Before, Fairchild, Circuit Judge, and Lynch and Napoli,
The opinion of the court was delivered by: 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.*fn1
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
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.
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.*fn2 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.
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
Act*fn3 does not grant jurisdiction in cases involving alleged
denials of the equal protection clause of the Fourteenth
amendment. They cite Ortega v. Ragen.*fn4 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.*fn5
Second, defendants contend that plaintiffs have failed to
exhaust administrative remedies. While ch. 23 § 11-8*fn6 does
allow administrative review from adverse decisions concerning
categorical aid and while ch. 23, § 11-8.7*fn7 does provide for
judicial review, such review, even if it culminated in setting
aside the residence requirement, which defendants do not ...