Ella Metcalf, Etc. v. Harold O. Swank, Etc.

444 F.2d 1353

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 1, 1971
• Docket: 18136
• Status: Published

Opinions

PELL, Circuit Judge.

This class action was brought pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, on behalf of all recipients of public aid in Illinois who are members of a family unit of two or more which pays more than $90.00 per month residence rental but receives $90.00 or less per month as a shelter allowance from the Illinois and the Cook County, Illinois, Departments of Public Aid.² Defendants are the respective directors of the departments and are charged by law with the enforcement of the Illinois Public Aid Code.

Section 12-4.11 of the Illinois Public Aid Code, Ill.Rev.Stat.1967, ch. 23, § 12-4.11, deals with public assistance shelter allowances and provides, in relevant part: “[T]he shelter standard for any recipient, exclusive of household furnishings and utilities, shall not exceed $90.00 per month, except for adjustments made in the manner authorized by § 12-14.” Section 12-14, Ill.Rev.Stat.1967, ch. 23, § 12-14, provides that the Illinois Department of Public Aid may, after consultation with the Legislative Advisory Committee on Public Aid, authorize “deviations” from the $90.00 per month limitation.

Plaintiffs originally challenged the constitutionality of these provisions on their face. On November 12, 1968, a three judge court issued its opinion finding the statute constitutional on its face. Metcalf v. Swank, 293 F.Supp. 268 (N.D.Ill.1968). The court found that “the arbitrary nature of a flat maximum” was avoided in the statute by its provision for exceptions to the $90.00 maximum.³ The court further construed the statute to require the granting of such exceptions whenever necessary to “provide a livelihood compatible with health and well-being,” as stated in section 12-4.11. Having reached this conclusion, the three judge court remanded the case to a single judge for resolution of any factual questions that might remain.

Plaintiffs did not appeal the decision of the three judge court but rather filed an amended complaint before the single district judge. Count I of the amended complaint renewed the challenge to the statute on its face. Count II challenged the statutory provisions as applied. Count III challenged the provisions on state law grounds.

Count I was dismissed because previously decided by the three judge court. Count III was dismissed for want of pendent jurisdiction following the dismissal of Count II with which we are primarily concerned.

The district court dismissed Count II “for failure to exhaust available state administrative remedies * * *,” and because it stated no “substantial constitutional claim [to] * * * justify the assumption of jurisdiction * * * absent exhaustion of available state administrative remedies.” It is from this dismissal that plaintiffs appeal.

On this appeal, plaintiffs contend that exhaustion of state remedies is never required in actions brought pursuant to the Civil Eights Act. Alternatively, they assert that if exhaustion is sometimes required, this is not a proper case for the imposition of such a requirement.⁴

Plaintiffs rely on five decisions of the United States Supreme Court. They first cite Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), to the effect that: “The federal remedy [under the Civil Rights Act] is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Id. at 183, 81 S.Ct. at 482. However, the only state remedy available to the plaintiffs in Monroe was a judicial one. Long before Monroe, the rule was established that state judicial remedies normally need not be exhausted before relief is sought in the federal courts whether under the Civil Rights Act or otherwise. Bacon v. Rutland Railroad Co., 232 U.S. 134, 34 S.Ct. 283, 58 L.Ed. 538 (1914). See also 1 Barron & Holtzoff (Wright ed.) § 65, pp. 355-56. Thus we find Monroe unpersuasive in the instant case where plaintiffs’ remedy is plainly administrative.

In our opinion, plaintiffs’ reliance upon McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), is misplaced for much the same reason. While the remedy in McNeese was formally administrative, the Court found that it was in substance judicial since the only power of the administrator was to recommend the institution of state court proceedings. Under such circumstances, the Court stated: “It would be anomalous to conclude that such a remedy forecloses suit in the federal courts when the most it could produce is a state court action that would have no such effect. * * * Monroe v. Pape, swpra.” 373 U.S. at 675, 83 S.Ct. at 1437. Further, the Court indicated its doubt that the state remedy was “sufficiently adequate.” Id., at 674, 83 S.Ct. 1433.

Administrative remedies were involved in the final three cases relied upon by plaintiffs. Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); and Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). In each of these cases the Court held there was no requirement of exhaustion. However, each involved circumstances making it clearly distinguishable from the instant case.

In both Damico, which contains the broadest language relied upon by plaintiffs, and King, a state statute was challenged as unconstitutional on its face. In administrative law cases generally there is some lingering confusion as to whether exhaustion will be required when the constitutionality of a statute is challenged on its face rather than as applied. See Davis, Administrative Law Treatise, 1958, § 20.04; and Jaffe, Judicial Control of Administrative Action, pp. 438-40 (1965). However, the emerging rule would appear to be that since the administrative remedy cannot resolve the constitutional challenge, exhaustion will not be required unless the administrative action might make judicial determination of the constitutional question unnecessary. See Public Utilities Commission v. United States, 355 U.S. 534, 539-540, 78 S.Ct. 446, 2 L.Ed.2d 470 (1958).

