Appendix — Quern v. Mandley

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ARTHUR F. QUERN, DIRECTOR OF THE ILLINOIS

DEPARTMENT OF PUBLIC AID, ET AL.,

+ Petitioners,

vs.

VENUS MANDLEY, ET AL.

| Respondents.

No. 76-1416

JOSEPH A. CALIFANO, SECRETARY OF THE

UNITED STATES DEPARTMENT OF HEALTH,

EDUCATION AND WELFARE,

Petitioner,

VS.

VENUS MANDLEY, ET XL.,

Respondents.

ON WRITS OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITIONS FOR WRITS OF CERTIORARI

FILED FEBRUARY 22 AND APRIL 13, 1977.

CERTIORARI GRANTED JUNE 6, 1977

Keenan Pins Company (312) ee. 365

IvEM Pace

e cccccces 2

Amended Complaint with Exhibit Filed December 20,

e a ... 13

r ũ u; 000 25

Opinion of United States Court of Appeals for the

Seventh Cireuit Rendered on September 25, 1975 .. 31

Proposed Partial Final Judgment Order Filed With

the District Court on November 26, 1975 ..........

Order of District Court Entered December 1, 1975 58

State Defendants’ Motion to Dismiss Filed December

ee es oa oe eee 59

r òͥ ’'”wößr: SEE EE e 61

r è²¹TQTÄ eee 63

Federal Defendant's Motion to Dismiss Filed Decem-

D èêÄłi . . . 06 6⁵

Plaintiffs’ Answer to Defendants’ Motions to Dismiss

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e è SE SESS PPPOE ETE oe 72

r cc ccceccces 76

, / ‚’TÄ⅛Ä e . 77

e ůͤͤͥͤů A eee 79

D , .o eee 80

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Supplement and Amendment to Plaintiffs’ Answer to

Defendants’ Motions to Dismiss Filed December 18,

eee ee eee eee eee e 82

ii.

IvEM Page

State Defendants’ Objections to Entry of Proposed

Order Filed January 21, 197 505 sees 97

Federal Defendant’s Objections to Plaintiffs’ Proposed

Final Judgment Filed January 22, 1976 .......... 102

Order Entered July 12, 197 — 106

Transcript of Hearing Held July 12, 1976 .......... 106

Opinion of the United States Court of Appeals for the

Seventh Circuit Rendered November 23, 1976 ...... 119

Order Entered November 29, 197cù%% 142

IN THE

Supreme Court of the United States

Octropex Term, 1976

No. 76-1159

ARTHUR F. QUERN, DIRECTOR OF THE ILLINOIS

DEPARTMENT OF PUBLIC AID, ET AL.,

Petitioners,

vs.

VENUS MANDLEY, ET AI.

Respondents.

No. 76-1416

JOSEPH A. CALIFANO, SECRETARY OF THE

UNITED STATES DEPARTMENT OF HEALTH,

EDUCATION AND WELFARE,

Petitioner,

vs.

VENUS MANDLEY, ET AL.

Respondents.

ON WRITS OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

DATE

9-25-73

9-28-73

12-20-73

1-9-74

2-11-74

3-13-74

7-17-74

11-21-74

APPENDIX

RELEVANT DOCKET ENTRIES

PROCEEDINGS

Filed Complaint and one copy.

Filed defendant’s Answer.

Filed AMENDED COMPLAINT.

Filed defendants’ notice: answer to amended

complaint.

Filed Amendment to answer to amended com-

plaint.

Filed answer of Secretary of Health, Education

and Welfare to amended complaint.

Enter order dated 7-16-74: Enter order that

motion of defendants Edelman and Illinois De-

partment of Public Aid to amend their answer

to amended complaint, and verbal motion of de-

fendant U.S. Department of Health, Education

& Welfare to similarly amend its answer, are

granted, and trial date will stand unless plaintiffs

file a Second Amended Complaint. (DRAFT)

~ MeMillen, J.

