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December 26, 1972


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


Plaintiffs seek declaratory and injunctive relief against the policy of the Illinois Department of Public Aid, which denied benefits claimed on behalf of an unborn child under the Aid to Families with Dependent Children ("AFDC") Program. Jurisdiction is predicated upon 28 U.S.C. § 1343(3) and (4), 2201, and 2202 (1970). Because this case can properly be decided on the basis of the Supremacy Clause of the Constitution, a three-judge court need not be convened. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed. 2d 194 (1965). For the reasons stated below, summary judgment is granted in favor of plaintiffs. The parties are granted twenty days leave to submit proposed orders for final relief.

At the time this suit was brought, Sylvia Wilson was still pregnant with her daughter, Mariama. Mrs. Wilson had applied for AFDC benefits with the Departments of Public Aid of the State of Illinois and Cook County, but her application was denied because Illinois' interpretation of "child" excludes unborn children from the category of those eligible for such benefits, even though unborn children would qualify under federal standards. It is uncontroverted that her application was satisfactory in all other material respects. Hence, the issue presented in this suit is the validity of that exclusion.

  Unborn children are entitled to receive AFDC benefits under
the eligibility requirements of the Department of Health,
Education and Welfare. 45 C.F.R. § 233.90(c). The fact that §
233.90(c) may appear to allow the states some leeway to vary
from the federal standards and the fact that the Department may
have approved of Illinois' present policy are irrelevant here
because in Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30
L.Ed.2d 448 (1971), the Supreme Court stated at 286, 92 S.Ct.
at 505:

     . . King v. Smith [392 U.S. 309, 88 S.Ct.
  2128, 20 L.Ed.2d 1118 (1968)] establishes 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.

Accord, Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972). Moreover, defendants' attempts at a statutory construction favorable to their case are unconvincing and their fears regarding a duplication of benefits under other state welfare schemes have already been answered by the Chief Justice's concurring opinion in Carleson v. Remillard, supra. Therefore, the Supremacy Clause requires that the challenged Illinois policy fall in deference to the federal Social Security Act.


Both parties have presented motions to vacate, alter, or amend this court's opinion of December 26, 1972. Plaintiffs are dissatisfied with the ruling on their request for leave to proceed as a class, while defendants challenge the decision on its substantive merits and, as an afterthought, they also challenge the order of September 11, 1972 in which I denied plaintiffs' request for the convening of a three-judge court. For the reasons stated below, plaintiffs are granted leave to proceed as a class, except for purposes of determining compensatory damages involving the consideration of collateral facts regarding individual claimants. Defendants' motion to vacate, alter, or amend is denied.

I. Three-Judge Court

Defendants' motion to vacate the judgment of December 26, 1972 is based in part on the denial of plaintiffs' request for a three-judge panel under 28 U.S.C. § 2281, despite the fact that the complaint contains substantial constitutional claims in addition to an asserted conflict between federal and state law. Defendants' arguments, however, overlook the well-settled rule that such requests must not be granted liberally, but may be allowed only if they satisfy the strict requirements of the statute. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). In this case the request for a three-judge court was denied for two reasons.

First, although the policy challenged here is one of statewide application, the parties appear to agree that it is not embodied in a state statute or order, as is required by § 2281. Plaintiffs' complaint does not attack the constitutionality of Article IV of the Illinois Public Aid Code, Ill.Rev.Stat. Ch. 23 § 4-1 through § 4-11 (Smith-Hurd 1968), or of a regulation issued thereunder. Rather, plaintiffs challenge the constitutionality of an unwritten interpretation of a statute that is constitutional on its face. Under these circumstances the request for a three-judge court must be denied. Dorado v. Kerr, 454 F.2d 892 (9th Cir.), cert. denied, 409 U.S. 934, 93 S.Ct. 244, 34 L.Ed.2d 188 (1972); Benoit v. Gardner, 351 F.2d 846 (1st Cir. 1965); Hunt v. Edmunds, 328 F. Supp. 468 (D.Minn. 1971).

But, even if the challenged policy was embodied in a state statute or administrative order, the convening of such a panel would clearly be premature until the disposition of plaintiffs' supremacy clause claims, particularly at a time when § 2281 has been sharply criticized for unduly burdening federal judicial resources. See, e. g., Ammerman, Three-Judge Courts: See How They Run!, 52 F.R.D. 293 (1971). It is clear that a single district judge has the power to enjoin the enforcement of a statewide policy under the supremacy clause and that, in order to avoid the needless determination of constitutional issues, the supremacy clause claim should be decided first. Wyman v. Rothstein, 398 U.S. 275, 276, 90 S.Ct. 1582, 26 L.Ed.2d 218 (1970); Rosado v. Wyman, 397 U.S. 397, 403, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Dandridge v. Williams, 397 U.S. 471, 475-477, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Moreover, even if a three-judge court is convened, the most appropriate course would be for that panel to remand the case to a single judge for a determination of the statutory claim. Rosado v. Wyman, supra; Kelly v. Illinois Bell Telephone Co., 325 F.2d 148 (7th Cir. 1963); Saddler v. Winstead, 327 F. Supp. 568 (N.D. Miss. 1971). Therefore, a three-judge court need not be convened unless there has been a resolution of the statutory claim in a manner unfavorable to plaintiffs.*fn1

Although this may require the piecemeal litigation of plaintiffs' claims, proceeding in this fashion is necessary, even when a three-judge panel has been convened, because of the principle of avoiding the needless resolution of constitutional issues. Moreover, as a practical matter, suits challenging the validity of state AFDC regulations are commonly resolved on the supremacy clause alone. See, e. g., Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971). ...

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