Before Kiley, Circuit Judge, and Perry and Napoli, District
The opinion of the court was delivered by: Perry, District Judge.
MEMORANDUM OPINION AND ORDER
This two-count civil rights suit is brought under
28 U.S.C. § 1343(3) and (4) and § 2201 as a class action by certain public
welfare recipients and challenges the constitutional validity of
the Illinois Department of Public Aid's "duplicate assistance"
policy. Pursuant to plaintiffs' request, a three-judge court was
convened to hear the case (28 U.S.C. § 2281, 2284).
Plaintiffs seek declaratory, injunctive and other appropriate
relief as authorized by 42 U.S.C. § 1983 to secure alleged
rights, privileges and immunities they claim are established by
the Fifth and Fourteenth Amendments to the United States
Constitution and the Social Security Act and administrative
regulations thereunder. Defendants Swank and Daniel moved to
In Count I of their Amended Complaint, plaintiffs contend the
Illinois Public Aid Code, Sections 11-7 and 11-16, and certain
regulations of the Illinois Department of Public Aid, which
authorize the taking of deductions from welfare checks "without a
prior hearing" being given recipient, violate due process of law.
They ask this Court (1) to declare unconstitutional the failure
of the Illinois and Cook County Departments of Public Aid to hold
a "formal hearing" prior to reduction of benefits to repay
previously furnished emergency disbursals for food and clothing
and (2) to enjoin defendants and their agents from withholding
from plaintiffs, public aid recipients, benefits retroactive to
the date of "unlawful ex parte reduction".
At the time of argument before this Court, plaintiffs' counsel
conceded that plaintiffs' charge of violation of the due process
clause of the Constitution was not tenable and he abandoned the
claim then and there in open court. It, therefore, needs no
further comment since the charge is no longer an issue in this
In Count II, plaintiffs allege that the regulations of the
Illinois Department of Public Aid which authorize deductions from
welfare checks for the amount of the previously furnished
emergency disbursals violate equal protection and are
inconsistent with the Federal Social Security Act, 42 U.S.C. § 601-609,
and Part IV, Section 3120, H.E.W. Handbook of Public
Assistance Administration. The pertinent regulations in the
Illinois Public Aid Manual are Chapter 1000, Section 1004.7,
Emergency Need for Food; Section 1005.3, Need for Clothing Above
the Monthly Clothing Allowance; Section 1005.3.1, Need for
Clothing Occasioned by Disaster or At Time of Initial Grant;
Section 1005.3.2, Need for Clothing When Clothing Allowance Has
Not Been Used to Meet Clothing Needs; Chapter 1500, Section
1501.1, Duplicate Assistance.
In the prayer of Count II, plaintiffs ask this Court (1) to
declare unconstitutional the Illinois Department of Public Aid
"duplicate assistance" policy and regulations and (2) to enjoin
the defendants and their agents from withholding past deductions
and continuing to reduce the monthly benefits of public aid
recipients through deductions from future welfare checks for the
amount of previously furnished emergency disbursals for food,
made at any time, and for clothing, made more than 90 days after
the initial grant of assistance.
This action was instituted on December 4, 1969 by plaintiffs
Ignacio Acosta, Virginia Bowers, Bernice Robinson and Dovie
Thurman, individually and on behalf of all other persons
similarly situated. Plaintiffs are recipients of public aid
administered by David Daniel, Director, Cook County Department of
Public Aid, as part of the public aid program under the direction
of Harold O. Swank, Director, Illinois Department of Public Aid.
Both David Daniel and Harold O. Swank were made defendants in
their official capacities. On January 1, 1970, plaintiffs filed
an Amended Complaint. Sundry motions memoranda and responsive
pleadings have been filed herein by the parties and the Court has
heard oral argument of counsel for the parties.
Prior to November 1968, each of the plaintiffs had been found
qualified for and entitled to receive monthly disbursals of
public aid under the Illinois public aid law as administered by
said Director of the Cook County Department of Public Aid and
each had been receiving a monthly assistance disbursal under the
supervision and control of said Director of the Illinois
Department of Public Aid.
Plaintiff Acosta had been a public aid recipient since November
1968 and had received $243.78 monthly up through September 1969.
In that month he requested an emergency clothing disbursal. This
disbursal was not one made within 90 days of his initial grant
and was not one made to replace clothes damaged or destroyed by
flood or fire or other disaster as provided by Section 1005.3.1.
The emergency disbursal was granted because he had not used his
prior budgeted allowance for clothes for that purpose, and he was
then in need of clothing. However, because of a regulation of the
Illinois Department of Public Aid which prohibits duplicate
assistance, the amount of the emergency disbursal to Ignacio
Acosta was deducted from the total amount he was to receive over
the next 12 months. The deduction was not all taken from the
succeeding month's disbursal but the deduction was directed by
the Director of the Cook County Department of Public Aid to be
distributed over a 12 month period in 12 equal installments,
pursuant to the regulations of the Illinois Department of Public
In October 1969 plaintiff Acosta had the sum of $11.44 deducted
from his monthly disbursal of $243.78. This $11.44 deduction has
continued to be made from his $243.78 disbursal so that the net
amount he has received monthly has been and continues to be
$232.34 in stead of $243.78.
The other plaintiffs have each been public aid recipients since
prior to 1968 and each have requested and received emergency
disbursals during the year 1969 for clothing or food or both. The
emergencies arose not because of the loss, damage or destruction
of their food or clothing by flood, fire or other disaster, in
which event no deductions would have been made, but because they
had not used the disbursals they received for that purpose.
Each recipient has a monthly budget determined for him or her.
The budget is given to the recipient and discussed with and
explained to the recipient. It allows a certain amount for food,
an amount for clothing, an amount for rent, an amount for
transportation and sums for other items approved for said
recipient. However, recipient does not receive a disbursal check
for each item but one monthly check for the total amount. It is
the recipient's responsibility to spend the funds granted in
accordance with ...