Notices mailed 7-17-74.

Enter order dated November 21, 1974: Enter

decision that judgment is entered in behalf of

the defendants on the amended complaint inso-

far [as] it challenges the content of former de-

fendant Edelman’s emergency axsistance pro-

gram as it existed on October 2, 1973, but State

defendant is orden A to show cause within a rea

sonable time he io the administration and

10-24-75

10-28-75

11-3-75

PROCEEDINGS

delivery of emergency assistance can be expe-

dited, preferably on the next court date. This

case will be called for a progress report on Tues-

day, December 3, 1974 at 10:00 a.m. (DRAFT)

— MeMillen, J.

Notices mailed 11-21-74.

Filed Certified Copy of an order dated Septem-

her 25, 1975 from the USCA, 7th Cireuit: Judg-

ment AFFIRMED as to the order of March 14.

1975; and the order of November 21, 1975, is

REVERSED insofar as it sustained the valid-

ity of the Illinois program for emergency assist-

ance, in accordance with the opinion of this Court

filed this date. Costs of this appeal are awarded

to plaintiffs.

Enter order dated October 24, 1975: Enter

order that since the position of the parties with

respect to further litigation in this case must

ne determined after the mandate has been re-

ceived from the Court of Appeals, thus [sic] case

will be called for a report on status on Friday,

October 31, 1975 at 10:00 a.m., at which time the

parties will be expected to outline to the court

what they propose to do in order to avoid fur

ther hearings, or if such hearings are neces-

sary, what issues will be litigated therein.

(DRAFT) — MeMillen, J.

Notices mailed 10-28-75.

Enter order dated October 31, 1975: Plaintiff's

motion jor leave to submit a proposed final

judgment is denied. Cause is continued for a

DATE

11-25-75

12-1-75

12-2-75

12-4-75

12-9-75

12-10-75

12-12-75

12-17-75

PROCEEDINGS

status report to November 18, 1975 at 11:30 a.m.

— MeMillen. J.

Notices mailed 11-3-75.

Filed plaintiffs’ report on defendants’ attempt

to evade requirements of § 406(e) of the Social

Security Act; affidavit by Michael F. Lefkow;

notice of filing.

Filed defendants’ notice of filing; motion to

dismiss; attachments.

Filed plaintiffs’ motion for entry of final judg-

ment and decree.

Enter order dated December 1, 1975: Plaintiffs’

motion for entry of final judgment and decree

is denied. Defendants are granted 1 week to file

memorandum in support of their motion to dis-

miss for want of mootness, responsive memo-

randa shall be filed 1 week thereafter and the

motion to dismiss will be taken under advise-

ment. Cause is taken off the call. — MeMillen, J.

Notices mailed 12-2-75.

Filed plaintiffs’ request for admission of facts.

Filed plaintiffs’ request for production of docu.

ments.

Filed Government’s motion.

Filed plaintiffs’ motion to reconsider entry of

final judgment and decree.

Filed plaintiffs’ answer to defendants’ motions

to dismiss.

Filed plaintiffs’ memorandum in opposition to

motions to dismiss; exhibits.

—

DATE

12-18-75

12-31-75

1-21-76

1-22-76

2-3-76

2-9-76

PROCEEDINGS

Filed supplement and amendment to plaintiffs’

answer to defendants’ motions to dismiss; ex-

hibits.

Filed notice of appeal on behalf of plaintiffs.

Filed defendants’ notice of filing with objections

to the entry of plaintiffs’ proposed order.

Filed federal defendants’ objections to plain-

tiffs’ proposed final judgment.

Enter order dated December 31, 1975: Enter

decision that motion of defendants to dismiss

this case as moot is denied. Further ordered that

defendants file their objections to proposed fi-

nal judgment and decree filed by plaintiffs here-

in on November 26, 1975 within 3 weeks hereof,

serving a copy of their objections on attorneys

for plaintiffs. This case will be called for a re-

port on status on MONDAY. MAY 3, 1976 at

10:00 a.m. subject to whatever motions may be

filed by any party, if any. (DRAFT). - MeMillen,

Notices mailed 2-3-76.

