ROBERT JOSEPH VINCENT et al., Plaintiffs and Respondents, v. THE STATE OF CALIFORNIA et al., Defendants and Appellants, 22 Cal. App. 3d 566

Opinion DUNN, J. On June 30, 1970 plaintiffs commenced a class action (Code Civ. Proc., § 382) for declaratory and injunctive relief from the provisions of Welfare and Institutions Code

section 13700 and a regulation promulgated pursuant thereto which prohibits payment for attendant care rendered to a recipient of benefits under the Aid to the Totally Disabled (ATD) program (Welf. & Inst. Code, § 13500 et seq.; 42 U.S.C.A. § 1351 et seq.) when such care is provided by the recipient’s spouse with whom he is living. Plaintiffs are two ATD recipients and their wives, who furnish attendant care to the recipients.

Plaintiffs are residents of Los Angeles County, but the purportedly represented consists, of “all ATD recipients who have attendant service provided by a spouse who has given up other employment in order to serve as an attendant and the spouses who are providing such services.” Defendants are the State of California and its Department of Social Welfare (SDSW), the County of Los Angeles and its Department of Public Social Services (DPSS), and the directors of these agencies, which collectively administer the ATD program throughout the state.

The complaint alleged: in 1964 each of the plaintiff wives gave up outside employment in order to work as an attendant for her totally disabled husband; since that time she had worked continuously as his attendant, and defendants had paid a fixed monthly sum for such service; however, in April 1970 defendants informed plaintiffs that after July 1st the wives no longer would be paid for their attendant services; such refusal to pay was based on a regulation (§ 44-239.211 of SDSW Eligibility Assistance Standards Manual) promulgated by the SDSW which was to become effective July 1,' 1970, and which provided that no allowance for attendant service would be made for the spouse of an ATD recipient serving as attendant when the recipient was residing with the spouse; the regulation was adopted pursuant to Welfare and Institutions Code

section 13700, which provides in pertinent part that “[a]llowance for attendant services shall not be made when rendered by a responsible relative with whom the recipient is living”; under other provisions of the regulation, recipients of Old Age Security (OAS) and Aid to the Blind (AB) were permitted to have their spouses serve as paid attendants.

It was further alleged that the statute and regulation were void because: (1) they unreasonably discriminated against plaintiffs as ATD recipients and ATD attendant spouses, and hence violated the equal protection clause of the Fourteenth Amendment of the United States Constitution; and (2) they were in conflict with 42 United States Codes Annotated

section 1351 et seq. (grants to states for aid to the permanently and totally disabled) and the regulations promulgated thereunder by the Department of Health, Education and Welfare (HEW). Plaintiffs sought judgment declaring that the statute and regulation were void and enjoining defendants from terminating attendant care payments to plaintiffs on the ground such care was being provided by a spouse with whom the ATD recipient was living.

Defendants filed an answer admitting: since 1964 they had paid plaintiff ATD husbands for attendant services rendered by their spouses; their refusal to make such payments after July 1, 1970 was based on the SDSW regulation which was adopted pursuant to Welfare and Institutions Code

section 13700; under the regulation, OAS and AB recipients were entitled to payment for services of their spouses as atttendants. As an affirmative defense, it was alleged that the complaint failed to state a cause of action because plaintiffs had not exhausted their administrative remedy. Plaintiffs moved for

summary judgment (Code Civ. Proc., § 437c). On October 6, 1970

summary judgment was entered on the statutory grounds that there was no defense to the action and that no triable issue of fact was presented. The judgment ordered the answer stricken and declared that

section 13700 and the SDSW regulation were void insofar as they provided for termination of attendant care payments to plaintiffs and all others similarly situated, such card being provided by a spouse with whom the ATD recipient was living. The stated basis of the judgment was: (1) that the statute and regulation violated the equal protection clause, and (2) they were in conflict with 42 United States Codes Annotated-section 1351 et seq. and the HEW regulations promulgated pursuant thereto. Defendants appeal from the judgment (Code Civ. Proc., §§ 437c, 904.1, subd. (a)) on a clerk’s transcript, only.

