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November 25, 1969


Before Kiley, Circuit Judge, and Parsons and Napoli, District Judges.

The opinion of the court was delivered by: Parsons, District Judge.


This is an action for injunctive and declaratory relief under 42 U.S.C. § 1983. The only facts we have are those admitted by the pleadings. The named plaintiffs are recipients of public assistance in Illinois, each of whom had assistance terminated, suspended, or reduced, without a prior hearing of any kind.

Plaintiff Clara Goliday, a recipient of public assistance since 1958, failed to receive her regular assistance grant of $251.00 in October, 1968. After a personal request and additional delay, a check was issued to her for $166.00. The following month, she received a check for $121.00. Upon inquiry into the reasons for the two unexplained reductions, she was informed that the department had information indicating that she was purchasing a home. When confronted with this information, she filed an intra-departmental appeal contesting the reduction. As of the date of the filing of the complaint in this action, January 14, 1969, no hearing had been held.

Plaintiff Carrie Reed and her three children had been receiving assistance of approximately $250.00 per month when, in November of 1968, instead of receiving the second of her bi-monthly checks, she received a notice that her aid was being terminated. She requested an explanation and was informed that her son, Anthony, had been found to earn income the previous month in excess of the monthly grant, thus rendering her ineligible for further assistance. She was afforded no prior hearing on that determination.

Plaintiff Vera Smith received emergency assistance of $143.00 in July, August, and September of 1968. In October, 1968, she received no assistance. She was neither notified that the grant had been terminated, nor of the right to appeal such termination. Although she has requested an explanation for the termination on several occasions, at the time of the filing of this suit, none had been forthcoming.

The intervening plaintiff, Brenda Davidson, and her nine children received public assistance until January, 1969, when her aid was suspended without notice. She requested an explanation and was told that her landlady had called the Department of Public Aid and stated that Mrs. Davidson was not paying rent. The department stated that she would not receive assistance until an investigation was completed.

Plaintiffs all seek a declaratory judgment to the effect that Sections 11-7 and 11-16 of the Illinois Public Aid Code, Ill.Rev.Stat. 1967, Ch. 23, § 11-7 and § 11-16, and the rules and regulations implementing these sections, are unconstitutional.*fn1 They contend that these statutes and regulations provide that public assistance may be terminated, reduced or withheld without prior notice and a "fair hearing" to the public assistance recipient and thereby, as enacted and as applied, deprive them of due process secured by the Fourteenth Amendment.

On January 20, 1969, the trial judge to whom this case was assigned issued a temporary restraining order under 28 U.S.C. § 2284(3), restraining the defendants from refusing to pay each of the named plaintiffs the public assistance each such plaintiff received before the reduction, suspension, or termination, and granted plaintiffs' application for the convening of a three-judge court pursuant to Title 28, U.S.C. § 2281, to determine whether the due process clause of the Fourteenth Amendment to the Constitution requires notice and an opportunity to be heard before reduction, suspension, or termination, and, if so, whether the provisions of Sections 11-7 and 11-16, and their implementing regulations, meet that requirement.

Under the Social Security Act, 42 U.S.C. § 301 et seq., a state receiving federal funds is required to provide a welfare recipient a "fair hearing" at some time after it has denied his application, or terminated or suspended his payments. "A State plan * * * must * * * provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for [aid or assistance under the plan] is denied or is not acted upon with reasonable promptness." Sections 302(a)(4), 602 (a)(4), 1202(a)(4), 1352(a)(4), and 1382(a)(4) of 42 U.S.C.

Sections 11-8, Chapter 23, Illinois Revised Statutes, 1967, meets this requirement by providing for an appeal by a recipient at any time within 60 days after such a decision, or, if no decision has been made, within 30 to 60 days after the filing of the application. Defendants contend that this right to appeal constitutes a complete remedy meeting all requirements of due process.

"It has long been recognized that where harm to the public is threatened, and the private interest infringed (by action of a governmental agency) is reasonably deemed to be of less importance, an official body can take summary action pending a later hearing." R.A. Holman and Co. v. S.E.C., 112 U.S.App.D.C. 43, 299 F.2d 127, 131(1962). Such a departure from the general rule that a hearing must take place before an administrative order becomes operative will be justified, however, only when the agency is able to show a peculiarly urgent governmental interest such as national security or public health. North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908); Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); Cafeteria and Restaurant Workers, etc. v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).

The interest of the state in delaying a hearing until after assistance has been discontinued is principally financial. At the time of the filing of this case, the State of Illinois had 409,000 welfare recipients. Every month, there are a great number of suspensions and terminations, a high percentage of which are later found to have been fully justified. To provide expeditious hearings prior to termination would require additional administrative personnel, and the opportunity to recoup moneys improvidently paid out is almost totally nonexistent. The total costs of a program other than that being followed would be substantial. Nevertheless, while the total cost may be substantial and significant to an economic administration of the program, it must be measured against the severity in cost and deprivation to each of the recipients erroneously cut off from welfare aid. Just as the cost to the public is multiplied by the numbers involved, so also the total cost to erroneously suspended or removed recipients, when measured by the injuries experienced by them, is staggering. An appeal system which follows termination does not reduce this kind of cost. Public Welfare: The Right to a Prior Hearing, 76 Yale L.J. 1234, 1242 (1967). It is our considered opinion that the government's interest in its welfare program in protecting its administrative costs against losses is insufficient to justify a procedure of summary termination, suspension, or reduction of a recipient's benefits prior to notice and a hearing no matter how adequate an appeal procedure may be.

We reach this conclusion by way of our finding that if it is necessary to cast the matter of (the receipt of) public aid (governmentally provided) to the needy in one or the other of the long-labored-with molds of privileges or rights, we must classify it as a right and we so do. "Experts in the field of social welfare have often argued that benefits should rest on a more secure basis, and that individuals in need should be deemed `entitled' to benefits. See Ten Broek & Wilson, Public Assistance and Social Insurance — A Normative Evaluation, 1 U.C.L.A.L.Rev. 237 (1954); Kieth-Lucas, Decisions about People in Need (1957). The latter author speaks of a `right to assistance' which is the corollary of the `right to self-determination' (id. at 251) and urges public assistance workers to pledge to respect the rights and dignity of welfare clients (id. at 263). See also Wynn, Fatherless Families, 78-83, 162-63 (1964) * * *" Charles A. Reich, The New Property, Yale Law Journal, Vol. 73, April 1964, p. 786, fn. 233. And in reaching this conclusion we find ourselves impelled by the thinking which runs parallel with the discussion of the Supreme Court (Mr. Justice Brennan delivering the opinion of the Court) in its April 21, 1969, decision in the case of Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600,*fn2 and of the District Court decisions which in footnote 1 of that case the Supreme Court found in accord.*fn3 If further strength from the judicial thought of the Supreme Court were ...

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