Filed plaintiffs’ motion to dismiss appeal.

Filed plaintiffs’ motion for leave to file instan-

ter response to defendants’ objections to final

judgment and decree.

Filed plaintiffs’ motion for entry of final judg-

ment and decree.

Filed plaintiffs’ motion for award of attorney's

fees.

DATE

2-10-76

4-2-76

4-13-76

4-14-76

4-15-76

5-3-76

5-4-76

PROCEEDINGS

Enter order dated February 9, 1976: Plaintiffs’

motion to dismiss appeal is granted. Plaintiffs’

motions (1) for leave to file response to ob-

jected final judgment, (2) to enter final judg-

ment and decree and (3) to award attorneys’ fees

are entered and continued to May 3, 1976 at 10:00

a.m. — MeMillen, J.

Notices mailed 2-10-76.

Filed Certified Copy of Order from U.S. C. A. 7th

Circuit dated May 31, 1976: IT IS ORDERED

that the aforesaid petition for Writ of Manda-

mus be, and the same is hereby, DENIED.

Filed defendant James L. Trainor’s notice of

motion with motion for a protective order with

affidavits of Jesse B. Harris and George Grum-

ley.

Filed plaintiffs’ response to motion for protec-

tive order.

Enter order dated April 14, 1976: Ordered that

defendant James L. Trainor is protected from

having his deposition taken. Until further order

of this court. (DRAFT) — MeMillen, JJ.

Notices mailed 4-15-76.

Filed state defendants’ Notice of Filing; Report

to the Court.

Enter order dated 5-3-76: State defendants

granted 10 days to file description of plan. Par-

ties granted 1 week thereafter to file objections.

Further status report is continued to Monday,

May 24, at 11 a.m. MeMillen, J.

5-4-76

5-12-76

5-19-76

5-21-76

5-24-76

6-2-76

6-18-76

6-21-76

PROCEEDINGS

Enter order dated 5-3-76: Plaintiffs’ motion for

leave to file response to objected final judgment,

to enter final judgment and for attorneys’ fees

is entered and continued generally. — McMillen,

Notices mailed 5-4-76.

Filed state defendants’ Notice of Filing; Report

to the Court of Description of Defendants’ Pro-

posed Plan for Emergency Assistance.

Filed Plaintiffs’ Statement in Lieu of Objec-

tions to Defendants’ Proposed Plan for Emer-

gency Assistance.

Filed Secretary’s Comments on Director Train-

or’s Plan Description filed May 12, 1976.

Filed State Defendants’ Notice of Motion: Mo-

tion to Change Status Date.

Enter order dated 5-21-76: Defendants granted

10 days to file an Amended Plan. Status report is

reset from May 24, 1976 to Tuesday, June 1,

1976 at 10:30 a.m. — MeMillen, J.

Notices mailed 5-24-76.

Enter order dated 6-1-76: Further status report

is continued to Monday, June 21, 1976 at 10 a.m.

— MeMillen, J.

Notices mailed 6-2-76.

Filed defendants’ Notice of Filing; Report of

Status.

Filed plaintiffs’ June 21, 1976 report to the

Court.

7-9-76

7-12-76

7-13-76

7-21-76

7-27-76

7-28-76

Filed plaintiffs’ July 6, 1976 report to the

Court.

Enter order dated 7-6-76: Plaintiff granted to

July 12, 1976 at 10:30 a.m. to file an amended

complaint. McMillen, J.

Notices mailed 7-7-76.

Filed plaintiffs’ memorandum in support of mo-

tion to vacate order and to compel deposition of

defendant Trainor.

Filed plaintiffs’ Notice of taking depositions of

James L. Trainor et al and Notice to produce

documents.

