The opinion of the court was delivered by: Marovitz, District Judge.
Motion For Injunctive And Other Relief Pursuant To
Paragraph 8 Of January 21, 1972 Order
The current phase of this suit arises out of a class action
brought by plaintiffs in 1968 challenging the validity of Art.
IV, § 4-1.1 of the Illinois Public Aid Code, Ill.Rev.Stat. Ch.
23, § 4-1.1 (1967) and Illinois Public Aid Regulation 150
issued pursuant thereto. Section 4-1.1 provided that needy
children who are deprived of parental support and are between
eighteen and twenty-one years of age and in regular attendance
in high school, vocational school, or technical training school
are eligible to receive aid to families with dependent children
(AFDC) benefits. Plaintiffs alleged that Section 4-1.1 was
inconsistent with Section 406(a)(2) of the Social Security Act,
42 U.S.C. § 606(a)(2) in its provision of AFDC benefits for
children between 18 and 21 attending high, vocational and
technical schools while excluding those in the same age group
attending college and thus was void under the Supremacy clause.
Plaintiffs also asserted that their equal protection rights
were being violated.
A motion to convene a three-judge Court was granted,
Alexander et al. v. Swank et al., 314 F. Supp. 1078 (N.D.Ill.
1969), and that Court found that Section 4-1.1 did not
conflict with section 406(a) of the Social Security Act since
the latter section did not require the states to incorporate
the Federal definition of "dependent children" in their own
programs and that furthermore the legislative history of
Section 406(a)(2) indicates that Congress granted states
considerable flexibility in extending or excluding AFDC
benefits to children over eighteen years of age. The
three-judge Court also held that Section 4-1.1 did not violate
the equal protection clause. Alexander v. Swank, 314 F. Supp. 1082
Plaintiffs appealed to the Supreme Court of the United
States and the Supreme Court reversed the three-judge Court in
Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448
(December 20, 1971). The Supreme Court held, citing its
decision in King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20
L.Ed.2d 1118 (1968) "that, at least in the absence of
congressional authorization for the exclusion clearly
evidenced from the Social Security Act or its legislative
history, a state eligibility standard that excludes persons
eligible for assistance under Federal AFDC standards violates
the Social Security Act and is therefore invalid under the
Supremacy clause." 92 S.Ct. at 505. The Court went on to find
that no congressional authorization existed for the exclusion
of otherwise eligible 18-20 year old needy dependent children
who attended college rather than a vocational or high school,
that the legislative history indicates that no such exclusion
was intended and that the Illinois classification was
therefore invalid as conflicting with the Social Security Act.
Pursuant to the Supreme Court's decision the three-judge
Court ordered that the invalid provision be eliminated from
the Illinois Public Aid code and that other appropriate action
be taken to conform with the Supreme Court's decision.
The three-judge Court also ordered that the benefits
wrongfully withheld from the plaintiffs be paid and in
Paragraph 8 of that order reserved the issues of release of
retroactive payments of wrongfully withheld AFDC benefits to
the class and damages suffered by plaintiffs and the class.
(Alexander & Towsend v. Weaver, order, January 21, 1972).
In their motion plaintiffs request various changes in AFDC
regulations on which we need not elaborate; damages for
plaintiffs and the class; attorneys fees, and retroactive
relief to be accomplished by:
3a) notifying all applicants for or recipients of
AFDC who completed high school since November
1963 (Plaintiff chose this date in view of
the fact that the § 1983 statute of limitations
is five years and the suit being filed in
November of 1968 covered only the previous five
years) whose AFDC benefits were denied or
terminated in whole or in part because of
defendants' enforcement of the invalid
regulation, that they are now eligible for an
AFDC grant for the period of time that they
would otherwise have been eligible provided
that they commence within one year after notice
regular attendance at a school, college,
university, vocational, or training school
notice to be directed to all persons who made
written or oral application concerning aid and
were refused or withdrew the application
because of actions or statements by a
caseworker or employee of the Public Aid
Department or were found eligible and were
3b) notifying other members of the class who did
not apply for AFDC but otherwise met the
requirements of (a).
