Johnson v. Robinson, Civ. A. No. 67 C 1883.

• Decision Date: 05 May 1969
• Docket Number: Civ. A. No. 67 C 1883.
• Citation: 296 F. Supp. 1165
• Parties: Gwendolyn JOHNSON, individually and on behalf of her minor child, Charles James Johnson; and Susan Brewer, all individually and on behalf of all others similarly situated, Plaintiffs, v. William H. ROBINSON, Director, Cook County Department of Public Aid; Harold O. Swank, Director, Illinois Department of Public Aid; William G. Clark, Attorney General of the State of Illinois, Defendants.
• Court: U.S. District Court — Northern District of Illinois

296 F. Supp. 1165

Gwendolyn JOHNSON, individually and on behalf of her minor child, Charles James Johnson; and Susan Brewer, all individually and on behalf of all others similarly situated, Plaintiffs, v. William H. ROBINSON, Director, Cook County Department of Public Aid; Harold O. Swank, Director, Illinois Department of Public Aid; William G. Clark, Attorney General of the State of Illinois, Defendants.

Civ. A. No. 67 C 1883.

United States District Court N. D. Illinois, E. D.

December 28, 1967.

Judgment Affirmed May 5, 1969.

COPYRIGHT MATERIAL OMITTED

Robert W. Bennett, Arthur K. Young, Chicago, Ill., Sheldon Nahmod, Evanston, Ill., for plaintiffs.

William G. Clark, Atty. Gen., State of Illinois, John J. Stamos, State's Atty., Cook County, Illinois, Daniel P. Coman, Asst. State's Atty., Cook County, Ill., for defendants.

Before, FAIRCHILD, Circuit Judge, and LYNCH and NAPOLI, District Judges.

Judgment Affirmed May 5, 1969. See 89 S.Ct. 1622.

FAIRCHILD, Circuit Judge.

This is an action for injunction against enforcement of certain provisions of the Illinois Statutes upon the ground of their unconstitutionality. The challenged provisions require an applicant for certain welfare aids to have continuously resided for one whole year in this state immediately preceding the application for aid.¹

Plaintiff Gwendolyn Johnson is a citizen of the United States and a resident of Chicago, Illinois, whose application for aid to dependent children or general assistance has been denied because her present period of continuous residence in Illinois is less than one year. She sues individually, and on behalf of her two minor children, and all others similarly situated.

Plaintiff Susan Brewer, is a seventy-four year old widow who is citizen of the United States and a resident of Evanston, Illinois, whose application for aid to the aged or for general assistance had been denied before commencement of this action because her present period of continuous residence in Illinois is less than a year. She sues individually and on behalf of all others similarly situated.

Defendants are state and county officers charged with administration of the statutes in question, as well as the attorney general of Illinois.

Plaintiffs moved for a preliminary injunction. Each defendant moved to dismiss. A hearing was held on these motions on December 11, 1967.

On the basis of the present record, and for the purpose of the motion for preliminary injunction, we find the facts and reach the conclusions stated herein.

Prior to 1964 Mrs. Johnson lived with her aunt and uncle in Georgia. After they moved to Chicago she went to college in Arkansas, but visited frequently in Chicago. After she married she moved to New Jersey with her husband.

On April 10, 1967, she, her husband, and child moved to Chicago so her husband could seek work and she could be near her aunt and uncle. Near the end of April her husband deserted her. Since living in Illinois Mrs. Johnson, who has recently given birth to her second child, has stayed in the crowded apartment of her aunt and uncle. Mrs. Johnson is without financial resources and has been living by the generosity of her aunt and uncle. She asserts that she is eligible for aid to dependent children as well as general assistance except for the residence requirement, and the record does not show her otherwise ineligible.

Susan Brewer was born in Ireland on June 22, 1893. She came to Evanston, Illinois, in 1922 where she acquired American citizenship. She has resided in Evanston since her arrival in the United States except for the period of November, 1964 to August, 1967, when she lived with her daughter in California. When her daughter moved back to Illinois, Susan Brewer returned to Evanston. The only source of income is a small monthly social security check.² She asserts that she is eligible for aid to the aged, except for the residence requirement, and the record does not show her otherwise ineligible.

Motions to Dismiss.

Defendant Robinson, director of Cook County department of public aid, moved to dismiss the action as to him because he was only an agent of defendant Swank who is director of public aid for the state. Since defendant Robinson directs all categorical aid in Cook County and all general assistance in the city of Chicago, he is properly a party to this suit.

