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

REYNOLDS, District Judge

(dissenting).

This is a class action welfare suit brought under the Civil Rights Act, 42 U.S.C. § 1983 and 28 U.S.C. § 1343 . The members of the class all pay more for shelter than they receive for that purpose in their public assistance grants and contend that the cause of this situation is that certain Illinois public assistance provisions are unconstitutionally applied to them by the defendants.

Plaintiffs originally began this lawsuit in July of 1968. This appeal is from the lower court’s dismissal of their amended complaint, which amendment was filed after the case was remanded to the single district judge by the three-judge court. The majority affirms the holding of the lower court that the plaintiffs are in the wrong forum- — -that they must exhaust their state administrative remedies.

I dissent. I believe that the district court erred in granting the motion to dismiss. 1 Exhaustion of state administra *1360 tive remedies is not required in an action properly brought under § 1983. I disagree with the majority’s interpretation of Supreme Court decisions on this issue and believe that Damico v. California, 389 U.S. 416 , 88 S.Ct. 526 , 19 L.Ed.2d 647 (1967), controls this case. Further, I believe that the analytical distinction which appears to flow from the majority opinion relating the exhaustion requirement to the form of constitutional attack (i. e., facial or as applied) to be in error. I also believe that this particular class action welfare suit is an improper case for requiring exhaustion of administrative remedies.

Exhaustion of state administrative remedies is not required before seeking vindication of one’s constitutional rights in federal court in an action properly brought under § 1983. Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961); McNeese v. Board of Education, 373 U.S. 668 , 83 S.Ct. 1433 , 10 L.Ed.2d 622 (1963); 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).

Damico v. California, supra, was a public assistance case where the administrative remedies, as plaintiffs point out, were substantially identical to those in this case. In Damico , the Supreme Court stated that resort to those administrative remedies was not a prerequisite to beginning an action in federal court for relief under the Civil Rights Act. The Damico court stated:

“ * * * The three-judge District Court dismissed the complaint solely because ‘it appear [ed] to the Court that all of the plaintiffs [had] failed to exhaust adequate administrative remedies.’ This was error. In McNeese v. Board of Education, 373 U.S. 668 [ 83 S.Ct. 1433 , 10 L.Ed.2d 622 ], noting that one of the purposes underlying the Civil Rights Act was ‘to provide a remedy in the federal courts supplementary to any remedy any State might have,’ id., at 672 , [ 83 S.Ct. at 1435 ], we held that ‘relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided [an administrative] remedy,’ id., at 671 [ 83 S.Ct., at 1435 ]. See Monroe, v. Pape, 365 U.S. 167, 180-183 [ 81 S.Ct. 473 , 5 L.Ed.2d 492 ], * * *” Id. at 416-417, 88 S.Ct. at 526. (Emphasis supplied.)

Later during the same term, the Supreme Court decided another public assistance case, King v. Smith, supra. After noting that the three-judge court below had “correctly adjudicated the merits of the controversy without requiring ap-pellees to exhaust state administrative remedies,” the Court stated:

“We reject appellants’ argument that appellees were required to exhaust their administrative remedies prior to bringing this action. Pursuant to the requirement of the Social Security Act that States must grant AFDC applicants who are denied aid ‘an opportunity for a fair hearing before the State agency,’ 42 U.S.C. § 602 (a) (4) (1964 ed., Supp. II), Alabama provides for administrative review of such denials. Alabama Manual for Administration of Public Assistance, pt. I, § II, pp. V-5 to V-12. Decisions of this Court, however, establish that a plaintiff in an action brought under the Civil Rights Act, 42 U.S.C. § 1983 , 28 U.S.C. § 1343 , is not required to exhaust administrative remedies, where the constitutional challenge is sufficiently substantial, as here, to require the convening of a three-judge court. Damico v. California, 389 U.S. 416 [ 88 S.Ct. 526 , 19 L.Ed.2d 647 ] (1967). See also McNeese v. Board of Education, 373 U.S. 668 , [ 83 S.Ct. 1433 , 10 L.Ed. *1361 2d 622 ] (1963); Monroe v. Pape, 365 U.S. 167, 180-183 [ 81 S.Ct. 473 , 5 L.Ed.2d 492 ] (1961). * * *” Id., at n. 4, page 312, 88 S.Ct. page 2131.