Filed Notice of Filing.

Filed plaintiffs’ Motion to vacate.

Enter order dated 7-9-76: Plaintiffs’ motion to

vacate protective order and to compel deposition

of defendant Trainor is denied. MeMillen, J.

Notices mailed 7-12-76.

Enter order dated 7-12-76: Defendant’s motion

to dismiss for mootness is granted, and this cause

is dismissed for lack of case or controversy. — Me-

Millen, J.

Notices mailed 7-13-76.

Filed plaintiffs’ Motion to vacate dismissal.

Filed plaintiffs’ Motion to advance time for de-

fendants’ response to Rule 59 motions and to set

decision date for July 30, 1976.

Enter order dated 7-27-76: Plaintiffs’ motion to

advance time to defendants’ response and ruling

date is denied. MeMillen, J.

Notices mailed 7-28-76.

DATE

PROCEEDINGS

8-11-76 Filed plaintiffs’ Notice of Appeal from the or-

8-31-76

9-3-76

11-12-76

11-19-76

11-23-76

11-30-76

12-6-76

der granting defendants’ motion to dismiss as

moot entered July 12, 1976.

Filed plaintiff/appellant’s Notice of Emergency

Appeal.

Certified and transmitted Emergency Record on

Appeal consisting of District Court’s order of

July 12, 1976, dismissing the case and certified

copy of the docket entries, along with the letter

request for expedited appeal.

Filed USCA No. 76-1865.

Enter order dated November 11, 1976: Enter

decision that motion of plaintiff to vacate dis-

missal and to allow discovery of defendant

Trainor is denied (DRAFT). — MeMillen, J.

Notices mailed 11-12-76.

Filed plaintiffs’ Notice of Appeal from the Or-

der and decision of November 11, 1976, and from

the district court’s order of dismissal dated July

12, 1976.

Filed certified copy USCA: It is ordered and

adjudged that the judgment of the district court

in this cause appealed from be and the same is

hereby reversed and remanded in accordance with

the opinion filed this date.

Enter order dated November 29, 1976: Enter

final judgment and decree (draft) (taken off the

call for December 1, 1976). — McMillen, J.

Notices mailed 11-30-76.

Filed state defendants’ Notice of Filing; De-

fendant James L. Trainor’s Response to Final

DATE

12-10-76

12-15-76

12-21-76

12-27-76

PROCEEDINGS

Judgment and Decree“ entered November 29,

1976.

Enter order dated December 10, 1976: Plain-

tiffs’ motion for rule to show is entered and con-

tinned to Monday, December 13, 1976 at 11:30

a. m. MeMillen, J.

Notices mailed 12-10-76.

Filed state defendants’ Notice of Motion; Mo-

tion to Alter or Amend Order of November 29,

1976.

Filed plaintiffs’ Motion for Rule to Show Cause;

Notice of Filing.

Enter order dated December 13, 1976: State

defendants granted 10 days to file sworn response

to motion for rule to show cause. — MeMillen, J.

Notices mailed 12-15-76.

Filed state defendants’ Notice of Filing; De-

fendants’ Memorandum in Opposition to Plain-

tiffs’ Motion for a Rule to Show Cause and, in

Support of Defendants’ Motion to Alter or

Amend the Final Judgment and Decree and Sec-

ond Report to the Court.

Filed Motion to Strike from the Record State

Defendants’ Motion to Alter or Amend the Judg-

ment and their reports of December 6 and De-

cember 21, 1976.

Filed Motion for Supplemental Rule to Show

Cause Why the State Defendants Should Not Be

Held in Contempt of Court.

Enter order dated December 27, 1976: Plain-

tiffs’ motions for supplemental rule to show

DATE

12-28-76

1-4-76

1-19-77

1-25-77

2-1-77

2-22-77

PROCEEDINGS

cause, to strike, for leave to file memorandum

and defendants’ motion under 59(e) are entered

and continued to Monday, January 3, 1977 at

10:30 a.m. — MeMillen, J.

