provides: “Aliens shall be eligible for aid only to the extent permitted by federal law. [¶] An alien shall be eligible for aid if the alien has been lawfully admitted for permanent residence, or is otherwise permanently residing in the United
The language of new
“[The State plan must:] . . . (33) provide that in order for any individual to be considered a dependent child, a caretaker relative whose needs are to be taken into account in making the determination under paragraph (7), or any other person whose needs should be taken into account in making such a determination with respect to the child or relative, such individual must be either (A) a citizen, or (B) an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law . . . .”13
While appellant concedes that the applicable statutes and regulations expressly prohibit the inclusion of her undocumented children in the FBU, she nonetheless argues that their needs must be taken into account because the policies underlying the statutory scheme, as well as decisional authority, require recognition of the amount of income actually available to the citizen children.
We find this argument unpersuasive in the face of a statutory scheme that evinces the clear intent to exclude any and all consideration of the needs of undocumented children. As noted above, the enactment in OBRA of new paragraph (33) of
Paragraph (33) of
There are a few exceptions to this general rule, such as provisions for stepparents,15 which are not applicable in this case. Appellant is thus unable
to point to any statutory or regulatory provision which authorizes consideration of the needs of her undocumented children without bringing them into the FBU.
Our sole function is to ensure that the challenged regulations comport fully with federal law. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 749 [97 Cal.Rptr. 385, 488 P.2d 953].) Our inquiry is at an end once it is determined that respondent‘s regulatory practice is in compliance with the statutory scheme. Accordingly, respondent‘s practice of refusing to consider the needs of undocumented siblings of eligible children must be upheld unless it fails to meet the constitutional requirements of equal protection.
III
We, therefore, take up appellant‘s constitutional contention that the challenged practice penalizes her eligible children solely on the basis of their status as siblings of undocumented aliens in violation of equal protection under the state and federal Constitutions.
The guarantees of equal protection embodied in the Fourteenth Amendment of the United States Constitution and article I, section 7 of the California Constitution “compel[] recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” (Purdy & Fitzpatrick v. State of Calif. (1969) 71 Cal.2d 566, 578 [79 Cal.Rptr. 77, 456 P.2d 645, 38 A.L.R.3d 1194]; Reed v. Reed (1971) 404 U.S. 71, 75-76 [30 L.Ed.2d 225, 229-230, 92 S.Ct. 251].) “This principle, of course, does not preclude the state from drawing any distinctions between different groups of individuals, but does require that, at a minimum, classifications which are created bear a rational relationship to a legitimate public purpose.” (In re King (1971) 3 Cal.3d 226, 232 [90 Cal.Rptr. 15, 474 P.2d 983].) However, this deferential standard is inapplicable “‘in cases involving “suspect classifications” or touching on “fundamental interests” . . . .‘” (Ibid.) In such cases “the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that distinctions drawn by the law are necessary to further its purpose.” (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784-785 [87 Cal.Rptr. 839, 471 P.2d 487].)
Most recently the United States Supreme Court, in Plyler v. Doe, supra, 457 U.S. 202, 216, reviewed its decisions applying the familiar two-tier equal protection anal-
A. Standard of Review
We begin our analysis with the task of choosing the standard of review appropriate for the evaluation of appellant‘s equal protection contention.
1. Nature of classification
Preliminarily, we consider the nature of the classification created by respondent. Respondent‘s regulations provide for the exclusion of individuals from the FBU in a variety of contexts.16 Respondent‘s implementation of his deрartment‘s eligibility requirements (which include EAS exclusionary provisions) creates two classes of AFDC-eligible children: those who reside with ineligible persons, and those who do not. As earlier noted, ineligible persons may nevertheless qualify for inclusion in the FBU as “essential persons” under section 11203 of the Welfare and Institutions Code. Appellant‘s three older children, however, cannot under any circumstances be included in the FBU because of their undocumented status. This brings us to the particular exclusion with which we are here concerned. The application of the statutorily mandated exclusion for undocumented aliens, as implemented by respondent‘s regulations, creates a subclass within the previously identified class of eligibles residing with ineligibles—namely,
Appellant does not argue that her undocumented children have a constitutional right to receive welfare benefits. Rather, she contends that although the challenged classification turns upon the status of the undocumented children, in practical effect it operates to deprive the eligible siblings of the full benefits to which they are entitled17 while granting full benefits to those eligible children who do not reside with undocumented aliens.
