The opinion of the court was delivered by: Robson, District Judge.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS
The defendants move this court to dismiss the amended complaint
in this class action challenging the constitutionality of the
Illinois Public Aid Code. The challenged provisions limit the
maximum shelter allowance available to public aid recipients to
$90 per month,*fn1 but also provide for exceptions to the
limitation. Ill.Rev.Stat. 1967, ch. 23 §§ 12-4.11 and 12-14. The
class is comprised of all recipients of public aid in Illinois
who are members of a family unit of two or more and who pay more
than $90 per month for shelter, but who receive $90 or less from
the Cook County and Illinois Departments of Public Aid for this
purpose.*fn2 The defendants are Harold O. Swank, Director of the
Illinois Department of Public Aid, and William H. Robinson,
Director of the Cook County Department of Public Aid. The
defendants are charged by law with the enforcement of the Public
Aid Code. Ill.Rev.Stat. 1967, ch. 23 §§ 12-1 and 12-2.
This case was remanded to this court upon the finding by a
three-judge court that the statute in question is constitutional
on its face. Metcalf v. Swank, 293 F. Supp. 268 (N.D.Ill. 1968).
For the reasons set forth below, this court is of the opinion the
motion to dismiss the amended complaint should be granted.
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 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 ...