Notices mailed 12-27-76.

Filed Statement to the Court in Lieu of Sub-

mission of Draft Injunction Against State De-

fendants.

[sic] Enter order dated January 3, 1977: De-

fendants granted 14 days to file a response to rule

to show cause and supporting memo to motion

under 59(e): taken under advisement. — MeMil-

len, J.

Notices mailed 1-4-77.

Enter order dated January 17, 1977: State de-

fendants are given to and including January

25, 1977, to file their briefs in support of their

motion to alter this Court’s Judgment Order and

in opposition to plaintiffs’ motion for Rules to

Show Cause. Plaintiffs granted tv February 4,

1977 to reply. MeMillen, J.

Notices mailed 1-19-77.

Filed opinion: It is ordered that this appeal

from the decision of the USDC be and the same

is hereby dismissed pursuant to Rule 42(b)

FRAP.

Filed letter of transmittal; certified copy of or-

der signed January 28, 1977 staying and recall-

ing the mandate of the USCA, 7th Cireuit.

Filed Defendant Califano’s submission to Court

of Proposed Regulations.

DATE

2-24-77

3-14-77

3-15-77

3-28-77

3-30-77

4-25-77

4-26-77

6-8-77

PROCEEDINGS

Filed copy of letter addressed to Hon. Daniel

M. Friedman, USSC re application of extension

of stay of mandate of USCA denial, dated Feb-

ruary 18, 1977.

Filed Plaintiffs’ Response to Defendant Cali-

fano’s Amended Submission to Court of Pro-

posed Regulations.

Filed defendant Califano, Jr.’s Amended Sub-

mission to Court of Proposed Regulations.

Enter order dated March 14, 1977: Leave granted

to file Califano’s amended submission to court of

proposed regulations. - MeMillen, J.

Filed plaintiffs’ Motion for Award of Attor-

neys’ Fees.

Enter order dated March 28, 1977: Plaintiff

granted 15 days to file affidavit and memo re mo-

tion for attorneys’ fees. Defendant granted 10

days thereafter to reply. - McMillen, J.

Notices mailed 3-30-77.

Filed defendant’s Notice of Motion; Motion for

an Extension of Time.

Enter Order dated April 25, 1977: Federal

and state defendants are granted 2 weeks to

file answering memo re motion for fees. Plaintiffs

granted 5 days thereafter to reply. — MeMillen, J.

Notices mailed 4-27-77.

Enter order dated 6-7-77: In view of the fact

that the United States Supreme Court has

granted defendants’ petitions for writ of certi-

orari on June 6, 1977, we will hold all motions

currently pending before us in abeyance pending

the Supreme Court’s decision. - MeMillen, J.

Notices mailed 6-8-77.

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANN KILGORE, VENUS MAND.

LEY, GARY McELROY, FRANCES

GALLMAN, individually and on be-

half of their minor children and on |

behalf of all others similarly situ-

ated; the CHICAGO WELFARE

RIGHTS ORGANIZATION, an Un

nois not-for-profit corporation; and

the ILLINOIS WELFARE RIGHTS

ORGANIZATION, an unincorporated

association,

Plaintiffs,

vs.

JOEL EDELMAN, Director, Illinois

Department of Publie Aid; the ILLI.

NOIS DEPARTMENT OF PUBLIC

AID; and the UNITED STATES

DEPARTMENT OF HEALTH, ED.

UCATION AND WELFARE,

Defendants. J

No. 73 C 2453

7? eo — 0 „

1. This is an action for declaratory and injunctive re-

lief, authorized by the Civil Rights Act, 42 U.S.C. § 1983,

to secure rights established by the Social Security Act

(the Act), section 406(e), 42 U.S.C. §606(e) in which

Congress established a program to provide emergency

assistance to needy families with children, and to secure

rights pertaining to emergency assistance which are set

out in sections 402 and 403(a)(5) of the Act, 42 U.S.C.

