APPEAL from the Circuit Court of Cook County; the Hon. JAMES
MEJDA and the Hon. F. EMMETT MORRISSEY, Judges, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
The issues presented here were raised by four separate class suits, consolidated in the trial court. Defendants filed motions to dismiss which were allowed in due course. Plaintiffs have appealed.
• 1 The well-pleaded facts in the allegations of the complaints are accepted as true so that we are concerned only with issues of law presented by the pleadings. (Fancil v. Q.S.E. Foods, Inc., 60 Ill.2d 552, 554, 328 N.E.2d 538.) The four complaints were filed by varying groups of plaintiffs. We will identify them if required by the names of the first named plaintiff in each of the cases: Peggy Ballew; Rudolph Rehak; Illinois Welfare Rights Organization, an unincorporated association, and Dorothy Currie acting individually and on behalf of her minor children. There are a number of named plaintiffs in each case. In these four pleadings, they seek to represent the entire class of all similarly situated recipients of public assistance in Cook County primarily under articles III and IV of the Illinois Public Aid Code. (Ill. Rev. Stat. 1973, ch. 23, par. 1-1 and following.) No point is raised on the propriety of class representation.
All members of the classes will be referred to collectively as plaintiffs. The complaint of plaintiff Ballew is concerned with persons receiving public aid for utility services for heating, cooking, etc.; that of plaintiff Rehak is concerned with food allowances under the Code; that of plaintiff Illinois Welfare Rights Organization is concerned with clothing allowances and that of plaintiff Currie is concerned with payments for personal essentials and household supplies. The defendants are Joel Edelman, Acting Director of the Illinois Department of Public Aid; the Illinois Department of Public Aid; David Daniel, Director of the Cook County Department of Public Aid and the Cook County Department of Public Aid.
The four separate complaints are quite similar. It is alleged that the allowances made to the various plaintiffs and the members of the respective classes which they represent are presently inadequate to defray the cost of the type of services for which welfare allowances are received. Each complaint points out that the Public Aid Code places upon the Illinois Department of Public Aid the duty of establishing standards by which need for public aid will be determined and the further duty of amending "such standards from time to time as circumstances may require." (Ill. Rev. Stat. 1973, ch. 23, par. 12-4.11.) This same section of the statute provides that the quantity and quality of items included in the various standards such as for food, clothing and other basic maintenance needs "shall take account of the buying and consumption patterns of self-supporting persons and families of low income as determined from time to time by the United States Department of Agriculture, the United States Bureau of Labor Statistics, and other nationally recognized research authorities in the fields of nutrition and family living." In addition, "[t]he items in the standards shall be priced periodically for changes in cost * * * and allowances adjusted as indicated by the findings of such surveys." The County Department of Public Aid is required by the statute to administer public aid in cities of more than 500,000 inhabitants, "subject to the supervision and direction of the Illinois Department." Ill. Rev. Stat. 1973, ch. 23, par. 12-18.5.
The individual complaints state the various standards currently used to compute public assistance grants and allege that in each instance the standards are substantially below the amounts which public aid recipients must pay for the services or articles in question. Thus, the complaints allege that the defendants have failed to establish standards which would provide plaintiffs and the persons they represent with a livelihood compatible with health and well-being. It is alleged that the Illinois Department has failed to amend the various standards. For example, the utility standards have not been amended since October, 1967, and food standards have not been amended since 1958, although the quantities of certain items required for adequate nutrition were increased by the United States Department of Agriculture in 1964. There was a downward revision of the food standards in 1963, despite an increase in the cost of food in Illinois of approximately 48% between 1958 and 1972. The standards for clothing have not been amended for over 10 years.
The complaint of plaintiff Peggy Ballew prays that the court declare that defendants have failed to amend the utility standards in violation of law and that the present standards fail to meet the requirements of law; for a permanent injunction restraining the defendants from failing to amend the utility standards and ordering defendants to submit an amended standard to the court for approval. Each of the three remaining complaints contains a prayer for similar relief.
The motions to dismiss filed by the defendants to each of the complaints aver that the court lacks jurisdiction over defendants by virtue of the doctrine of sovereign immunity; the Court of Claims of Illinois has exclusive jurisdiction over the controversy and the court lacks jurisdiction under the constitutional doctrine of separation of powers. The parties filed memoranda of law with the trial court.
In this court, all of plaintiffs have joined, contending that each of the complaints states a good cause of action for declaratory and equitable relief; the doctrine of sovereign immunity is inapplicable to the case at bar and the causes of action for declaratory and equitable relief are not within the jurisdiction of the Court of Claims; decision of the cause on its merits will not invade the prerogative of the executive or legislative branches of the government and the Administrative Review Act is not applicable to the claims raised by plaintiffs. In response, defendants urge that the issues in this case have become moot because of the adoption of the "flat grant" welfare system and assumption by the Federal government of the program of aid to the aged, blind and disabled; the present action is actually against the State of Illinois and is therefore barred by sovereign immunity so that the proper forum is the Court of Claims and the judicial remedy sought by plaintiffs would violate the constitutional doctrine of separation of powers; plaintiffs have failed to exhaust their administrative remedies; plaintiffs seek inappropriate relief and the question of whether the complaints state good causes of action is not presently before the court.