Damico and King merely take this development one step further in the special area of Civil Rights Act cases. They hold that in such cases, exhaustion will not be required “where the constitutional challenge is sufficiently substantial * * * to require the convening of a three-judge court.” King, supra, 392 U.S. at 312 n. 4, 88 S.Ct. at 2131.⁵ Thus we take Damico and King to hold only that because of the special federal nature of actions under the Civil Rights Act, and because of the general inadequacy of administrative remedies to deal with substantial challenges based upon the unconstitutionality of a statute on its face, exhaustion should not be required in cases combining these elements. Any more liberal interpretation which plaintiffs might wish to draw from the broad language of Damico seems foreclosed by the narrow interpretation given that language by the Court in King.

Thus, Damico and King are inapposite here where the Illinois statutory provisions have been held constitutional on their face and where the sole challenge is to their application by defendants. In such a case, the administrative process normally has the power to remedy the alleged wrongs worked on plaintiffs by lower level administrators. Indeed, it exists specifically for that purpose.

The final case relied upon by plaintiffs, Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), is also inapposite. There the Court held that to require exhaustion would be “to demand a futile act” since the administrator to whom the plaintiff could have appealed had already taken the position that the challenged rules “were validly and correctly applied to petitioner [and] strictly enforced * * *.” Id. at 640, 88 S.Ct. at 2120. Houghton, then, is no more than a particular application of the general rule that there is no requirement to exhaust inadequate administrative remedies. See Davis, Administrative Law Treatise, 1958, § 20.07.

In the instant ease, however, as shall be developed, the administrative remedy available to plaintiffs was fully adequate to deal with the alleged misadmin-istration of the Illinois statute.

In summary, we are unable to find a complete abrogation of the exhaustion requirement in Civil Rights Act cases in the decisions cited by plaintiffs. Rather, we find only a pattern of flexibility in imposing the exhaustion requirement in this special area. Because of the important federal aspects of Civil Rights Act cases, the requirement may be more easily dispensed with in particular cases. This does not indicate, however, that it may be completely ignored.⁶

We turn then to the question of whether this .is a proper case for dispensing with the exhaustion requirement. This is not a ease like Damico or King where, because the statute is attacked on its face, it is unlikely that the administrative process will contribute anything to the resolution of the challenge. Here the only challenge is to the administration of the statute. In such a case the exhaustion requirement serves an obvious and sensible purpose. As the district court aptly said: “Before a federal court takes the drastic measure of assuming supervision over a major state administrative program, the plaintiff must present a record sufficient to show that the manner in which that program is administered violates her constitutional rights. * * * This court cannot rule that a statute is unconstitutionally administered when the plaintiff herself has not explored the available avenues of administration, and she merely speculates that the entire system is arbitrary.” ⁷

Plaintiffs, however, argue that when they first brought this action before the three judge court, it met the requirements of King and Damico and that that is sufficient to dispense with exhaustion. Any other result, they contend, would be unfair because of the delay involved in their unsuccessful suit before the three judge court. We cannot agree.

The sole question before the three judge court was the constitutionality of the statute on its face and exhaustion was inappropriate. However, after its decision, the sole question was the constitutionality as applied and exhaustion became appropriate. It was at this point that the exhaustion requirement arose. We perceive no unfairness in this. Plaintiffs came before the three judge court without first exhausting their state remedies as they had a right to do. However, their unsuccessful attack of the statute on its face may not now be pleaded as an excuse for dispensing with customary exhaustion requirements. Any delay resulting from the unsuccessful three judge proceedings must be laid to plaintiffs’ decision to pursue the course they did.

This is also not a case like Mc-Neese or Houghton where the state remedy is patently inadequate or futile. As interpreted by the three judge court, the Illinois statute requires shelter allowance exceptions whenever necessary to “provide a livelihood compatible with health and well-being.” It permits appeals from decisions “ * * * granting aid in an amount which is deemed inadequate.” Ill.Rev.Stat.1967, ch. 23, § 11-8.⁸ The appeal may be taken within 60 days after a decision is rendered, or if the department fails to act promptly on an application, 30 days after it is filed. 111. Rev.Stat.1967, ch. 23, § 11-8. An appealed decision must be reviewed and the appellant is entitled to appear in person, to be represented by counsel, and to present all relevant matter in support of the claim. Ill.Rev.Stat.1967, ch. 23, § 11-8.1. Generally, a decision must be rendered within 60 days of the filing of the appeal. Ill.Rev.Stat.1967, ch. 23, § 11-8.6. Judicial review of adverse administrative action is available. Ill.Rev.Stat. 1967, ch. 110, § 264 et seq. On its face, this appears to be a fully adequate remedy for the alleged wrongs charged by plaintiff.

But plaintiffs say the administrative remedy in practice is inadequate. They contend that it is futile to appeal to defendants because defendants know the current system is bad and refuse to change it. However, as previously pointed out, on its face the system is not “bad” even by plaintiffs’ criteria. It provides for granting exceptions whenever necessary to “provide a livelihood compatible with health and well-being.” The alleged problems in obtaining exceptions exist not because the current system is intrinsically unsatisfactory but only because it is allegedly administered in an unsatisfactory manner. While the administrative process might be inadequate to change the system, it is not inadequate to correct particular abuses within the system.