§§ 602, 603 (a) (5), and in regulations promulgated by the

United States Department of Health, Education and Wel-

fare, 45 C.F.R. 58 201.2, 201.3, 205.5, 233.10(a) (1) (ii), and

233.120. Plaintiffs individually and on behalf of all others

similarly situated seek to enjoin the defendants from ad-

ministering its emergency assistance program in viola-

tion of federal and state law.

2. Jurisdiction is conferred on this court by 28 U.S.C.

88 1331, 1343(3) and (4), and 1346. Declaratory judgment

is sought pursuant to 28 U.S.C. §§ 2201 and 2202 and Rule

57 of the Federal Rules of Civil Procedure. The amount in

controversy exceeds $10,000.

„3. Plaintiff Ann Kilgore is a citizen of the United States

and a resident of Chicago, Illinois. She is suing individ-

ually and on behalf of her minor child, William, and on

behalf of all others similarly situated.

4. Plaintiff Venus Mandley is a citizen of the United

States and a resident of Chicago, Illinois. She is suing in-

dividually and on behalf of her two minor children, Keith

and Meredith, and on behalf of all others similarly situ-

ated.

5. Plaintiff Gary McElroy is a citizen of the United

States and a resident of Chicago, Illinois. She is suing in-

dividually and on behalf of her five minor children, Mar-

quita, Mongo, Ivy, Carolyn and Larry, and on behalf of

all others similarly situated.

6. The named plaintiffs are all recipients of Aid to Fam-

ilies with Dependent Children (AFDC), a federally funded

program established by Title IV of the Social Security Act

providing for protection of needy families.

7. Plaintiff Chicago Welfare Rights Organization is an

Illinois not-for-profit corporation organized to assist its

member community welfare organizations in the allevia-

tion of poverty and enforcement of the legal rights of

their members, who are welfare recipients and other poor

persons. Members of the local community welfare organ-

izations are entitled to receive emergency assistance un-

der the conditions established by the Social Security Act

and regulations issued thereunder.

8. Plaintiff Illinois Welfare Rights Organization is an

unincorporated association of local welfare organizations

in Illinois having a community of interest in assisting in

the alleviation of poverty and enforcement of the legal

rights of welfare recipients. Members of the local welfare

organizations are entitled to receive emergency assistance

under the conditions established by the Social Security Act

and regulations issued thereunder.

9. The individual (non-organizational) plaintiffs bring

this action individually and on behalf of all others simi-

larly situated pursuant to Rule 23 of the Federal Rules

of Civil Procedure. The class is composed of all AFDC

recipients, applicants for AFDC, and other families with

needy children in Illinois.

10. The class is so numerous that joinder of all mem-

bers is impractical. There are questions of law and fact

common to the class, and these questions predominate over

any questions affecting only individual members. Plain-

tiffs’ claims are typical of the claims of the class. Plain-

tiffs will fairly and adequately protect the interests of

the class. The defendants have acted on grounds generally

applicable to the class, thereby making appropriate in-

junctive and declaratory relief with respect to the class

as a whole.

11. Defendant Joel Edelman is Director of the Illinois

Department of Public Aid and is charged with statewide

administration of the federally funded public assistance

programs, and with conforming the program to federal

and state statutes and regulations pertaining to such pro-

grams.

12. Defendant Illinois Department of Public Aid (IDPA)

is the agency of the State of Illinois that administers the

public assistance programs in Illinois.

13. Defendant United States Department of Health, Ed-

ucation and Welfare is the agency of the United States

government that administers and funds public assistance

programs of participating states, including Illinois.

14. AFDC is a program of assistance providing funds

for basic maintenance for needy families with dependent

children in which Illinois participates.

15. Emergency assistance is a separate program of as-

sistance for AFDC recipient families and other families

with needy children, providing funds to meet non-recur-

ring emergencies, as opposed to regular maintenance

needs, to both recipients and non-recipient families.