Finally, in Houghton v. Shafer, supra, a § 1983 action brought by a state prisoner where the lower courts had dismissed the complaint for failure to exhaust state administrative remedies, the Court said, 392 U.S. at 640, 88 S.Ct. at 2120:

“As we understand the submission of the Attorney General of Pennsylvania in this Court, the rules of the prison were validly and correctly applied to petitioner; these rules are further said to be strictly enforced throughout the entire correctional system in Pennsylvania. In light of this it seems likely that to require petitioner to appeal to the Deputy Commissioner of Correction, the Commissioner, or to the Attorney General would be to demand a futile act. In any event, resort to these remedies is unnecessary in light of our decisions in Monroe v. Pape, 365 U.S. 167, 180-183 , [ 81 S.Ct. 473 , 5 L.Ed.2d 492 ]; McNeese v. Board of Education, 373 U.S. 668, 671 , [ 83 S.Ct. 1433 , 10 L.Ed.2d 622 ]; and Damico v. California, 389 U.S. 416 , 88 S.Ct. 526 , 19 L.Ed.2d 647 . * * * ” (Emphasis supplied.)

The Court closed by saying that “[o]n the basis of these decisions,” the lower court judgment was to be reversed and remanded.

The majority opinion herein, after analyzing the above Supreme Court cases, states:

“ * * * 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. * * ”

I am of the opinion that the Supreme Court cases on § 1983 exhaustion do not yield a “pattern of flexibility in imposing the exhaustion requirement,” but, rather, yield the broad rule that exhaustion is not required in cases properly brought under the Civil Rights Act. However, it is not only the majority’s above-quoted, broad statement about exhaustion that troubles me but also the analysis through which the majority appears to find a broad pattern of flexibility. The majority appears to formulate a novel dichotomy regarding the exhaustion of administrative remedies which is related to the form of the constitutional attack. The opinion of the majority seems to imply that exhaustion in a § 1983 case should be governed by the following rule: Exhaustion is not required where the remedies are judicial or where a statute or regulation is attacked on its face as unconstitutional; however, exhaustion is to be required where the remedies are administrative and the statute, regulation, etc., is attacked as unconstitutional as applied.

I believe that the above mechanical distinction regarding the exhaustion requirement is in error. Initially, I believe that the majority’s as applied-facial attack distinction does not flow from the controlling decisions of the Supreme Court on § 1983 exhaustion requirements. I believe the majority’s interpretation of those cases to be in error. However, even the majority’s interpretation does not appear to me to furnish any support for the as applied-facial attack distinction.

As indicated above, I believe that Damico v. California, supra, stands for the proposition that exhaustion of administrative remedies is not a prerequisite to federal court suit under § 1983. I believe that the Damico case alone controls decision of this issue in this case because of the similarity of Damico to the instant case. However, the majority reads Damico as having been “narrowed” and “limited” by the subsequent decision of King v. Smith. The majority apparently places great importance on the phrase in King where the Court stated that plaintiffs in a § 1983 action were not required to exhaust administrative remedies “where the constitutional challenge is sufficiently substantial, as here, *1362 to require the convening of a three-judge court.” (Citing Damico, McNeese, and Monroe.) Thus, the majority states:

“ * * * 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 inap-posite here where the Illinois statutory provisions have been held constitutional on their face and where the sole challenge is to their application by defendants. * * *” See page 1356 above. (Emphasis supplied.)

I do not understand how King can reasonably be interpreted as narrowing or limiting Damico . I do not believe that the King court can reasonably be read as having held that the broad no-exhaustion policy summarized and enunciated in Damico is limited to three-judge court cases.® However, even assuming such an interpretation of King arguendo (although I believe it untenable), the majority’s as applied-facial attack dichotomy still does not follow. Assuming that certain three-judge court cases could be “as applied” cases, 2

3 exhaustion would not be required in many as applied cases. If a plaintiff attacked a statute of statewide applicability as being unconstitutional as applied and sought injunctive relief restraining the operation and enforcement of the statute, a three-judge court would be required, 4 and, hence, even under the assumed interpretation of King in question, exhaustion of administration remedies would not be necessary. Hence, even the above unrealistically narrow interpretation of King , limiting Damico to three-judge courts, does not seem to furnish support for the majority’s as applied-facial attack distinction.

