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April 26, 1984


The opinion of the court was delivered by: VAN ARTSDALEN


 Plaintiffs' complaint challenges as constitutionally infirm a federal welfare provision which requires the state to utilize a formula that includes certain amounts of a stepparent's earned income in computing the allowable aid available to a needy dependent child. The formula applies to stepparents irrespective of whether under state law a stepparent is legally obligated to contribute support to a stepchild. Presently before the court are the parties' cross motions for summary judgment. Both sides agree there is no genuine issue of material fact at issue. For the reasons that follow, plaintiffs' motion for summary judgment will be denied and defendants' motion will be granted.


 On August 26, 1983, plaintiffs' filed a class action complaint challenging the constitutionality of section 602(a)(31) of Title 42, United States Code. Section 602(a)(31) is located in that part of the Social Security Act that provides "Aid To Families With Dependent Children." 42 U.S.C. §§ 601-615. Subchapter IV of the Social Security Act of 1935, 42 U.S.C. §§ 601-610, created the Aid to Families With Dependent Children (AFDC) program. *fn1" The program was originally enacted to assist certain needy dependent children. *fn2" The AFDC program was not intended, however, to assist all needy children. See King v. Smith, 392 U.S. 309, 20 L. Ed. 2d 1118, 88 S. Ct. 2128 (1968). It was enacted to provide aid to children of families where there was no one capable of being a "breadwinner":

Many of the children included in relief families present no other problem than that of providing work for the bread winner of the family. These children will be benefited from the work relief program and still more through the revival of private industry. But there are large numbers of children in relief families which will not be benefited through work program or the revival of industry.
These are the children and families which have been deprived of a father's support and in which there is no other adult than the one who is needed for the care of the children. These are principally families with female heads who are widowed, divorced, or deserted.

 S.Rep.No.628, 74th Cong., 1st Sess., 17 (1935).

 Although the AFDC statute was amended a number of times after the original enactment in 1935, the only relevant change for purposes of this litigation occurred in 1981. Prior to 1981, regulations of the Department of Health, Education and Welfare (now the Department of Health and Human Services) mandated that only income and resources in fact available to a child for current use on a regular basis would be taken into consideration in determining need and the amount of payment. Lewis v. Martin, 397 U.S. 552, 555, 25 L. Ed. 2d 561, 90 S. Ct. 1282 (1970). The Supreme Court stated that such regulations clearly comported with the AFDC Act. King v. Smith, 392 U.S. 309, 319 n.16, 20 L. Ed. 2d 1118, 88 S. Ct. 2128 (1968). The Court later held, therefore, that absent proof of actual contributions, the state, in computing AFDC payments, could not consider the dependent child's resources to include either income of a nonadopting stepfather who was not legally obligated to support the child or income of a man assuming the role of a spouse. Lewis v. Martin, 397 U.S. at 559-60.

 The lower state and federal courts also consistently invalidated state laws requiring inclusion of stepparent income for calculation of AFDC benefits, unless under state law stepparents were legally obligated to support their stepchildren. See, e.g., Rosen v. Hursh, 464 F.2d 731 (8th Cir. 1972); Boucher v. Minter, 349 F. Supp. 1240 (D. Mass. 1972); X v. McCorkle, 333 F. Supp. 1109 (D.N.J. 1970), aff'd, 404 U.S. 23, 92 S. Ct. 181, 30 L. Ed. 2d 143 (1971); Slochowsky v. Lavine, 73 Misc.2d 563, 342 N.Y.S.2d 525 (N.Y. Sup. Ct. 1973); Kelley v. Iowa Dept. of Social Services, 197 N.W. 2d 192 (Iowa 1972), appeal dismissed, 409 U.S. 813, 34 L. Ed. 2d 69, 93 S. Ct. 170 (1972) (stepparent support obligation coextensive with natural parents under state law).

 In 1981, by virtue of the Omnibus Budget Reconciliation Act (OBRA), Pub. L. No. 97-35 § 2306(a), 95 Stat. 357 (1981), the AFDC Act itself was amended to include, with certain exemptions, stepparent's income. The AFDC Act now provides, in relevant part, that the State plan must

provide that, in making the determination for any month under paragraph (7), the State agency shall take into consideration so much of the income of the dependent child's stepparent living in the same home as such child as exceeds the sum of (A) the first $75 of the total of such stepparent's earned income for such month (or such lesser amount as the Secretary may prescribe in the case of an individual not engaged in full-time employment or not employed throughout the month), (B) the State's standard of need under such plan for a family of the same composition as the stepparent and those other individuals living in the same household as the dependent child and claimed by such stepparent as dependents for purposes of determining his Federal personal income tax liability but whose needs are not taken into account in making the determination under paragraph (7), (C) amounts paid by the stepparent to individuals not living in such household and claimed by him as dependents for purposes of determining his Federal personal income tax liability, and (D) payments by such stepparent of alimony or child support with respect to individuals not living in such household.

 42 U.S.C. § 602(a)(31).

 Plaintiffs, all children who have had AFDC benefits reduced as a result of the new provision, filed this class action complaint. *fn3" Plaintiffs challenge the stepparent provision on two constitutional grounds. First, plaintiffs contend the Act and regulations discriminate against a class of needy children based upon the marital status of the parent in violation of the equal protection clause. Plaintiffs' second allegation involves a contention that the due process clause has been violated by creating an irrebuttable presumption that the income of the non-legally responsible stepparent is actually available to the class of needy children.


 1. Plaintiffs' Equal Protection Claim.

 Plaintiffs, in their memorandum of law supporting the motion for summary judgment, contend that "a heightened level of equal protection scrutiny" should be applied in this litigation. Absent such an application, however, plaintiffs assert that the challenged provision also fails to meet the rational basis standard of review. Defendants contend that the only applicable standard is rational basis review and that the challenged provision easily passes constitutional muster. Both sides agree there are no issues of material fact and disposition by summary judgment is appropriate.

 It is now generally accepted by both the courts and commentators that in cases involving equal protection challenges the Supreme Court applies three levels of review in ruling on the validity of the challenged statute. Price v. Cohen, 715 F.2d 87, 91-92 (3d Cir. 1983); L. Tribe, American Constitutional Law 991-1146 (1979); G. Gunther, Constitutional Law 670-971 (1980). See generally, Note, Plyler v. Doe, 28 Vill. L. Rev. 198 (1982). *fn4" The three tiers of review are the rational basis test, intermediate or "middle-tier" scrutiny and strict scrutiny. The term "heightened" scrutiny has come to signify any standard of review above rational basis. ...

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