Defendants Swank and Clark move to dismiss as to themselves on several grounds. First, they contend that the Civil Rights Act³ does not grant jurisdiction in cases involving alleged denials of the equal protection clause of the Fourteenth amendment. They cite Ortega v. Ragen.⁴ That decision is distinguishable on its facts. There are a number of decisions recognizing a claim of denial of equal protection under sec. 1983, in circumstances comparable to the present ones.⁵

Second, defendants contend that plaintiffs have failed to exhaust administrative remedies. While ch. 23 § 11-8⁶ does allow administrative review from adverse decisions concerning categorical aid and while ch. 23, § 11-8.7⁷ does provide for judicial review, such review, even if it culminated in setting aside the residence requirement, which defendants do not suggest would happen, is not an adequate remedy in view of the immediacy of plaintiffs' needs.⁸

Defendant, William G. Clark, Illinois' attorney general, who seeks dismissal, has some duties under the welfare laws but those duties are not relevant to the problem presented here.⁹

We deny these motions to dismiss except that we grant the motion to dismiss as to defendant Clark.

Equal Protection of the Laws.

Plaintiffs in this action are residents of Illinois, are in need, and (except for duration of residence) would seem to be eligible for categorical or general assistance. The provisions under attack divide the entire group of needy and eligible Illinois residents into two classes: Aid is denied (except for temporary emergency general assistance) to the class, which includes plaintiffs, who have resided in the state less than one year immediately past. Aid is granted to those who have resided continuously within Illinois for the past year.

The ultimate question is whether the classification is reasonable in the light of some proper legislative purpose. If not, the provision denies equal protection of the laws.

The question has recently been decided adversely to defendants in several other districts.¹⁰ A portion of the opinion in Ramos, supra, is attached as an appendix to this opinion, and the views expressed therein are adopted for the purpose of this motion.

Defendants contend that the provision for temporary general assistance in hardship cases sufficiently blunts the discriminatory effect of the otherwise applicable one year residence requirement to defeat plaintiffs' claim. Defendants have not produced evidence as to the degree to which the provision alleviates the situation of needy recent arrivals, and for the purpose of this motion we find that it is not readily made available on any basis to applicants who lack the residence requirement.

We conclude that plaintiffs are entitled to a preliminary injunction, enjoining defendants, their successors, and persons under their control from denying to an applicant aid to the aged, blind or disabled, aid to dependent children, or general assistance where such denial is based upon lack of fulfillment of the one year residency requirements of the Illinois Public Welfare Code. Counsel for plaintiffs are directed to prepare and submit to defense counsel and the court a suitable form of decree.

Class Action.

Under Rule 23¹¹ we hereby determine that this is a properly maintained class action. The class is made up of all those residents of Illinois who need welfare aid or general assistance in the state and who have failed to reside therein for one year immediately past. Under the circumstances the best practicable notice to members of the class represented by plaintiffs is the coverage by the news media which will result from the filing of this decision. The members of the class are hereby notified that the court will exclude anyone from the class if he so requests within 30 days of the filing date; the judgment will include all members who do not request exclusion and any member not requesting exclusion may, if he desires, enter an appearance through counsel.

We emphasize that what has been said in this opinion is based on the pleadings and affidavits and the submission by the parties of legal issues upon a motion for preliminary injunction, and the decision at this time is limited to the granting of such injunction. In the nature of a case where the main or sole issues are of law, the decision on preliminary injunction tends to be the decision on the merits. We do not, however, foreclose a trial if any party considers there are issues of fact or further briefing and argument on the law if desired. We direct each party to inform the court within 30 days from the date the opinion is filed whether he wishes a trial in order to establish facts, or a hearing on issues of law. After learning the desires of the parties, we will determine the course of further proceedings herein, or proceed to final disposition.

APPENDIX

Excerpts from Ramos v. Health and Social Services Board (E.D.Wis., Nov. 21, 1967), 276 F.Supp. 474, 477-78.

We have considered the purposes which might be thought to be served by a provision of this sort, whether such purpose is a proper legislative purpose, and whether the provision is reasonable in the light of such purpose.

By definition, the one year residence requirement is not a waiting period required of all applicants. Whatever arguments might be legitimately made in favor of a waiting period required of every applicant, regardless of length of residence, they can not reasonably be used to support a provision whereby aids are denied to all needy and otherwise eligible applicants who have resided in the state less than one year and...