I do not believe that anything contained in the recent Supreme Court cases on exhaustion requirements in § 1983 cases furnishes a ground for the majority’s as applied-facial attack distinction either explicitly or implicitly.

A further rationale which apparently underlies the majority’s as applied-facial attack formulation appears to be related to the “adequacy” of the administrative remedies in as applied cases. The majority implies that where the attack is as applied, the administrative remedies are “fully adequate” remedies for plaintiffs’ grievances. I do not understand how the form of the constitutional attack can be seen as automatically dictating the adequacy of the administrative remedies in this or any other case.

*1363 I believe Damico stands for the proposition that courts need not undertake a determination as to the “adequacy” of the state remedies. In Damico , although the remedies were stated to be “adequate,” exhaustion of administrative remedies was not required. Hence, requiring exhaustion on the basis of the “adequacy” of the state administrative remedies misses, in my view, the central thrust of Damico which was that “one of the purposes underlying the Civil Rights Act was ‘to provide a remedy in the federal courts supplementary to any remedy any State might have.’ ” Damico, supra, 389 U.S. at 416-417 , 88 S.Ct. at 526 . (Emphasis supplied.)

However, if any distinction regarding the form of the action and the adequacy of the state remedies is to be attempted (which, as indicated above, I think is unnecessary), I would submit that a more logical and practical distinction would be in terms of whether the action involves an individual grievance or the constitutional claims of a class of individuals.

In my view, administrative remedies are always inadequate, in one aspect, where plaintiffs present constitutional challenges. That is, the administrative agency cannot properly be the arbiter of constitutional disputes because this is a judicial question. Where a statute or regulation is attacked as being unconstitutional on its face, the agency cannot resolve that constitutional dispute. This is conceded by the majority herein. However, just as the agency cannot properly resolve a constitutional challenge to the face of a regulation or statute, neither can they, in my view, resolve the constitutional dispute surrounding a claim that a regulation or statute is unconstitutional as applied.

However, where an individual is involved, there is a potential for resolving the dispute without the necessity of deciding constitutional issues. That is, assuming the desire on the part of the agency to do so, the agency can simply grant the claim or grievance which underlies the constitutional challenge. In an instance involving one plaintiff in a dispute with a low level administrator, such a procedure might lead to the avoidance of a decision on a constitutional issue.

However, where class allegations of unconstitutionality are at issue, I submit that administrative remedies are always inadequate. In the instant case, the majority would have the named plaintiff exhaust her administrative remedies. This exhaustion requirement in this case appears to stem from the fact that the named plaintiff, on behalf of herself and many, many others, challenges the unconstitutionality of the statutes as applied. I fail to see how this makes a difference. How does the named plaintiff exhausting her administrative remedies resolve the constitutional claims of the class ? 5 The constitutional claims of the class cannot be resolved by requiring the named plaintiff to exhaust whether the constitutional claims are facial or as applied. Just as the agency in a welfare fair hearing cannot adjudicate the facial validity of a statute or regulation, neither can they properly adjudicate the constitutionality of a pattern of application of the statute or regulation to a class of plaintiffs. In both instances I submit that the administrative remedies are inadequate.

Hence, with regard to the “adequacy” of the state administrative remedy, I am of the opinion that, first, recent Supreme Court cases indicate that exhaustion in § 1983 cases does not turn on the *1364 adequacy of the state remedy; 6 and, second, in any event, the majority’s attempt to relate “adequacy” of the administrative remedy to the form of the constitutional attack advanced under § 1983 is in error. 7

In addition to the conceptual disagreements I have regarding the majority’s as applied-facial attack distinction, I also have some misgivings about the practical application of such a distinction in general and in the context of this case. The majority states:

“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. * * * ” (Emphasis supplied.)

It is common in my experience for a court, when faced with both facial and as applied constitutional challenges, to pass upon the facial allegations first. In such a case, the procedure outlined by the majority would mean that the exhaustion requirement could often “arise” in the middle of an ongoing lawsuit (after the Court had considered the facial validity issue) with the result that plaintiffs could find themselves out of court after considerable expenditure of time and resources. I believe that the potential unfairness of this procedure whereby the exhaustion requirement “arises” when the court turns to the “as applied issue” is illustrated in the instant suit. Plaintiffs’ claims relate directly to money in budgets utilized to attempt to sustain what are at best subsistence levels of existence. Their claims relate to matters that are immediate and crucial. After two and one-half years, plaintiffs are now told, in effect, to start all over again and to exhaust their administrative remedies before their claim under the Civil Rights Act will be considered any further by federal courts.