16. The emergency assistance program is defined by

section 406(e) of the Social Security Act, 42 U.S.C.

§ 606(e), as follows:

(%%) The term ‘‘emergency assistance to needy

families with children“ means any of the following,

furnished for a period not in excess of 30 days in any

12-month period, in the case of a needy child under

the age of 21 who is (or, within such period as may

be specified by the Secretary, has been) living with

any of the relatives specified in subsection (a)(1) of

this section in a place of residence maintained by one

or more of such relatives as his or their own home but

only where such child is without available resources

the payments, care, or services involved are neces-

sary to avoid destitution of such child or to provide

living arrangements in a home for such child, and such

destitution or need for living arrangements did not

arise because such child or relative refused without

good cause to accept employment or training for em-

ployment —

(A) money payments, payments in kind, or such

other payments as the State agency may specify with

respect to, or medical care or any other type of re-

medial care recognized under State law on behalf of,

such child or any other member of the household in

which he is living, and

(B) such services as may be specified by the See-

retary; but only with respect to a State whose State

plan approved under section 602 of this title includes

provision for such assistance.

17. Participation in the federally funded emergency as-

sistance program is optional with the states, but partici

pating States must comply with federal requirements. IIli—

nois participates in and receives federal funding under the

emergency assistance program established by the Social

Security Act, 42 U.S.C. § 606(e).

18. The emergency assistance program at issue pur-

ports to be the only assistance the IDPA provides plain-

tiffs and the class they represent in times of emergency.

A copy of the emergency assistance program is attached

as Exhibit A to this amended complaint.

19. Under the existing plan, emergency assistance is

provided only for the following emergencies:

a) When an AFDC family is homeless as a result of

damage to the building, rendering it uninhabitable; or

when a court-ordered eviction occurs for reasons other

than the AFDC recipient’s failure to pay rent: or when

the AFDC family is potentially homeless due to damage

to a portion of the building.

b) When the AFDC applicant, determined presump-

tively eligible for AFDC, is in emergency need of eloth-

ing and/or household furnishings and equipment. (Emer-

gency food and rent can also be authorized by disburs-

ing order at the time the applicant is determined pre-

sumptively eligible as provided in this subparagraph.)

20. Under the plan, no assistance is provided to AFDC

recipients, applicants for AFDC, and other needy families

with children who face destitution, but do not qualify un-

der the categories enumerated in paragraph 19 herein.

21. Plaintiff Ann Kilgore and her son William receive

$196 per month under the AFDC program. Her husband,

Ralph Kilgore, reecives approximately 840 per month un-

der disability assistance for a family total of $236.

22. Plaintiff Venus Mandley and her two children re-

ceive $236 per month under the AFDC program, plus an

additional $61 excess rent as long as she remains at her

present address.

23. Plaintiff Gary McElroy and her five children receive

$389 per month under the AFDC program.

24. On October 16, 1973, a fire in Mrs. McElroy’s apart-

ment destroyed virtually all of the clothing of herself

and her three-year-old daughter, Marquita. The fire also

destroyed two of the family’s beds. In addition, the fire

destroyed two dressers, bed linens, towels, and other house-

hold furnishings, as well as food stamps for the month

of October.

25. Plaintiff McElroy applied for emergency assistance

on October 17, 1973 to restore the clothing, household fur-

nishings and equipment destroyed by the fire and to ob-

tain emergency food.

26. Plaintiff MeElroy's application for emergency as-

sistance was denied by agents of defendants Edelman and

IDPA because her emergency did not fall within the cate-

gories enumerated in paragraph 19 of this amended com-

plaint, namely, because there was no structural damage

to the building causing potential homelessness.

27. Plaintiff McElroy has no funds with which to re-

place the items destroyed by the fire which are necessary

for a minimal livelihood.

