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June 30, 1972


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
 (N.D.Ill. 1970).

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
      subsequently terminated.
  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

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 ...

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