They concede there is .no controversy as to the material facts, which appear as follows from the pleadings and the affidavits: respondents, individually and as a class, are either ATD recipients or their spouses who have given up other employment in order to serve as attendants to the recipients; the recipients and the spouses live together; payment for attendant services rendered by spouses was denied after July 1, 1970 because of the provisions of Welfare and Institutions Code

section 13700 and its companion regulation,

section 44-239.211 of the SDSW Eligibility Assistance Standards Manual; under other provisions of the regulation, spouses of OAS and AB recipients may be paid for their attendant services. There were no issues of fact to be tried. The sole issues presented were issues of law, which appropriately may be determined by

summary judgment. (Loma Portal Civic Club v. American Airlines, Inc. (1964) 61 Cal.2d 582, 588 [39 Cal.Rptr. 708, 394 P.2d 548]; Nelson v. United States Fire Ins. Co. (1968) 259 Cal.App.2d 248, 251 [66 Cal.Rptr. 115]; Magna Development Co. v. Reed (1964) 228 Cal.App.2d 230, 234 [39 Cal.Rptr. 284]; Goldstein v. Hoffman (1963) 213 Cal.App.2d 803, 811 [29 Cal.Rptr. 334].) The only question on this appeal is whether the trial court properly resolved these issues, upon which its judgment was based, by determining that

section 13700 and its companion regulation violate the equal protection clause and are inconsistent with 42 United States Codes Annotated

section 1351 et seq. and the HEW regulations. I. Equal Protection The Welfare and Institutions Code establishes separate programs for old age security (OAS, § 12000 et seq.), aid to the blind (AB, § 12500 et seq.) and aid to the needy disabled (including the totally disabled, ATD, § 13500 et seq.) Sections 12152 and 12652 unqualifiedly authorize payment for attendant services rendered to OAS and AB recipients, respectively. On the other hand,

section 13700 prohibits payment for attendant services rendered to a needy disabled (including ATD) recipient by “a responsible relative with whom the recipient is living.” The regulation in question,

section 44-239.211 of the SDSW Eligibility Assistance Standards Manual, authorizes an allowance for attendant care furnished OAS and AB recipients by a spouse who “is able to work but is unable to accept employment or must relinquish employment in order to care for the disabled recipient.” As to ATD recipients, however, the regulation states that "[a]llowance of attendant service shall not be made ... for the spouse of an ATD recipient serving as the attendant when the recipient is living with such relative.” Hence, OAS and AB recipients are not denied payment for their spouses’ attendant services on the ground that they reside with the recipient, whereas ATD recipients are denied payment on such ground.

The Fourteenth Amendment permits the states a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. (McGowan v. Maryland (1961) 366 U.S. 420, 425 [6 L.Ed.2d 393, 399, 81 S.Ct. 1101].) Thus, classification does not of itself deprive a group of equal protection. (Carrington v. Rash (1965) 380 U.S. 89, 92 [13 L.Ed.2d 675, 678, 85 S.Ct. 775].) However, the classification must be based upon some difference between the classes which is pertinent to the purpose for which the legislation is designed. (Asbury Hospital v.

Cass County (1945) 326 U.S. 207, 214 [90 L.Ed. 6, 13, 66 S.Ct. 61]; Royster Guano Co. v. Virginia (1920) 253 U.S. 412, 415 [64 L.Ed. 989, 990-991, 40 S.Ct. 560]; County of San Bernardino v. Way (1941) 18 Cal.2d 647, 658 [117 P.2d 453].) “The equal protection clause forbids the establishment of laws which arbitrarily and unreasonably create dissimilar classifications of individuals when, looking to the purpose of those laws, such individuals are similarly situated.” (Williams v.

