the sole reason that she was not eligible to receive general assistance and therefore under the Regulation 3131.12(b) it was correct to discontinue assistance for the care and support of Algeron Walker.
We agree with plaintiff's contention that this classification is irrational, invidious and in violation of equal protection of the laws as required by the Fourteenth Amendment to the Federal Constitution.
In examining the law applicable to situations of this type involving public welfare grants, it is necessary to distinguish cases arising under the program of aid for dependent children as mandated by the Federal Social Security Act and those which involve constitutional questions alone. In this case, we are concerned solely with general assistance furnished by the Commonwealth of Pennsylvania. This is not the case of a program federally funded in whole or in part and thus we are not confronted with the claim that state regulations are in violation of federal law or regulations. For this reason, cases involving these questions are actually not in point, these being such cases as King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968). In it the court specifically did not reach the constitutional issue. A similar case is Townsend v. Swank, 404 U.S. 282, 92 S. Ct. 502, 30 L. Ed. 2d 448 (1971) involving differentiating between college students and vocational school students under the ADC program. The court in that case put the decision squarely on the statute but did make some remarks indicating its thinking with respect to the equal protection problem. Of similar import is Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970), involving limits on maximum grants for ADC, and Jefferson v. Hackney, 406 U.S. 535, 92 S. Ct. 1724, 32 L. Ed. 2d 285 (1972) where the maximum amount appropriated by a state required a reduction in the ADC grants. In the latter two cases, the court found no violation of the Social Security Act and found a solid foundation for a state's legitimate interest as a basis for the claimed differentiation.
See also Rodriguez v. Vowell, 472 F.2d 622 (5th Cir. 1973) where it was held that the needs of caretaker relatives as well as the child itself ought to be considered under the ADC program. The question we have here is rather whether there is an invidious, irrational distinction made between two groups. For guidance in this situation, we may, however, rely upon some of the language contained in the opinions in Dandridge and Jefferson, supra.
In Dandridge, the court said (397 U.S. page 483, 90 S. Ct. page 1161): "Although a State may adopt a maximum grant system in allocating its funds available for AFDC payments without violating the Act, it may not of course impose a regime of invidious discrimination in violation of the equal protection clause." * * * "We need not explore all the reasons that the State advances in justification of the regulation. It is enough that a solid foundation for the regulation can be found in the state's legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of the working poor."
Again, in Jefferson v. Hackney, supra, the court said (406 U.S. page 546, 92 S. Ct. page 1731): "So long as its judgments are rational and not invidious, the legislature's efforts to tackle the problems of the poor and needy are not subject to a constitutional strait-jacket. The very complexity of the problems suggests that there will be more than one constitutionally permissible method of solving them."
Turning to cases which are bottomed squarely on the Fourteenth Amendment, however, we find Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) holding that a conclusive presumption that unwed fathers are unfit to rear their illegitimate children, violates the equal protection clause in setting up an invidious and irrational classification. It also violates the due process clause in establishing a conclusive presumption without any rational basis.
Turning to Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), we find the court invalidated the one year waiting period for receiving welfare payments on general public assistance as provided by the laws of several states holding that this was irrational and that there was no compelling state interest.
More recent guidance is given us in the decision of the United States Supreme Court Department of Agriculture v. Moreno, 413 U.S. 528, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973). While this case involves another program, to wit: the Food Stamp Program, 7 U.S.C. § 2012(e) as amended, it does point the way to the determination which we have reached in this case. Mr. Justice Brennan's opinion points out that the section of the Food Stamp Act in question excludes from participation in the program a household containing an individual who is unrelated to any other member in the household. It says "in practical effect, § 3(e) creates two classes of persons for food stamp purposes: one class is composed of those individuals who live in households all of whose members are related to one another, and the other class consisting of those individuals who live in households containing one or more members who are unrelated to the rest. The latter class of persons is denied federal food assistance."
The court further said:
"Under 'traditional' equal protection analysis, a legislative classification must be sustained, if the classification itself is rationally related to a legitimate governmental interest." Emphasis added.
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