OFFICES AND OFFICERS - STATE - DEPARTMENT OF PUBLIC ASSISTANCE - EXEMPTION OF $85.00 EARNED INCOME IN AID TO THE BLIND

OFFICES AND OFFICERS - STATE - DEPARTMENT OF PUBLIC ASSISTANCE - EXEMPTION OF $85.00 EARNED INCOME IN AID TO THE BLIND.

(1) Without an amendment to existing state law, the department of public assistance is not authorized to increase the exemption of the first fifty dollars to the first eighty-five dollars of earned income in aid to the blind assistance which is now embodied in the Federal Social Security Amendments of 1960.

(2) The state law must be amended by July 1, 1962, to embody the increased exemption to eighty-five dollars which was provided in the 1960 amendment to the Federal Social Security Act.

However, the legislature, if it so desires, may enact legislation to become effective at any time prior to July 1, 1962, and thus authorize the state department of public assistance to make the increased exemption effective prior to July, 1962.

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                                                               December 19, 1960

Honorable George C. Starlund
Director, Department of PublicAssistance
Olympia, Washington                                                                                          Cite as:  AGO 59-60 No. 166

Dear Sir:

            This is in answer to your request for an opinion of this office on a question which we have paraphrased as follows:

            (1) Is the department of public assistance required or permitted to exempt the first $85 of earned income plus one half of earned income of the aid to the blind assistance which was embodied in the Social Security Amendments of 1960?

            (2) If it is necessary to change the statutes of the State of Washington in order to take advantage of the  [[Orig. Op. Page 2]] new Federal Social Security Amendments, on what date must such enactments become effective?

            We answer your first question in the negative and your second question is answered in the analysis.

                                                                     ANALYSIS

            Public Law 86-778, 86th Congress, H.R. 12580, § 710, Social Security Amendments of 1960, reads as follows:

            "(a) Effective for the period beginning with the first day of the calendar quarter which begins after the date of enactment of this Act, and ending with the close of June 30, 1962, clause (8) of section 1002 (a) of the Social Security Act is amended to read as follows:  '(8) provide that the State agency shall, in determining need, take into consideration any other income and resources of the individual claiming aid to the blind; except that, in making such determination, the State agency shall disregard either (i) the first $50 per month of earned income, or (ii) the first $85 per month of earned income plus one half of earned income in excess of $85 per month;'.

            "(b) Effective July 1, 1962, clause (8) of such section 1002 (a) is amended to read as follows: '(8) provide that the State agency shall, in determining need, take into consideration any other income and resources of the individual claiming aid to the blind; except that, in making such determination, the State agency shall disregard the first $85 per month of earned income, plus one half of earned income in excess of $85 per month;'."  (Emphasis supplied.)

            The pertinent statute concerning the exemption of income in the aid to the blind program is found in RCW 74.04.005 (15), as follows:

            ". . .Provided, That in determining the amount of assistance to which a recipient of aid to the blind  [[Orig. Op. Page 3]] is entitled or to which any dependent of such recipient may be entitled under any category of public assistance, the department is hereby authorized to disregard as a resource the first fifty dollars per month of any earned income of such blind recipient who is otherwise eligible for an aid to the blind grant: . . ."

            In addition, we should like to call your attention to RCW 74.04.265, which provides as follows:

            "In the event federal laws are changed to so permit, the director shall issue such rules and regulations consistent therewith and with memorials of the legislature, as will recognize the earnings of any persons which commence or are increased after a grant is made to such person without the deduction in full thereof from the amount of their grants.  This may be done by exempting a percentage of earnings or increase of earnings subsequent to the making of a grant by the recipients of other classes of relief or by exempting such amount of earnings as the federal laws may require or permit.  Such percentage exemption, if possible, shall be made on a sliding scale."

            We have examined the memorials of the 1959 legislature and the only one which relates to the matter of the exemption of income of public assistance recipients is Senate Joint Memorial No. 5.  That memorial was in the form of a petition to congress to enact legislation exempting the first $50 of earnings of recipients of old age assistance, disability assistance and aid to dependent children.  Thus, that memorial has no application to the increased exemption of income in the aid to the blind program provided for under H.R. 12580, § 710, supra.  In addition, any interpretation of RCW 74.04.265 that changes in Federal laws made subsequent to the enactment of RCW 74.04.265 could be incorporated by rule and regulation of the director of the department of public assistance into the laws of this state, would raise serious question as to the constitutionality of the statute.  In the case of State ex rel. Kirschner v. Urquhart, 50 Wn. (2d) 131, 137, 310 P. (2d) 261 (1957), our supreme court stated as follows:

             [[Orig. Op. Page 4]]

            "Statutes adopting existing Federal rules, regulations, or statutes, are valid, but attempts to adopt future Federal rules, regulations, or statutes, are unconstitutional and void.  [Citing cases.]"

            It is a general rule of statutory construction that when a statute may be construed in either of two ways, one of which renders it unconstitutional, the constitutional construction must be adopted.  The rule is stated in Hammack v. Monroe St. Lbr. Co., 54 Wn. (2d) 224, 232, 339 P. (2d) 684 (1959), as follows:

            "'. . . In such cases the rule is that, where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional or open to grave doubt in this respect, the former construction and not the latter is to be adopted. . . .'"  (Emphasis supplied.)

            See also, Yelle v. Bishop, 155 Wash. Dec. 285 [[55 Wn.2d 286]], 347 P. (2d) 1081 (1960); Gruen v. Tax Commission, 35 Wn. (2d 1, 211 P. (2d) 651 (1949); AGO 33-34 No. 3038; opinion written to the Honorable Levy Johnson dated April 17, 1945; and AGO 51-53 No. 500 [[to A. B. Langlie, Governor on March 23, 1953]].

            We think it is clear from the foregoing that the department of public assistance is neither required nor permitted under existing law to increase the statutory exemption of $50 in the aid to the blind program found in RCW 74.04.005 (15) to the new ceiling of $85, found in the Social Security Amendments of 1960 without specific amendments to RCW 74.04.005, supra.

            In answer to your second question, the amendment quoted above clearly provides that from the first day of the calendar quarter after the day of enactment of this act (October, 1960), and ending June 30, 1962, it is permissive with the legislature of each state to either disregard the first $50 per month earned income or the first $85 per month earned income plus one half of earned income in excess of $85 per month.  However, subsection (b) makes it clear that effective July 1, 1962, it becomes mandatory that the department of public assistance takes into consideration the first $85 a month earned income plus one half of earned income in excess of $85 per month.

             [[Orig. Op. Page 5]]

            Accordingly, since the increased exemption must become effective by July 1, 1962, it is incumbent upon the 1961 legislature to enact legislation which will authorize the state department of public assistance to take into consideration the increased exemption of earned income in the aid to the blind program.  However, the legislature, if it so desires, may enact legislation to become effective immediately or at any time prior to July 1, 1962, and thus authorize the department of public assistance to make the increased exemption effective in aid to the blind grants prior to July 1, 1962.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JANE DOWDLE SMITH
Assistant Attorney General