Our focus, then, is on discrimination (in the provision оf AFDC benefits) against eligible children who, through no fault of their own, must live in the same home as their undocumented siblings.18 The Legislature, having chosen to extend AFDC benefits to eligible children, then denies them, in part or whole, to a small class of eligible children solely on the basis of their familial relationship and residency with undocumented aliens.
This case thus comes before us in an unusual posture in that it is the rights of citizens—not undocumented aliens—that are implicated. This situation is not unlike cases involving illegitimate children wherein the challenged classification is dependent upon the marital status of the parents but operates in effect to deprive children of their rights. The United States Supreme Court has consistently struck down legislation which discriminates against illegitimate children, reasoning that it is “illogical and unjust” to deprive a child “simply because its natural father has not married its mother.” (Gomez v. Perez (1973) 409 U.S. 535, 538 [35 L.Ed.2d 56, 60, 93 S.Ct. 872]; see also Trumble v. Gordon (1977) 430 U.S. 762 [52 L.Ed.2d 31, 97 S.Ct. 1459]; Weber v. Aetna Casualty & Surety Co. (1972) 406 U.S. 164 [31 L.Ed.2d 768, 92 S.Ct. 1400].) We should be similarly hostile to legislative classifications which deprive eligible children of governmental beneficence
Appellant correctly points out that the line drawn by respondent between AFDC-eligible children who live with undocumented siblings and eligible children who do not is clearly irrelevant to the goals and objectives of the AFDC program. The members of both classes are similarly situated with respect to the legitimate purpose of the AFDC program—the relief of eligible, needy children. All are needy, and meet the statutory criteria for assistance, and yet, one class of children is singled out for unequal treatment solely on the basis of the undocumented status of their family members—a factor unrelated to dependency, and over which they have no control.
Thus, if this classification is to be sustained, the state must justify the lines it has drawn among similarly situated persons.19
2. Strict scrutiny is the appropriate standard of review.
The question, then, is whether the state need show only that its classification is reasonably related to a legitimate governmental objective—or whether it must comply with the mandate of the more stringent equal protection test by demonstrating “that its classification has been precisely tailored to serve a compelling governmental interest.” (Plyler, supra, 457 U.S. at р. 217 [72 L.Ed.2d at p. 799, 102 S.Ct. p. 2395].) As we have already noted, this court must employ the latter, “active and critical analysis” in cases involving “suspect classifications” or touching on “fundamental interests.” (Serrano v. Priest, supra, 18 Cal.3d 728, 761 (Serrano II), quoting from Serrano I, supra, 5 Cal.3d at p. 597.) We find ourselves unable to agree with respondent‘s two principle contentions.
In Dandridge the high court sustained a state statute, which imposed a maximum grant available to welfare recipients regardless of family size, against a claim of violation of equal protection. Recipients with large families whose standard of need exceeded the maximum grant contended that their families were disadvantaged in relation to small needy families. In rejecting the claim, the court acknowledged the “dramatically real difference” between state regulation of business and welfare assistance, which “involves the most basic economic needs of impoverished human beings,” but nonetheless applied the rational basis constitutional standard of review. (397 U.S. at p. 485 [25 L.Ed.2d at p. 502].) The court concluded that “[i]n the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ [Citation.]” (397 U.S. at p. 485 [25 L.Ed.2d at pp. 501-502].)
