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RODRIGUEZ v. SWANK

September 23, 1970

GLADYS RODRIGUEZ, INDIVIDUALLY, AND ON BEHALF OF HER MINOR CHILDREN, RAFAEL, FRANCISCO, WILLIAM AND MIGUEL RODRIGUEZ, AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS, MRS. LORETHA SMITH, ON BEHALF OF HER MINOR CHILDREN, STEVEN KELLY, DEBRA KELLY AND RAYMOND KELLY, PLAINTIFF-INTERVENOR,
v.
HAROLD O. SWANK, DIRECTOR, ILLINOIS DEPARTMENT OF PUBLIC AID, DAVID DANIEL, DIRECTOR, COOK COUNTY DEPARTMENT OF PUBLIC AID, EDWARD J. BARRETT, COOK COUNTY COMPTROLLER, DEFENDANTS.



Before Kiley, Circuit Judge, and Will and Decker, District Judges.

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

    MEMORANDUM OPINION

Plaintiffs bring this action to challenge the validity of a statewide regulation relating to the payment of benefits under the Illinois Aid to Families with Dependent Children (AFDC) program. The action is brought pursuant to 42 U.S.C. § 1983; jurisdiction is invoked under 28 U.S.C. § 1343(3) and (4), and declaratory relief is sought pursuant to 28 U.S.C. § 2201 and 2202. The regulation challenged, Section 8255.1 of the Illinois Department of Public Aid Categorical Assistance Manual, provides that assistance payments for new applicants may not be made, with certain exceptions, for periods prior to the month in which the application is approved.*fn1

The action is brought in two counts, both purporting to be class actions, by Mrs. Gladys Rodriguez, an AFDC recipient, and her minor children.*fn2 The defendants are the Directors of the Illinois and Cook County Departments of Public Aid and the Cook County Comptroller. The complaint alleges that Mrs. Rodriguez applied for benefits on September 22, 1969, that the application was approved in December, 1969, but that no benefits were received for September, October or November, 1969, and that only partial benefits were received for December of that year. Because count 2 seeks an injunction restraining the enforcement of the Illinois regulation on the ground that it violates the Equal Protection Clause of the Fourteenth Amendment, a three-judge court was convened pursuant to 28 U.S.C. § 2281 and 2284. Presently before the court are motions to dismiss the complaint filed by all defendants. Count 1 of the complaint states that defendants' failure to pay AFDC benefits to Mrs. Rodriguez within 30 days after her application, and their subsequent failure to pay benefits retroactive to the thirtieth day after application, violate regulations of the Department of Health, Education and Welfare (HEW) said to require payments to eligible new applicants within such time.*fn3 Accordingly, plaintiffs request a declaration that the Illinois regulation violates the Supremacy Clause of Article 6 of the Constitution and is void, and that defendants are bound to pay benefits within 30 days of application, or, if this is not done, to pay benefits retroactive to the thirtieth day after application. Finally, they seek an injunction to secure the above relief for themselves and others similarly situated.

Count 2 incorporates many of the paragraphs of count 1 and alleges that certain persons who applied for AFDC benefits in September, 1969 received payments in September, October or November of that year, whereas Mrs. Rodriguez received no payments until December, 1969. It is alleged that the non-retroactivity provision of the Illinois regulation, which results in this differential treatment of applicants, amounts to unreasonable and capricious discrimination in violation of the Equal Protection Clause. Plaintiffs ask for a declaration that payment retroactive to the date of application is constitutionally required, and for an injunction restraining further enforcement of the Illinois regulation.

Motion to Dismiss as a Class Action.

The count 1 class includes all persons in Illinois eligible for AFDC assistance who are required by defendants to wait longer than 30 days after application for a determination of eligibility and receipt of their first assistance check. The count 2 class includes all applicants for AFDC in Illinois who meet statutory eligibility requirements when they apply but are denied benefits for the intervening period from the date of application to the month in which their grant is authorized. For reasons to be stated, we think these are proper class actions.*fn4

A class action must satisfy the four threshold requirements specified in Rule 23(a), Fed.R.Civ.P.*fn5 Although no estimate of the number of class members has been made, plaintiffs represent that the majority of AFDC applicants do not receive their first check within 30 days of application. For present purposes the court can take judicial notice that the number of AFDC recipients in Illinois runs well into the thousands, thus making joinder of class members clearly impracticable. See, e.g., Cypress v. Newport News G. & N. Hospital Ass'n, 375 F.2d 648 (4th Cir. 1967); Clemens v. Central R. Co. of N.J., 264 F. Supp. 551 (E.D.Pa. 1967), rev'd. on other grounds, 399 F.2d 825 (3 Cir.), cert. den. 393 U.S. 1023, 89 S.Ct. 633, 21 L.Ed.2d 567.

Second, there are questions of law common to the classes, such as interpretation of the Illinois and HEW regulations, determination of the binding nature of the HEW regulations, and determination of the constitutionality of the Illinois regulation. Third, the claims of the representative parties are typical of the class. The named plaintiffs' interest in the litigation differs from that of the class members only in the amount of retroactive payments involved, and thus their presentation of the evidence and arguments can be expected to be representative of the class. State of Illinois v. Harper & Row Publishers, Inc., 301 F. Supp. 484 (N.D.Ill. 1969).

Defendants make much of the fact that the Illinois Public Aid Code, 23 Ill.Rev.Stat. § 4-1.3, sets out numerous alternate criteria for eligibility for AFDC, such as death, physical incapacity, or unemployment of a parent. Defendants' argument is apparently that because the named plaintiffs do not represent all of the possible eligibility criteria their claims are not typical of those of the entire class. This argument is without merit, however, for it ignores the fact that the complaint defines the classes to include only eligible applicants. The reasons for eligibility are not in issue, nor does the cause of action depend in any way upon the kind of eligibility involved. Consequently, the failure of these plaintiffs to exemplify each sub-class within the Illinois statute is irrelevant. Moreover, similar class actions have been allowed when less than all possible kinds of eligible welfare recipients were named plaintiffs. See, e.g., Johnson v. Robinson, 296 F. Supp. 1165 (N.D.Ill. 1967), aff'd 394 U.S. 847, 89 S.Ct. 1622, 23 L.Ed.2d 30 (1969); Denny v. Health and Social Services Board, 285 F. Supp. 526 (E.D.Wis. 1968).

Finally, we conclude that the representative parties will fairly and adequately protect the interests of the class. The named plaintiffs have a sufficiently large economic stake in the proceedings to insure diligent and thorough prosecution of the litigation. See Siegel v. Chicken Delight, Inc., 271 F. Supp. 722, 727-728 (N.D.Cal. 1967). And the competence of their counsel is unchallenged.

Defendants contend that certain class members, those minors who are wards of the state pursuant to Illinois law, cannot be represented in a lawsuit by anyone but their guardian. However, this argument is refuted by the applicable statute, ch. 3 Ill.Rev.Stat. § 141, which provides that "any court" may "allow any person as the next friend of a minor to commence, prosecute or defend any suit in his behalf." We think this provision is broad enough to permit representation of wards of the state in this class action.

In addition to satisfying the requirements of Rule 23(a), a class action must also meet one of the criteria set out in Rule 23(b). Rule 23(b)(2) requires that:

  "the party opposing the class has acted or refused to
  act on grounds generally applicable to the class,
  thereby making appropriate final injunctive relief or
  corresponding declaratory ...

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