Bates v. Toia

OPINION OF THE COURT Mahoney, J. Since the ultimate relief sought is a declaration of invalidity of a promulgated regulation, this proceeding should [461] be converted to an action for a declaratory judgment (Cantlin v State Liq. Auth., 16 NY2d 155; 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], 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 NY2d 911, affg 50 AD2d 1091) 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 NY2d 42, 52-53.)” (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 [462] 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 NY2d 978) 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 NY2d 42, 51, 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. 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 US 575) 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 F2d 750, reh den 520 F2d 938.) In sum, the respondent commissioner in promulgating [463] 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 NY2d 102; Matter of Jones v Berman, supra, p 53). We, therefore, declare the subject regulations invalid. The judgment should be reversed, on the law, without costs: and judgment directed to be entered declaring 18 NYCRR 369.2 (a)(l)(i) and 360.5 (g) to be invalid.