4a) remitting to all applicants or recipients of
AFDC who were denied all or part of their
grant at any time since July 30, 1965 while a
student regularly attending a school,
college, or university or attending a
vocational or technical school because of
application of the invalid regulation the
amount wrongfully withheld from each
individual notice to be directed to all
persons who made oral or written application
and were refused . . .
4b) notifying all other members of the post-July
1965 class who did not apply for AFDC but
otherwise met requirements of that class.
In short, plaintiffs seek blanket retroactive relief that
would include everyone who might have been eligible back to
1963, i. e. those who were deterred by the regulation from
going to college, those who went to college without state aid,
those who went to trade school but would have gone to college
absent the regulation and those who are presently on aid.id.
Defendants concede that retroactive relief under proper
conditions ought to be given to those now in college who are
otherwise eligible for AFDC aid provided that there exists a
present unmet deficit and that there is a reasonable
relationship to present need and that aid ought to be given
those individuals attending college now but who are no longer
eligible for AFDC because they are over 21 provided also that
there is an unmet deficit and provided also that the deficit
is not brought about by the individual's election not to work
when he is indeed employable and could go to school at night.
Defendants, however, oppose any retroactive aid to those who
have attended college and have attained their degrees, those
who attended college but who are no longer eligible and did not
attain their degrees and those who might have attended college
were it not for the invalid regulation.
It is our task to determine precisely which groups, if any,
should be given retroactive relief.
Before we embark on a discussion of the application of
retroactive relief in the specific context of welfare cases we
ought to first briefly discuss general theories of
retroactivity especially in view of the heavy reliance
defendants place on recent developments in the criminal field.
In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14
L.Ed.2d 601 (1965) the Supreme Court declined to apply the
search and seizure proscriptions of Mapp v. Ohio,
367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) retroactively. In
reaching this decision the Court traced the theory and history
of retroactivity from the early common law rule of almost
absolute retroactivity in civil cases based on the concept
that a judge was a "discoverer" rather than a "creator" of
law, to the more recent concept that retroactive or
prospective application of a new decision is a subjective
matter based on the particular facts in each case. (See
Linkletter v. Walker, supra 381 U.S. pp. 622-629, 85 S.Ct. 1731
and cases cited therein for documented history of these
developments). The Court went on to say:
. . we believe that the Constitution neither
prohibits nor requires retrospective effect . . .
Once the premise is accepted that we are neither
required to apply, nor prohibited from applying,
a decision retrospectively, we must weigh the
merits and demerits in each case by looking to
the prior history of the rule in question, its
purpose and effect, and whether retrospective
operation will further or retard its operation.
381 U.S. 627-629, 85 S.Ct. 1737-1738.
Since Linkletter, the three-pronged test outlined therein has
become more defined and has developed into the governing test
in the area of criminal procedure for the determination of
prospective or retrospective application of a decision: (1) the
purpose to be served by the new rule; (2) the extent of
reliance which has been placed upon the old rule and (3) the
effect on the administration of the retroactive application of
the new rule. See Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct.
1772, 16 L.Ed.2d 882 (1966); (non-retroactivity for new rules
regarding custodial interrogation); Tehan v. United States, ex
rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966)
(new rule concerning accused's failure to testify denied
retroactivity); Stovall v. Deno, 388 U.S. 293, 87 S.Ct. 1967,
18 L.Ed.2d 1199 (1967) (prospective application of rules in
police line-up identification); DeStefano v. Woods,
392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968) (prospective
application of right to jury trial rule); Fuller v. Alaska,
393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968) (prospective
application of new rule regarding exclusion of evidence
obtained by illegal interception of a communication); Desist v.
United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248
(1969) (prospective application of evidence obtained by
electronic eavesdropping). See also Halliday v. United States,
394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969); Katz v.
United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
(1970); Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148,
28 L.Ed.2d 388 (1971); Hill v. California, 401 U.S. 797, 91,
S.Ct. 1106, 28 L.Ed.2d 484 (1971).
The defendants in their Brief In Opposition To Retroactive
Payments begin with the premise that there is no distinction
between civil and criminal cases in the criteria to be used in
determining retroactive or prospective relief, and based on
this underlying premise review a multitude of criminal cases
to date that have applied that criteria and have denied
retroactivity and finally use ...