before this court. Count I of the amended complaint is therefore
In Count II of the amended complaint, the plaintiff seeks a
judgment declaring unconstitutional the manner in which the
shelter allowance provisions are applied and administered. The
plaintiff contends that the administration of these provisions
violate the Due Process and Equal Protection Clauses of the
Fourteenth Amendment of the Constitution of the United States, as
well as the standards set forth in the Social Security Act,
42 U.S.C. § 301 et seq.
FAILURE TO EXHAUST AVAILABLE STATE REMEDIES
The Illinois Public Aid Code specifically requires the Illinois
Department of Public Aid to "* * * provide a livelihood
compatible with health and well-being for persons eligible for
financial aid." Ill.Rev.Stat. 1967, ch. 23 § 12-4.11. The Code
provides explicit administrative and judicial appellate
procedures to be followed by persons who have been denied aid
which such recipients or potential recipients deem necessary for
their health and well-being. Since the initiation of this suit,
all of the representative plaintiffs except Mrs. Metcalf have
obtained exceptions to the rental maximum.*fn3 The remaining
representative plaintiff has not pursued any of her available
state remedies. An administrative appeal may be taken within 60
days after a decision is rendered by a county department of
public aid, or within 30 days after the filing of an application
upon which the county department fails to act. Ill.Rev.Stat.
1967, ch. 23 § 11-8.*fn4 An appellant's case must be reviewed, and
the applicant is statutorily entitled to appear in person, to be
represented by counsel, and to present all relevant matter in
support of a claim. Ill.Rev.Stat. 1967, ch. 23 § 11-8.1.
Generally, a decision on appeal must be rendered within 60 days
from the date of the filing of the appeal. Ill.Rev.Stat. 1967,
ch. 23 § 11-8.6. Judicial review of an adverse administrative
appellate decision is then available in the Illinois courts
pursuant to the Administrative Review Act. Ill.Rev.Stat. 1967,
ch. 110 § 264 et seq. Constitutional questions can be raised in
a complaint for judicial review. E.g., Winston v. Zoning Board
of Appeals, 407 Ill. 588, 95 N.E.2d 864 (1951); Gadlin v. Auditor
of Public Accounts, 414 Ill. 89, 110 N.E.2d 234 (1953); Howard v.
Lawton, 22 Ill.2d 331, 175 N.E.2d 556 (1961). A suit in mandamus
is also available to compel the defendants to perform their
duties as prescribed by the Public Aid Code. Ill.Rev.Stat. 1967,
ch. 87 § 1. This court finds the state administrative and
judicial remedies available to the plaintiff wholly consistent
with the requirements of due process.
The plaintiff contends that she need not exhaust the
administrative remedies provided by Illinois law because she is
asserting a violation of her civil and constitutional rights, and
federal jurisdiction is invoked under 28 U.S.C. § 1343. It is the
plaintiff's contention that in all cases where federally
protected rights are allegedly violated by a state administrative
agency, a complainant may bypass the orderly procedures
established by that agency, the procedures for review of the
agency's actions established by state law, and sue its officers
in a federal court at any stage. This court does not agree.
The rule that administrative proceedings must be exhausted
prior to resort to judicial relief has been consistently
recognized by the Supreme Court. E.g., Alabama Public Service
Commission v. Southern Railway Co., 341 U.S. 341, 71 S.Ct. 762,
95 L.Ed. 1002 (1951); Aircraft & Diesel Equipment Corp. v.
Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947).
Recently, the Supreme Court has exempted actions brought under
the Civil Rights Act from the exhaustion requirement under
certain conditions. McNeese v. Board of Education, 373 U.S. 668,
83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Damico v. California,
389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); Houghton v.
Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); King
v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968).
However, this court does not read the foregoing decisions as
giving civil rights plaintiffs the unqualified right to bypass
state administrative remedies. Not one of the decisions relied
upon by the plaintiff presented a situation where there was a
speedy, viable state administrative remedy which the plaintiff
could have pursued. Under the particular circumstances presented
in each case, pursuance of administrative procedures would have
been futile. Such is not the case here. The defendants administer
a statute constitutional on its face. That statute has built in
procedural safeguards, and provides for a speedy determination of
administrative appeals. The plaintiff may pursue her
administrative appeals without undergoing deprivation of the
public assistance funds she presently receives. It is purely
speculative at this point whether or not the plaintiff would
receive an exception to the shelter allowance maximum if she
pursued her administrative remedies.
This court is of the opinion that the plaintiff cannot attack
the constitutionality of a lower echelon administrative decision
denying her request for a rental allowance exception without
first raising such questions within the framework provided by
Illinois law. Before a federal court takes the drastic measure of
assuming supervision over a major state administrative program,
the plaintiff must present a record sufficient to show that the
manner in which that program is administered violates her
constitutional rights. Count II of the amended complaint attacks
threshold administrative decisions allegedly inconsistent with
the standards required by a valid state law. Fair and adequate
administrative procedures are available to correct the alleged
inconsistencies and conflicts. This court cannot rule that a
statute is unconstitutionally administered when the plaintiff
herself has not explored the available avenues of administration,
and she merely speculates that the entire system is arbitrary.