In our view, the only contentions presented by the briefs which we need consider or decide are whether the action is presently moot and whether it was properly commenced in the circuit court or should have been initiated as an administrative proceeding before the Illinois Department of Public Aid. Defendants urge in their brief that the case is moot because on October 1, 1973, the State of Illinois adopted a Consolidated Standards Plan, generally referred to as the "flat grant" system, to be used in administering article IV of the Public Aid Code. (Ill. Rev. Stat. 1971, ch. 23, par. 4-1 and following.) This was accomplished by an amendment to section 12-4.11 of the Public Aid Code. (Ill. Rev. Stat. 1973, ch. 23, par. 12-4.11.) In their reply brief, plaintiffs urge that implementation of the flat grant or Consolidated Standards Plan did not eradicate the individual standards and did not eliminate the duty of the Department of Public Aid with reference to periodical pricing of items in the standards and with reference to amendment of the "standards from time to time as circumstances may require" so that the case is not moot. (Ill. Rev. Stat. 1973, ch. 23, par. 12-4.11.) Neither side cited any decisive authority on this issue.
While this opinion was in the final stages of preparation, the case of Thurman v. Department of Public Aid, 25 Ill. App.3d 367, 323 N.E.2d 502, leave to appeal denied, 58 Ill.2d 599, was brought to the attention of this court. In Thurman, as in the case at bar, plaintiffs challenged standards applied and allowances granted by the Department of Public Aid on the basis of the statutes above described. They did so by administrative proceedings before the Department. Plaintiffs sought an increase in public assistance allowances. After an adverse administrative ruling, plaintiffs continued with administrative review and attempted to proceed upon a class action basis. The trial court held that adoption of the flat grant welfare policy on October 1, 1973, rendered the action moot. The court did so on the basis of information which it had acquired in hearing another case then pending in the circuit court. This court affirmed this result on the ground that the trial court properly took judicial notice of the situation with particular reference to the fact that under the new standard 76% to 80% of welfare recipients have had a definite increase in allotments.
• 2 Since we were unaware of Thurman at the time of oral argument, we thought it best to obtain written expressions from counsel in the case before us as to its applicability. Counsel for defendants took the position that Thurman is directly applicable here because of the large number of public aid recipients here represented who have already received increases; and, therefore, that plaintiffs have obtained all of the relief that they sought in their complaints. *fn1 On the contrary, counsel for plaintiffs insist that Thurman has no application here. They first urge that this point was not raised by defendants in the trial court. It is correct that the point of mootness was not raised in any of the motions to dismiss filed by defendants. However, all of these motions were filed prior to October 1, 1973, when the events upon which the mootness contention is based occurred. Mootness often occurs during the pendency of litigation and is then properly brought to the attention of the reviewing court. (See Wheeler v. Aetna Casualty & Surety Co., 57 Ill.2d 184, 189, 311 N.E.2d 134.) Plaintiffs also urge that the record before us does not present facts upon which we can dismiss the causes as moot. A number of factors impel us to adopt the view urged by plaintiffs.
We are not certain that the facts upon which mootness would be based properly appear in the record before us. Pursuant to a question put by this court on oral argument, counsel for plaintiffs furnished this court and counsel for defendants with a memorandum prepared by the Illinois Department of Public Aid, Bureau of Research and Statistics. In this document the statement is made that the flat grant allowance plan did not "throw out" the long-standing cost standards of the Department but averaged them according to 1971 expenditure levels. If so, the basic demand by plaintiffs that we require the Department of Public Aid to consider additional amendment of the standards remains unanswered by the claim of mootness.
• 3 We do not know if the trial court or this court in Thurman gave consideration to this statement by the Department of Public Aid regarding the effect of the flat grant system. However, as this court pointed out in Thurman, judicial notice may be taken of published reports and public records of the Department. (25 Ill. App.3d 367, 370.) In addition, in Thurman, plaintiffs attempted to obtain an increase of welfare payments. In the case before us, as we will shortly show, plaintiffs distinguish between standards and payments of aid and assert that their interest lies only in the former. In Thurman, this court proceeded on the basis that "plaintiffs have secured what they basically sought." (25 Ill. App.3d 367, 370.) This language from Thurman is not applicable here in view of the apparent difference in the relief sought. There, plaintiffs sought welfare increases. Here, plaintiffs seek amendment of standards. In ...