I would add one further note regarding the actual adequacy of the administrative remedies in this particular case. None of the plaintiffs was told that they must exhaust when they originally began this lawsuit. Now the named plaintiff must exhaust. However, I believe that it is now exceedingly doubtful that she will be permitted to exhaust. 8 Chapter 23, § 11-8, Ill.Rev.Stat., 1967, noted in the majority opinion above, states that an appeal from an adverse decision by the agency may be taken “within 60 days.” Since plaintiff’s adverse decision on her request for a shelter exemption was in 1968, I think it highly probable that an appeal is no longer permissible under the above provision governing agency appeals.

*1365 131 sum, I do not believe that plaintiffs in this case should be required to exhaust their administrative remedies any further at this time. I therefore dissent from the majority position affirming the lower court dismissal on this ground.

The majority states at page 1355 above that the lower court dismissed plaintiffs’ complaint for failure to exhaust available state administrative remedies and because the complaint “stated no ‘substantial constitutional claim [to] * * justify the assumption of jurisdiction * * * absent exhaustion of available state administrative remedies.’ ” As indicated earlier, 9 I believe that the lower court opinion indicates that the court may have read the language from King v. Smith as requiring some higher standard of substantiality for constitutional claims under § 1983 where exhaustion of administrative remedies is not required. To the extent that such an interpretation of King v. Smith was involved in the dismissal of this complaint, I disagree. I do not believe that by referring to the standard of substantiality in three-judge court cases, the King court was establishing thereby a higher standard for § 1983 cases in which exhaustion had not been accomplished by the plaintiffs. I do not understand the standard of substantiality of the constitutional claim in a potential three-judge court case to be any higher than that required for a single judge § 1983 action. The constitutional claim in a three-judge court case must not be “insubstantial.” Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129 (2d Cir. 1967). “The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject.” California Water Service Co. v. City of Redding, 304 U.S. 252, 255 , 58 S.Ct. 865, 867 , 82 L.Ed. 1323 (1938). Just as an “insubstantial” federal constitutional claim will not properly found jurisdiction in a case required by its nature to be heard by a court of three judges, neither will the same constitutional claim found jurisdiction in a case properly heard by a single judge. Hence, I do not believe that the language from King adverting to the substantiality of the constitutional claim in a three-judge court case can be read as establishing a new, higher standard of substantiality for the constitutional claim in a single judge § 1983 case before the exhaustion of administrative remedies requirement will be waived. To the extent such an interpretation of King underlies the dismissal of the complaint herein, I disagree.

The majority herein, however, also typifies the dismissal of the complaint below as being based upon the plaintiffs’ failure to state a claim. 10 “[T]he accepted rule [is] that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99, 102 , 2 L.Ed.2d 80 (1957).

I am of the opinion that it is insufficiently clear on the present record that plaintiffs cannot prove a set of facts entitling them to relief to warrant dismissal of the complaint on this basis. I would have denied the motion to dismiss and required the defendants to answer.

. At the outset, I have serious doubts about the power of the district court to have dismissed the amended complaint in this case. If it is claimed that a statute or regulation of state-wide applicability is unconstitutional, as applied to plaintiffs, three judges are required if the claim is coupled with a demand for injunctive relief. Turner v. Fouche, 396 U.S. 346 , 353 n. 10, 90 S.Ct. 532 , 24 L.Ed.2d 567 (1970); Wright, The Law of Federal Courts (1970 ed.), p. 190 and cases cited therein.

The lower court does not appear to have regarded the case as one requiring three judges, and it does not appear that the plaintiffs requested the convening of such a court. However, the majority herein clearly regards the plaintiffs’ claim as an “as applied” constitutional attack.

