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November 18, 1970

Luedora FISHER et al., Plaintiffs,
Sidney E. SMITH, Director of the Department of Public Assistance of the State of Washington, Defendant

The opinion of the court was delivered by: LINDBERG

The present suit is a class action brought against the Director of the State Department of Public Assistance by parents of families receiving welfare assistance under the joint federal-state Aid to Families with Dependent Children (AFDC) program. Plaintiffs are contesting the validity of a Department regulation, WAC 388-28-065, *fn1" which provides:

For each applicant living in his own home:

1. The food requirement shall be the appropriate figure in § 8.21 according to age, sex, and size of household. (See exception in § 8.15)
2. The clothing requirement shall be the appropriate figure in § 8.22 according to sex, age, and activity.
Up to July 1, 1966, age for the purpose of determining the above requirements will be the attained age as of January 31, 1966. After July 1, 1966, age will be computed as of the preceding June 30.

 The first three clauses above have the effect of making the amount of assistance available to an AFDC family directly dependent upon the ages of the children in the family. As a general rule, the older each child is, the greater the amount of assistance provided by AFDC. *fn2" The manner in which the Department determines a child's age may, consequently, be of critical importance to a family dependent upon AFDC assistance.

 The last paragraph of WAC 388-28-065 controls the Department's determination of what a child's age is. Pursuant to this paragraph the Department does not use the actual age of a child in determining the level of benefits his family is entitled to receive; it uses instead an artificial age computed in accordance with the formula set out in the regulation. Under this "artificial age provision" a child's age as of June 30 of each year is established as the child's AFDC age for the next twelve months, irrespective of the child's actual age during that period. Thus a child might turn thirteen on July 2 of a given year and yet not become eligible to receive that level of assistance deemed necessary for a thirteen year old child until June 30 of the following year.

 Plaintiffs here all have children who have reached an age which would entitle their families to higher levels of assistance were the Department on an actual age basis rather than the fictitious age one. Several of the children celebrated birthdays as early as July 1969, but, because of an artificial age regulation, adjusted AFDC benefits were not available to their families until June 30, 1970 -- nearly a year after the age had actually been attained. *fn3"

 That situation has precipitated this action by plaintiffs on behalf of themselves, their natural and foster children and "all others similarly situated." The chief relief they seek is an injunction preventing the Director of the Department from enforcing the artificial age provision of WAC 388-28-065. *fn4" They contend that this provision violates the Equal Protection Clause of the Fourteenth Amendment and subverts basic policies and purposes of both the Social Security Act of 1935 and the public assistance legislation of the State of Washington. They also charge that the regulation is inconsistent with specific provisions of the Social Security Act and various federal regulations promulgated thereunder. They also contend that it contravenes the common law rule, as adopted by the State of Washington, for computing ages.

 We have determined that this case is properly a class action. *fn5" We have also determined that a substantial constitutional question has been raised and that plaintiffs' request for injunctive relief restraining defendant from the enforcement of a state-wide regulation on the ground of its unconstitutionality requires that this case be treated by a three judge court. Under the pendent jurisdiction of the Court we have proper jurisdiction over those challenges to WAC 388-28-065 which are not of a federal nature. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966).

 We have concluded that the Department of Public Assistance was not authorized under Washington law to employ a fictitious birth date when determining the level of assistance to which an AFDC child is entitled, and we therefore find it unnecessary to consider the further statutory and constitutional issues raised by plaintiffs.

 The common law rule for computing age is that one is deemed to have reached a given age at the earliest moment of the day preceding an anniversary of birth. See, e.g., People v. Schneider, 194 Misc. 746, 87 N.Y.S. 2d 680, rev'd on other grounds, 276 App. Div. 781, 92 N.Y.S. 2d 649 (1949); In re Bardol's Will, 164 Misc. 907, 300 N.Y.S. 60 (1937), aff'd 253 App. Div. 498, 4 N.Y. S. 2d 795, 254 A.D. 647, aff'd 278 N.Y. 543, 16 N.E. 2d 96 (mem.) (1938); 5 ...

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