Appellant in the instant case does not challenge the mathematical imperfections with which the state allocates welfare benefits. Of course, “[t]here is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need . . . .” (King v. Smith, supra, 392 U.S. 309, 318.) Appellant complains, though, that once the state establishes standards of need it cannot create two classes of eligible children, one of which is singled out for unequal treatment on the basis of factors unrelated to the objectives оf the statutory and regulatory scheme. Appellant contends that the state has drawn distinctions between otherwise eligible children and that the classification is presumptively invidious as it discriminates against a
Respondent next contends that appellant‘s three younger children are not members of a suspect class because it is their siblings’ trait—rather than their own—which is the basis of the differential treatment. He urges that it would be a “novel approach to equal protection” to hold that the traits of the undocumented children place their siblings in a suspect classification. In this regard, respondent argues that because the class affected by the challenged practice is comprised of citizens and documented aliens, the Supreme Court‘s recent decision in Plyler v. Doe, supra, 457 U.S. 202, involving discrimination against undocumented aliens, is inapposite. While we agree that the holding in Plyler is not squarely applicable here, we think that the high court‘s analysis and reasoning is especially pertinent.
The Supreme Court in Plyler held that a Texas statute denying undocumented children free public school education violated equal protection. The threshold question before the court was whether undocumented aliens were “persons” within the meaning of the Fourteenth Amendment. In a 1971 decision the high court had declared that “[a]liens as a class are a prime example of a ‘discrete and insular’ minority.” (Graham v. Richardson (1971) 403 U.S. 365, 372 [29 L.Ed.2d 534, 542, 91 S.Ct. 1848].)21 Gra-
Nevertheless, the high court concluded in Plyler that heightened judicial scrutiny was required because “more is involved in these cases than the abstract question whether [the statute] discriminates against a suspect class, or whether education is a fundamental right. [The statute] imposes a lifetime hardship on a discrete class of children not accountable for their disabling status.” (457 U.S. at p. 223 [72 L.Ed.2d at p. 803, 102 S.Ct. at p. 2398]; italics added.) Accordingly, the court employed its now familiar “intermediate” standard of review requiring the state to show that the discriminаtion furthers a “substantial” state interest. (See, e.g., Craig v. Boren (1976) 429 U.S. 190 [50 L.Ed.2d 397, 97 S.Ct. 451]; Lalli v. Lalli (1978) 439 U.S. 259 [58 L.Ed.2d 503, 99 S.Ct. 518].)
The primary underpinning of Plyler—that innocent children cannot be explicitly disadvantaged on the basis of their status of birth—unquestionably applies to the instant case. In both cases the classifying trait is one over which the children have no control: the undocumented status of a family member who in coming to this country, albeit illegally, placed the children in their disadvantaged position. Justice Brennan, writing for the majority in Plyler, reasoned that the Texas statute could not pass constitutional muster because it “direct[ed] the onus of a parent‘s misconduct against his children” who “are present in this country through no fault of their own.” (457
Similarly, a recent federal district court decision held that the state cannot “victimize the citizen child or a lawfully resident child and deprive it of [day care services] . . . based solely on his mother‘s [undocumented] status. . . .” (Ruiz v. Blum, supra, 549 F.Supp. 871, 877.) As Justice Powell noted, concurring in Plyler, these holdings “find support in decisions of this Court with respect to the status of illegitimates. In Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972), we said: ‘[V]isiting . . . condemnation on the head of an infant’ for the misdeeds of the parents is illogical, unjust, and ‘contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.’ [¶] In these cases, the State of Texas effectively denies to the school-аge children of illegal aliens the opportunity to attend the free public schools that the State makes available to all residents. They are excluded only because of a status resulting from the violation by parents or guardians of our immigration laws and the fact that they remain in our country unlawfully. The respondent children are innocent in this respect. They can ‘affect neither their parents’ conduct nor their own status.’ Trimble v. Gordon, 430 U.S. 762, 770 (1977).” (457 U.S. at p. 238 [72 L.Ed.2d at p. 813, 102 S.Ct. at p. 2406], conc. opn. by Powell, J.)
In the present case, appellant‘s citizen children are denied welfare benefits although, like the children in Plyler, they are “innocent” with respect to their parents’ violation of the immigration laws. We cannot agree with respondent‘s position that Plyler is distinguishable because it involved education. We note that the court did not have to ground its holding upon a finding that education is a “fundamental right.” (Cf. Serrano II, supra, 18 Cal.3d 728.) Indeed, Justice Powell‘s concurring opinion suggests that the court‘s decision in Plyler is applicable in the welfare context: “If the resident children of illegal aliens were denied welfare assistance, made available by government to all other children who qualify, this also—in my opinion—would be an impermissible penalizing of children because of their parents’ status.” (457 U.S. at p. 239, fn. 3 [72 L.Ed.2d at p. 813, 102 S.Ct. at p. 2406] italics added.) We conclude that heightened judicial scrutiny is warrаnted in this case.
