The opinion of the court was delivered by: COOPER
This action challenges the validity of New York State Department of Social Services Regulation 353.3(a)(2)(i) on the grounds that such regulation is contrary to 45 C.F.R. § 203.1, a regulation propounded by the United States Department of Health, Education and Welfare, and further, upon the ground that such state regulation violates plaintiff's Fourteenth Amendment rights to due process and equal protection of the laws. Declaratory and injunctive relief is sought pursuant to 42 U.S.C. § 1983. Jurisdiction is present under 28 U.S.C. § 1343(3) and (4).
Plaintiff now moves for the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284, for a temporary restraining order pursuant to 28 U.S.C. § 2284 enjoining defendants, Commissioners of the Department of Social Services of the State of New York and of the City of New York, for enforcing 18 N.Y.C.R.R. § 353.3(a)(2)(i) so as to deny plaintiffs and all others similarly situated public assistance benefits to which they would otherwise be entitled, and for an order determining that this action may be maintained as a class action pursuant to Rule 23, F.R. Civ. P. Defendants in opposition move separately for dismissal of the complaint.
Mrs. Cancel brings this action on behalf of her six infant children named herein. Her present husband (Mr. Cancel) is the non-adopting stepfather of these children; they are recipients of Aid to Families with Dependent Children (AFDC) (public assistance benefits).
Prior to her marriage to Mr. Cancel, plaintiff received AFDC payments in the amount of $191.75 semi-monthly. On learning of her marriage, defendant Commissioner Goldberg lowered her AFDC payments to $117 (now $134.95 semimonthly as a result of recent general increases) in accordance with 18 N.Y.C.R.R. § 353.3(a)(2)(i) which by its terms requires defendant to apply available resources of a stepparent to the needs of his stepchildren.
Three-Judge Court Requirements
The single district judge before whom an application is made to convene a three-judge court must determine whether a substantial question has been raised with respect to the constitutionality of a state statute, whether the complaint sets forth a basis for equitable relief and whether the other requirements for a three-judge court are met. See Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962). Unless plaintiff carries her burden in this regard, a three-judge court must be denied.
Substantiality of the Constitutional Question
If the complaint fails to raise a substantial constitutional question with respect to the state regulation here in issue, a three-judge court must be denied. Moreover, if plaintiff's further contention that the state regulation is contrary to federal regulations and thus invalid lacks substantiality, then this action must be dismissed in its entirety. See Swift & Co. v. Wickham, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965). The Supreme Court has stated that "[the] lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject." California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S. Ct. 865, 867, 82 L. Ed. 1323 (1938).
In rejecting the view "that, except in 'an open and shut case,' it is better to 'constitute a 3-Judge Court, and allow that court to determine initially' whether it should have been constituted," our circuit has stated:
An occasional reversal because a court of appeals will disagree with respect to the substantiality of the question is far less wasteful of judicial resources. * * * the best course of this circuit is for single district judges to continue conscientiously to pass upon the substantiality of constitutional attacks on the state statutes * * * and, where this court unanimously agrees that the attack is without merit, for us not to be finical on whether the lack of merit was obvious. Heaney et al. v. Allen et al., 426 F.2d 869 (2d Cir. 1970). (Citations omitted.)
Plaintiff claims first that this New York regulation, which assumes that a stepfather's income will be made available for support of any stepchildren to the same extent as natural children, denies equal protection of the laws to children living with stepparents. Plaintiff argues that "this assumption creates two classes among those children otherwise eligible for AFDC benefits (1) those children who have stepparents who do not contribute to their support and receive either no benefits or reduced benefits depending on the size of stepparents' ...