Field (9th Cir. 1969) 416 F.2d 483, 486.) Appellants suggest that one reason justifying denial of payment for services rendered by ATD attendants who reside with their recipient spouses is that, by virtue of the marriage contract, one spouse is obligated to care for the other without remuneration. (Civ. Code, § 5100; Estate of Sonnicksen (1937) 23 Cal.App.2d 475, 479 [73 P.2d 643].) Such preexisting duty provides a constitutionally sound basis for a classification which denies compensation for care rendered by a husband or wife to his spouse who is receiving welfare assistance. (County of San Mateo v.

Boss (1971) 3 Cal.3d 962, 967-968 [92 Cal.Rptr. 294, 479 P.2d 654]; Department of Mental Hygiene v. Kolts (1966) 247 Cal.App.2d 154, 163-165 [55 Cal.Rptr. 437]; Dept. of Mental Hygiene v. O'Connor (1966) 246 Cal.App.2d 24, 28-29 [54 Cal.Rptr. 432].) However, no valid reason has been offered for permitting the distinction to be made between ATD recipients on the one hand and the OAS and AB recipients on the other.

There doubtless are many differences among the three groups of recipients which constitutionally permit their being treated differently for purposes such as establishing eligibility for assistance, level of benefits, special services, and other factors. But insofar as one spouse has a duty created by the marriage contract to care for the other without compensation when they are living together, recipients of aid to the aged, aid to the blind and aid to the disabled are similarly situated.

As stated in In re Antazo (1970) 3 Cal.3d 100, 110 [89 Cal.Rptr. 255, 473 P.2d 999]: “However the equal protection clause does not require ‘Absolute equality’ (Douglas v. California, supra, 372 U.S. 353, 357 [9 L.Ed.2d 811, 814, 83 S.Ct. 814]), is not ‘a demand that a statute necessarily apply equally to all persons’ (Rinaldi v. Yeager (1966) 384 U.S. 305, 309 [16 L.Ed.2d 577, 580, 86 S.Ct. 1497]) and permits a state to ‘provide for differences so long as the result does not amount to ... an “invidious discrimination.” ’ (Douglas v.

California, supra, at p. 356 [9 L.Ed.2d at p. 814].) Simply stated the ‘concept of the equal protection of laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ ” The amounts of aid which may be paid to recipients of OAS, AB and ATD are not computed in the same way. Thus, OAS (Welf. & Inst.

Code, § § 12150, 12151) and AB (§ § 12650, 12651) recipients are eligible for flat grants, whereas recipients of ATD (§§ 13700, 13701) receive an amount . . not to exceed an average grant computed statewide . . . of one hundred dollars ($100) per month.” OAS and AB recipients who require attendant care may be entitled to additional flat grants (§§ 12152, 12652), whereas ATD recipients may receive funds for attendant care only “[w]ithin the limit of the average grant set forth in this section.” From these differences it would appear the programs are differently funded, justifying on that basis the denial of attendant care payments for a spouse with whom an ATD recipient is living.

However, a payment for ATD attendant care would affect the “average grant computed statewide” whether paid for services of a resident spouse or some other attendant. The apparent differences in funding thus afford no justification for the discrimination here found. It follows that

section 13700 of the Welfare and Institutions Code and

section 44-239.211 of the SDSW Eligibility Assistance Standards Manual create an arbitrary classification and deny equal protection of the laws to ATD recipients and their attendant spouses insofar as the statute and regulation prohibit payment for attendant care rendered to an ATD recipient by his spouse merely because they are living together. Thus, although there is no requirement that the state provide aid to the aged, blind or needy disabled, once it undertakes to do so the state may not “invidiously discriminate” between persons similarly situated. II.

