Clark,*fn* Associate Justice, Kiley, Circuit Judge, and Campbell,*fn** Senior District Judge.
Plaintiff, Ernest Brooks, as representative of a class, filed this civil rights action alleging that defendants unconstitutionally terminated plaintiffs' rent and food assistance. On motion of defendants the district court dismissed the complaint.*fn1 Brooks alone has appealed.*fn2 We reverse.
The complaint was filed on June 3, 1971. The relief sought was for a declaratory judgment that defendants' practice of terminating benefits and dispensing poor relief violated the Due Process Clause of the 14th Amendment, for an order restraining defendants from termination of assistance except under specific procedural substantive and constitutional steps, and for an order reinstating certain plaintiffs on its relief rolls. After receiving eight extensions of time to answer, defendants, on March 10, 1972, filed their motion to dismiss asserting that there was no diversity jurisdiction, insufficient service of process, failure to exhaust administrative remedies, and lack of a substantial federal question. In response to the motion plaintiffs, inter alia, asserted that the motion did not specify how service of process was insufficient under federal or Indiana law. In any event they asserted that the thrust of their action was to establish deprivation of constitutional rights by virtue of defendants' pre-termination procedure under Indiana law, and that they were not required to exhaust post-termination remedies before bringing suit. The district court dismissed the complaint for failure of plaintiffs to exhaust their state remedy. Ind.Code § 12-2-1-18 (1971).
We take the allegations well pleaded by Brooks as true, for purposes of this appeal.*fn3 He began receiving rent and food assistance from defendants in February, 1969. In May, 1970 his rental benefits, and in February, 1971 his food benefits, were terminated without prior notice or hearing or notice of his right of post-termination administrative appeal under Indiana Statute. Ind.Code § 12-2-1-18(1971).
Brooks contends that he was not required to exhaust the Indiana "remedy" before filing his civil rights complaint, especially where the provisions of § 12-2-1-18 do not satisfy the due process and equal protection clauses of the Fourteenth Amendment. He contends, and we agree, that § 12-2-1-18 is unconstitutional for lack of due process under Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).
The district court's application of the exhaustion rule was premised upon plaintiff's failure to pursue the appellate remedy in Ind.Code § 12-2-1-18 (1971). That "poor relief" statute does not expressly deal with the termination process. Its provisions provide an appellate procedure to follow the decision of the "township trustee as overseer of the poor." The statute contains no procedural requirements at the "trustee or overseer of the poor" level. Brooks' claim of denial of due process is not aimed at the unconstitutionality of the provisions of § 12-2-1-18, but rather at the lack of that statute, or any Indiana statute, to provide due process at the level of the initial termination of relief.
The provisions of § 12-2-1-18 provide an applicant for, or recipient of, poor relief an opportunity to object to a denial or termination decision by the "trustee as overseer." The appeal is to the Board of County Commissioners, and on appeal the recipient is entitled to an opportunity to object orally or in writing, to be present at the appellate hearing and to receive notice of the decision. It is clear that the statute does not require a hearing for recipients before termination of relief. No claim is made by defendants that a pre-termination hearing is required or given.
We hold that the statute is constitutionally infirm facially for want of due process in failing to provide, inter alia, a pre-termination hearing, an effective opportunity for Brooks to defend, and want of due notice of reasons for termination. Goldberg v. Kelly, 397 U.S. 254, 264-268, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).
Defendants' arguments are of no aid in our decision of the legal question presented. The arguments are reminiscent of a chorus in a Greek tragedy chanting lamentations. The substance of the arguments is the dire effects of continuing the trend of recent welfare decisions. Nevertheless, we recognize the importance of not imposing upon Indiana any procedural requirements beyond those of rudimentary due process. Goldberg v. Kelly, supra, at 267, 90 S. Ct. 1011. But rudimentary due process was denied Brooks, who had no notice of, or reasons for, termination of benefits, no hearing and no notice of his appeal right.
The Goldberg v. Kelly case involved a federally assisted program, not a completely state funded program. It is of no consequence constitutionally that Indiana's "township poor relief program . . . is not a federally governed or directed program under the Social Security Act of 1935 or any other federal act of welfare or relief assistance" but is supported solely by the state. Indiana is required by the Fourteenth Amendment to provide due process in its laws. See Monroe v. Pape, 365 U.S. 167, 171-172, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). The Civil Rights Act was intended to "override certain kinds of state laws." Id. at 173, 81 S. Ct. at 477. And if the state through its welfare program extends basic benefits to the needy, it must not take the benefits away in an arbitrary procedure. If it does so it has violated the constitutional right of the needy to due process and consequently violated the Civil Rights Act.
We hold that the district court erred in deciding that Brooks was required to pursue what benefit Ind.Code § 12-2-1-18 (1971) offers to welfare ...