The plaintiff has not availed herself of the opportunities to
properly present her grievances to those whose performance of
statutorily-imposed duties and responsibilities are under attack.
The application of the statute in question to the plaintiff, and
to those similarly situated, is not fully before this court.
Count II of the amended complaint must therefore be dismissed for
failure to exhaust available state administrative remedies.
FAILURE TO STATE A SUBSTANTIAL CONSTITUTIONAL CLAIM
Presentation of a substantial constitutional claim is a
condition precedent to allowance of a civil rights action where
state administrative remedies have not been exhausted. See King
v. Smith, 392 U.S. 309, 312, n. 4, 88 S.Ct. 2128, 20 L.Ed.2d 1118
(1968). The allegation that the shelter allowance provisions are
unconstitutional on their face, as asserted in Count I of the
amended complaint, has previously been found to be without
substance by the three-judge court. Metcalf v. Swank, supra. This
court is of the opinion that the Count II allegation that the
statute is unconstitutionally administered also fails to present
a substantial constitutional claim.
The plaintiff claims that the number of rental exceptions to
the $90 maximum allowance available and granted is inadequate. It
is uncontroverted that at present 1,200 exceptions are available,
allocated on the basis of 90% for Cook County and 10% for all
other Illinois counties. It is also uncontroverted that
the Illinois and Cook County Departments of Public Aid seek and
obtain additional exceptions from the appropriate state
legislative committee from time to time as the reserve of
exceptions is depleted. The plaintiff does not allege that rental
allowance exceptions have been exhausted and are no longer
available to large families, nor that she was denied a rental
allowance exception because the number available was inadequate.
This allegation therefore does not state a constitutional claim.
The plaintiff contends that the administration of the shelter
allowance provisions is unconstitutional because rental
exceptions are granted only to persons who live in buildings
which comply with minimal standards set by the Chicago Housing
Code. Municipal Code of the City of Chicago, §§ 78.11, 78.20. The
Chicago Housing Code establishes standards for cooking, heating
and sanitary equipment necessary to promote health, suppress
disease and protect the safety of occupants of dwellings, and of
neighboring properties; standards for ventilation, light, space
and means of egress which promote health and preserve safety; and
designates the health and safety maintenance responsibilities of
owners, operators, and occupants of dwellings. The standards set
forth are minimal requirements for human habitation, and are
designed to protect the public health, safety, and welfare.
Furthermore, all rent allowances may be withheld when building
violations are discovered and not timely corrected by the
landlord in dwellings occupied by welfare recipients.
Ill.Rev.Stat. 1967, ch. 23 § 11-23. The requirement that a
dwelling must meet minimal standards for human habitation before
its occupant can receive an exception to the shelter allowance
maximum is hardly an adequate basis for a claim of invidious
The plaintiff claims that the manner in which the shelter
allowance exceptions are administered is unconstitutional because
welfare recipients must request exceptions instead of receiving
them automatically as a matter of course. This claim is patently
frivolous. The same argument might be advanced against requiring
a prospective public aid recipient from following any application
procedures, and submitting to any investigation of his
eligibility for any form of public aid.
The plaintiff also claims that long delays occur before a
request for a rental allowance exception is acted upon. However,
the Public Aid Code provides a remedy for inaction. If the county
department of public aid fails to act within 30 days of the
filing of an application, an administrative appeal may be
immediately taken. Ill.Rev.Stat. 1967, ch. 23 § 11-8. It is also
contended that exceptions are denied for "frivolous reasons."
This allegation is unsupported and conclusory.
Finally, the plaintiff claims that even when an exception is
granted, the rental allowance is inadequate to provide shelter
for a large family. It is uncontroverted that the maximum shelter
allowance available under the present exception system is $135
excluding the allowance available for utilities and furnishings.
Authorization for rental allowances exceeding $135 must be
submitted to the appropriate state legislative committee for
approval. Determining a ceiling for exceptions to the maximum
shelter allowance which is consistent with preserving the health
and well-being of public aid recipients is a matter of
legislative judgment necessarily involving evaluation of local
housing conditions, and the rental policies practiced by local
landlords. A monetary limitation is set for exceptions to the
normal shelter allowance maximum. However, the amount established
as a ceiling is flexible, subject to a legislative determination
of changed conditions. Such a system of administering and
applying the Illinois Public Aid Code does not discriminate
invidiously against large poor families. Nor do any of the many
other claims discussed above approach
constitutional dimensions which would justify the
assumption of jurisdiction by this court absent exhaustion of
available state administrative remedies.
In Count III of the amended complaint, the plaintiff alleges
that the manner in which the shelter allowance provisions are
administered violates the standards established by the Illinois
Public Aid Code. This count exclusively involves questions of
Illinois law, and is devoid of any basis for federal
It is therefore ordered that the defendants' motion to dismiss
the amended complaint be, and it is hereby granted, and the cause
is hereby dismissed.