Plaintiffs further contend that the administrative remedy is inadequate because it can deal with the alleged wrongs only on a case by case basis and cannot afford efficient relief to the large class of plaintiffs. They contend that unending delays would result if this large class of plaintiffs were required to exhaust the administrative process before suit could be brought in federal court. But there is no such requirement. The complaint was dismissed only because the representative plaintiff had failed to exhaust her administrative remedy — not because the entire class had so failed. The purposes to be served by exhaustion would be served if the plaintiff before the court had first sought relief from the administrative process. No more than this was required and spectres of administrative chaos are out of place.

Thus, it is our conclusion that this is not a proper case in which to make an exception to the usual exhaustion requirements. The district court therefore properly dismissed Count II of the complaint for failure to exhaust an available and adequate state administrative remedy.

We further agree with the district court that plaintiffs have failed to state a cause of action. All of the alleged faults cited by plaintiffs as depriving them of federal rights are either correctable through the unexplored avenues of administrative appeal provided by the Illinois statute or are plainly frivolous.

Thus plaintiffs contend that the number of exceptions is plainly insufficient to meet the need. But it is uncontro-verted that the number of exceptions is and has been increased periodically as the reserve of exceptions is depleted and that such reserve was not depleted when this action was commenced.

Plaintiffs next say that the reserve remains undepleted only because exceptions are given only upon request and that qualified families often are not aware of their right to an exception. Plaintiffs urge that “surely a federal court can require those officials to take affirmative action to protect those rights” by requiring that exceptions be given “automatically” to qualified families. Plaintiffs cite no authority for this proposition. Nor do they allege that defendants are guilty of any bad faith nor that they purposefully discriminate against some public assistance families by keeping secret the existence of exceptions. Apparently all they claim is that the defendants have failed to search their records for families who might qualify for exceptions and to give such families exceptions they have not requested. We are not prepared to say that the federal Constitution requires this.

Plaintiffs further claim that notwithstanding the requirements of the statute, there are often long delays before there is action upon an application for an exception. However, plaintiffs do not allege that they have attempted to pursue the remedy specifically provided for such delay by filing an appeal after 30 days of inaction. Nor is there any allegation indicating that such remedy is in any way inadequate or futile.

Similarly, plaintiffs allege that exceptions are denied for frivolous or improper reasons. But, once again, these alleged improper decisions are appealable under the Illinois statute and plaintiffs will not be heard to say that the administration of the statute is arbitrary when there has been no real effort to work within the statutory scheme.

Finally, plaintiffs complain of the administrative practice whereby special procedures are required to obtain an “exceptional exception” of over $135. Plaintiffs urge that this practice is arbitrary in that the exception is denied in toto pending the special procedures rather than being granted in the amount of $135 with the balance only subject to the special procedures. Plaintiffs’ suggestion would require two determinations of eligibility rather than one. This alone provides a rational basis for the method now followed. No more is required. Dandridge, supra, 397 U.S. at 484-486, 90 S.Ct. 1153, 25 L.Ed.2d 491.

Thus, it was also proper to dismiss Count II for failure to state a cause of action.

Counts I and III were properly dismissed for the reasons given by the trial court.

Accordingly, the decision of the trial court is affirmed in all respects.

Affirmed.

2 . The district court found that all but one of the representative plaintiffs have been granted shelter allowances sufficient to cover their shelter costs since this action was initiated. Only Mrs. Ella Metcalf, on behalf of herself and her five children, remains as a representative plaintiff.

3 . We note that under Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), decided after the three judge opinion was issued, a statute imposing a flat maximum would not be per se unconstitutionally arbitrary.

4 . Plaintiffs also assert that dismissal was improper for the reason that the Illinois statute violates the Social Security Act, 42 U.S.C. § 301 et seq. Plaintiffs’ position in this respect has been considered and rejected by the Supreme Court. Dan-dridge, supra, 397 U.S. at .476-483, 90 S.Ct. 1153. Further consideration is unnecessary here.

5 . The Court cited Damico as direct support for this proposition. Apparently finding them different, the Court cited MoNeese and Monroe with the signal “See also.”

6 . The Second Circuit Court of Appeals has recently dealt with the cases cited by plaintiffs and has reached the same result as we do here. Eisen v. Eastman, 421 F.2d 560, 567-569 (2d Cir. 1969) cert. den., 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970).

7 . In Bisen, supra, 421 F.2d at 568, the Second Circuit expressed a similar concern :

“[T]he consequences of compelling federal courts to pass upon all complaints of unconstitutional acts by state and local officials at the lowest level, without any requirement of appeal to higher ones, would be so destructive of proper concepts of federalism and so needlessly burdensome to the federal courts * * (Footnote omitted.)

8 . We cannot agree with plaintiffs’ suggestion that this provision does not authorize an appeal from a decision denying a request for an exception to the shelter allowance maximum.