Consistency With Federal Statutes and Regulations California’s ATD program (Welf. & Inst. Code, § 13500 et seq.) is financed in part by funds received from the federal government under 42 United States Code Annotated

section 1351 et seq. (grants to states for aid to the permanently and totally disabled), subchapter XIV of the Social Security Act. Therefore, in administering the program and expending such funds, this state must comply with applicable provisions of the Social Security Act and the regulations adopted pursuant thereto by the Department of HEW. (See Welf. & Inst. Code, § 10600; Rosado v. Wyman (1970) 397 U.S. 397, 408, 422-423 [25 L.Ed.2d 442, 453, 461, 90 S.Ct. 1207].) Any state statute or regulation inconsistent with such federal provisions is to that extent invalid. (King v.

Smith (1968) 392 U.S. 309, 333, fn. 34 [20 L.Ed.2d 1118, 1134, 88 S.Ct. 2128].) However, our affirmance of the trial court’s judgment under the equal protection clause makes it unnecessary to consider this second ground, which it used to support the same judgment. The judgment is affirmed. Jefferson, J., concurred. As to the Vincents, we learn from affidavits (see fn. 5) that Mr. Vincent became a quadriplegic as the result of an accident in December 1963. He and Mrs. Vincent were not married until January 1967. She had worked for a bank.

During the period from June to December 1964 she received instruction from doctors and others on the care to be given to Vincent. When Vincent was discharged from the hospital in December 1964 she' left her job with the bank in order to take care of him.

Plaintiffs alleged that the statute and regulation were void on the further grounds, inter alia, that they (1) violated the public policy of the State of California against encouraging divorce in that an ATD attendant spouse had to divorce or separate from the recipient spouse in order to be paid for attendant services, and (2) were in conflict with Welfare and Institutions Code

section 13600, which provides that no relative of an ATD recipient shall be liable to contribute to his support. As the judgment was not based upon either of these grounds, they will not be considered herein. By the terms of the judgment, the court retained jurisdiction of the action for the purpose of granting any injunctive relief which might become necessary. Contrary to all rules on appeal (cf. Cal.

Rules of Court, rule 13), respondents reprehensibly have gone far outside the record, attempting to add to it by attaching appendices to their brief and arguing such matter as though it were properly brought before us. We cannot condone this practice and have not considered the material, none of which was certified to be part of the record as required by rule 8, California Rules of Court. The affidavits filed in connection with the motion for

summary judgment are not included in the record on appeal. Therefore, as authorized by rule 12(a), California Rules of Court, we have had the superior court file transmitted to us in order that we might review the affidavits. After entry of the

summary judgment,

section 13700 was amended by addition of the italicized language, as follows: “. . . Allowance for attendant services shall not be made when rendered by a responsible relative with whom the recipient is living, except when the director determines that the provision of such services is necessary to prevent the institutionalization of the recipient and cannot be obtained from any person other than the responsible relative.” (Stats. 1970, ch. 1432, § 1, p. 2779, eff. November 23, 1970.) Effective December 1, 1970 the regulation was amended to conform to the statutory amendment.

However, such amendments did not render moot the issues determined by the judgment, for the statute and regulation still prohibit payment of attendant care fees for ATD spouses who reside with the recipients.

Section 12152: “If the physical or mental condition of a recipient of aid [to the aged] ... is such that he requires the services of a full-time or part-time attendant . ... , he shall be entitled to an additional grant in an amount sufficient to pay for those services . . . .”

Section 12652: “If the physical condition of a recipient of aid [to the blind] . . . is such that he requires the services of a full-time or part-time attendant . . . , he shall be entitled to an additional grant- in an amount sufficient to enable him to pay for those services . . . .”

Section 13700: “. . . Within the limit of the average grant set forth in this section, the department may provide for payment of an additional sum to those recipients [of aid to the needy disabled] whose physical or mental condition is such that they require the services of a full- or part-time attendant . . . Allowance for attendant services shall not be made when rendered by á responsible relative with whom the recipient is living . . . .” Neither the statute nor the regulation provides for payment to be made to the attendant spouses, but only to the aid recipient.

Accordingly, some question might have been raised as to whether the attendant spouses were in position to complain. However, the point apparently was not raised below for which reason it is not considered here.