What is the standard for such heightened judicial scrutiny? Our state equal protection clause is “possessed of an independent vitality” from the Fourteenth Amendment. (Serrano II, supra, 18 Cal.3d 728, 764.)23 We hold that the challenged practice in this case should be reviewed under the strict scrutiny test.
In holding that strict scrutiny is warranted—indeed compelled—in this case, we do so in recognition that constitutional safeguards can be preserved only by rejecting a rigid, categorical approach to equal protection. It would be truly incongruous to hold that appellant‘s alien children are entitled to heightened protection but not their brothers and sisters who live in the same home and suffer the same disadvantage.
We have thus far emphasized the reason appellant‘s children constitute a discrete minority—their inability to control their parents’ conduct. Equally crucial to our holding is the fact that appellant‘s citizen children are classified on the basis of an immutable trait—they cannot forsake their birth into an undocumented family. They are “saddled with [the same] disabilities [and] subjected to [the same] history of purposeful unequal treatment” as their brothers and mother. (San Antonio School District v. Rodriguez, supra, 411 U.S. 1, 28.) Indeed, the challenged classification touches upon two traits that have been historically disfavored—national origin and ancestry. (See, e.g., Hernandez v. Texas (1954) 347 U.S. 475 [98 L.Ed. 866, 74 S.Ct. 667] [national origin]; Takahashi v. Fish Game Comm. (1948) 334 U.S. 410 [92 L.Ed. 1478, 68 S.Ct. 1138] [origin and ancestry]; Oyama v. California (1948) 332 U.S. 633 [92 L.Ed. 249, 68 S.Ct. 269] [same]; Yick Wo v. Hopkins (1886) 118 U.S. 356 [race, alienage, national origin].) As in these lineage cases, appellant‘s children are classified on the basis of an immutable trait and are relegated to an inferior status into which they are locked by accident of birth. For all of the foregoing reasons, the classification in the present case must be strictly scrutinized.24
B. No Compelling State Interest in Classification
We now reach the point in our analysis where respondent must show a compelling state interest that is furthered by the classification he has
Respondent advances a second, though related, contention. He asserts that he is required by federal law to exclude consideration of the needs of undocumented children. Thus, he argues, failure to comply with the federal guidelines may result in the expulsion of the state from the AFDC program. This contention must be rejected on two grounds.
First, as we earlier noted, any consideration of the needs of undocumented children clearly results in funding those children in violation of federal law. However, respondent utterly fails to explain how the goal of complying with the federal standards is furthered by the exclusion of undocumented children from the FBU. Short of police enforcement, there is no way respondent can compel a mother to feed only her citizen children and leave the others to starve. It would defy all logic to assume that appellant would permit only her eligible children to be beneficiaries of the AFDC grant—whatever the amount—to the exclusion of her undocumented children. As one court observed in a related context, “any attempt to quantify the precise degree of benefit to each would be an exercise in semantic futility.” (Ruiz v. Blum, supra, 549 F.Supp. 871, 875.) Indeed, respondent‘s papers before this court concede that appellant must of necessity have allocated a portion of her AFDC grant for the benefit of her undocumented children. The reality is that undocumented children living with eligible siblings use AFDC funds in any event; the latter group simply has a lesser grant as a result of respondent‘s policies.
Secondly, we note that state noncompliance with federal law does not in itself mean that the state will be precluded from participating in the AFDC program. The Supreme Court has struck down state laws inconsistent with federal law in those cases where the state practice resulted in a lower grant than would have been obtained under the federal regulations. (See, e.g., King v. Smith, supra, 392 U.S. 309; Rosado v. Wyman, supra, 397 U.S. 397.) When presented with this very question, one state court held that there is no authority “for the proposition that a participating state may not have a more liberal eligibility standard for AFDC recipients than that required as a minimum” by federal regulations. (Ottman v. Fisher (Me. 1974) 319 A.2d 56, 62, original italics.) The Supreme Court has noted in this regard that “there is nothing in the federal statute that prohibits a State from making vendor payments so long as they are made from state funds without federal matching.” (Engelman v. Amos (1971) 404 U.S. 23, 24 [30 L.Ed.2d 143, 145, 92 S.Ct. 181].) In short, DSS may include undocumented aliens in its FBU calculations so long as the grant in these cases is derived exclusively from state funding. Respondent‘s second contention remains, in essence, a fiscal one.