The original three-judge court in this case stated that plaintiffs were attacking the statute on its face and as applied. However, in footnote 1 of their opinion, the three judges note that the original complaint failed to make the requisite demand for a declaration of unconstitutionality and injunctive relief on that ground and state that this defect would have to be resolved on remand to the single judge. On remand, the plaintiffs filed an amended complaint, Count II of which begins as follows:

“1. This Count seeks a declaratory judgment of the unconstitutionality of

dle action of defendants in applying and administering the shelter allowances provision of the Illinois Public Aid Code, Ch. 23, secs. 12-4.11, 12-14, Ill.Kev. Stat., 1967, and a preliminary and permanent injunction against the continued application and administration of these provisions in this manner.”

There is the further ambiguity involved in accurately ascertaining the precise ground on which the lower court dismissed the plaintiffs’ amended complaint. The court stated that Count II was to be dismissed because of plaintiffs’ failure to exhaust. However, it also stated that plaintiffs’ constitutional allegations did not “approach constitutional dimensions which would justify the assumption of jurisdiction by this court absent exhaustion of available state administrative remedies.” The majority herein notes this ground of dismissal but also later refers to the dismissal as being for failure to state a cause of action, page 1358 above. It is unclear to me whether the lower court was dismissing because the federal constitutional question was “insubstantial,” which it clearly could do (Weintraub v. Hanrahan, 435 F.2d 461 (7th Cir. 1970)), or for some other reason inconsistent with the powers of a single judge in a case properly heard by three judges. As will be discussed below, I have considerable doubt as to whether or not the lower court may not have been *1360 of the view, that some type of higher constitutional standard of substantiality was required where exhaustion was a factor — a view with which I disagree and believe to be in error.

. See Hall v. Garson, 430 F.2d 430 , 436 n. 9 (5th Cir. 1970). I submit that such an interpretation of Damico and King would be unrealistically mechanical and would make little practical sense. Reading Damico as limited only to three-judge court cases under § 1983 would mean, for example, that the exhaustion requirement could conceivably hinge on whether or not the plaintiff requests only declaratory relief or both declaratory and in-junctive relief. (Since assuming an attack upon a statute of state-wide applicability, the former claim would not require a court of three judges, whereas the latter would require a court of three judges.) Likewise, the exhaustion requirement could turn on whether a constitutional challenge was made to a statute of statewide applicability or merely to a local ordinance or statute of limited applicability. Two of the three cases cited by the Court in King, McNeese, and Monroe did not involve three-judge courts. In Hough-ton, supra, decided the same day as King , the judgment below was reversed for having required exhaustion of administrative remedies in a non-three-judge court case.

. See n. 1, supra, this dissenting opinion.

. IUd.

. “ * * * if the plaintiff is required to proceed first through the state agency, there is a clanger that the agency proceedings will terminate in an individual settlement which satisfies the complaint, but neither changes the rule nor subjects it to external scrutiny. Where this happens, others who, because of fear, ignorance, or lack of resources, fail to mount challenges of their own, continue to be governed by a rule of questionable constitutionality.” Note, Exhaustion of State Remedies Under the Civil Rights Act, 68 Columbia L.Rev. 1201, 1208 (1968).

. For a discussion of some of the difficulties potentially inherent in the adequacy of the state remedy approach, such as when precisely a state remedy is to be deemed adequate, see Chevigny, Section 1983 Jurisdiction: A Reply, 83 Harv.L.Rev. 1352 (1970).

. At n. 5 above, the majority implies that the Second Circuit in the case of Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), reached the same result in dealing with this problem. Eisen . was not a welfare suit and it was not a class action. In his analysis of King and Damico , Judge Friendly stated that it was difficult to see what resort to state fair hearings could have accomplished and referred in that regard to a well known article dealing with federal judicial review of state welfare practices wherein the author discusses the practical inadequacy of state administrative remedies in welfare cases. Note, Federal Judicial Review of State Welfare Practices, 67 Columbia L.Rev. 84, 103-106, cited at p. 569 in Eisen, supra. [See also pages 92-96 in the Note.] Eisen did not articulate a rule of exhaustion related to whether the constitutional attack was facial or as applied.

. I assume that the only “remedy” the plaintiff must exhaust under the mandate of the majority opinion is her welfare “fair hearing” since the majority concedes that judicial remedies need not be exhausted under § 1983. (In this connection I do not understand the majority opinion including judicial review of the agency appeal as one of the remedies open to plaintiff in this case.)

. See note 1, supra, this dissenting opinion.

. See page 1358 above.