Neither of the state interests advanced by respondent amounts to a constitutionally compelling state interest that justifies his policy and practice of under-funding those families, likе appellant‘s, comprised of citizens and undocumented members. We have thus concluded that the classification created by appellant‘s practice of excluding undocumented aliens from the FBU is invidiously discriminatory, as applied to families like appellant‘s, and violates the equal protection rights of eligible children in such families. We therefore hold that, under our state Constitution,25 undocumented aliens, who would otherwise be eligible for AFDC but for their immigration status, must be included in the family budget unit for purposes of calculating the grant amount in those limited cases where the failure to do so would result in a reduction in, or denial of the maximum aid payable benefits to which the eligible persons—United States citizens or lawfully resident aliens—are entitled.
The judgment is reversed. Appellant‘s motion for summary judgment, we have seen, seeks to permanently enjoin defendant from enforcing regulations which (1) exclude the need of minor children not aided by AFDC and (2) assume the availability of income to children who are aided by AFDC when in fact the income is not available. Consistent with the views we have expressed, the trial court is instructed to grant appellant‘s motion for summary judgment.
Bird, C. J., Mosk, J., and Broussard, J., concurred.
KAUS, J., Concurring.—I too conclude that—as applied in this case—the challenged administrative regulatiоn (EAS 44-133.3) is invalid, but I reach this conclusion for reasons quite distinct from those of the majority opinion. In my view, the controlling federal statutes and regulations prohibit the state from reducing the AFDC recipients’ benefits on the basis of that portion of
To begin with, there is no question but that Ms. Darces’ three youngest children, who are United States citizens, are properly entitled to receive AFDC benefits. In determining the amount of benefits they receive, federal law contemplates that the state will take into account the income of their caretaker, here their mother. (See, e.g.,
In defense of the state regulation, the Attorney General relies on a portion of the federal statute which declares that, in order to comply with federal law, a state program must “provide that in order for any child to be con-
Read in conjunction with the applicable statutory references, however, paragraph (33) simply means that an undocumented alien cannot be either (1) a direct recipient of AFDC benefits or (2) what the federal regulations term an “essential” person whose presence in the recipients’ household is used in determining the size of the recipients’ “family budget unit.” Plaintiff in this case does not contend that her three undocumented alien children should be counted for either of those purposes. Contrary to the Attorney General‘s contention, nothing in paragraph (33) suggests that income which is not, in fact, available to the AFDC recipients because it must legally be used to support an undocumented alien child, may nonetheless be considered income which is available to the recipients.3 Neither the legislative history of paragraph (33)4 nor any judicial authority supports the Attorney General‘s reading of the provision, and such an interpretation would clearly fly in the face of the federal precedents prohibiting the reduction of benefits on the basis of fictional attributions of income.
Grodin, J., and Richardson, J.,* concurred.
Respondent‘s petition for a rehearing was denied July 12, 1984. Lucas, J., was of the opinion that the petition should be granted.
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
Notes
| Gross income | $557.98 | (Rounded |
| Less mandatory deductions | 49.39 | figure) |
| Less transportation expenses | 20.00 | |
| Less child care costs | 220.00 | |
| 268.59 | ||
| Net income | $269.00 | |
| MAP (4-member FBU) | $423.00 | |
| MAP (3-member FBU) | 356.00 | |
| Difference (needs of appellant) | $ 67.00 | |
| Net income | $269.00 | |
| Less needs of appellant | 67.00 | |
| Nonexempt income deemed available to FBU | $202.00 | |
| MAP (3-member FBU) | $356.00 | |
| Less income “available” to FBU | 202.00 | |
| Amount of Grant | $154.00 |