28. As a result of the allegations stated in paragraphs

23-27 herein, plaintiff McElroy and her family are suffer-

ing destitution and injury to their health and well being.

29. Plaintiff Frances Gallman and her four children and

one grandchild receive $389 per month under the AFDC

program.

30. On November 24, 1973, Mrs. Gallman was attacked

and robbed of $550 while on her way to place a cash seen-

rity deposit and rent payment, as demanded by the land-

lord, on an apartment to which she planned to move.

31. Thereafter, Mrs. Gallman applied for emergency as-

sistance to enable her and her family to avoid destitution.

32. Agents of defendants Edelman and IDPA denied

plaintiff Gallman’s application for emergency assistance

because her emergency did not fall within the categories

enumerated in paragraph 19 of this amended complaint.

33. Plaintiff Gallman has insufficient funds to meet her

needs and the needs of her family.

34. As a result of the allegations stated in paragraphs

29-33 herein, plaintiff Gallman and her family are suffer-

ing destitution and injury to their health and well being.

35. Members of plaintiff Chicago Weifare Rights Or-

ganization include AFDC recipients and other families

with needy children who are and will be in need of emer-

gency assistance under the emergency assistance program

of the IDPA.

36. Members of plaintiff Illinois Welfare Rights Organ-

ization include AFDC recipients and other families with

needy children who are and will be in need of emergency

assistance under the emergency assistance program of the

IDPA.

37. Emergency assistance for emergencies not enumer-

ated in paragraph 19 herein which have arisen and will

arise for all the plaintiffs and members of the class, and

members of the organizational plaintiffs, will be neces-

sary to avoid destitution and to protect the health and

well being of these needy families.

38. Defendants Edelman and IDPA’s emergency assist-

ance program fails to meet the requirements of 42 U.S.C.

§ 606(e) and regulations promulgated thereunder, 45 C.F.R.

§ 233.120 in the following respects: it fails to provide as-

sistance to avoid destitution resulting from lack, loss or

destruction of food, clothing, shelter, utilities, personal

essentials and household supplies, and it fails to provide

that emergency assistance will be given forthwith.

39. The emergency assistance plan excludes persons

from emergency assistance on an arbitrary, unreasonable

and inequitable basis in violation of 45 C.F.R. § 233.10(a)

(1) (ii).

40. The emergency assistance program violates the Iili.

nois Public Aid Code, III. Rev. Stat. ch. 23, § 12-8, which

establishes the Public Assistance Revolving Fund and re-

res that it shall be used, inter alia:

a. To provide immediate financial aid to applicants

in acute need who have been determined eligible for

aid under Articles III [Aid to the Aged, Blind or Dis-

— IV [AFDC] or V [Medical Assistance Pro-

gram].

b. To provide emergency aid to recipients under

said Articles who have failed to receive their grants

because of mail box or other thefts, or who are vie-

tims of a burnout, eviction, or other circumstances

causing privation, in which cases the delays incident

to the issuance of grants from appropriations would

cause hardship and suffering.

41. Approval of the emergency assistance program of

defendants Edelman and IDPA by the United States De-

partment of Health, Education and Welfare, evidencing

compliance with section 406(e) of the Act, 42 U.S.C.

§ 606(e) and regulations promulgated thereunder, includ-

ing 45 C. F. R. S8 233.10(a)(1)(ii) and 233.120 has not oe-

eurred. 42 U.S.C. Ss 602, 603(a)(5), 45 C. F. R. 58 201.2-

201.3, 205.5.

42. Defendant United States Department of Health, Ed-

ucation and Welfare continues to fund an emergency as-

sistance program which violates federal and state law as

— ee

alleged herein, in violation of sections 403(a)(5) and

406(e) of the Act, 42 U.S.C. 88 603(a)(5) and 606(e), and

45 C. F. R. § 233.120(b).

43. Unless the policies and procedures complained of

herein are enjoined by this court, plaintiffs and the mem-

bers of the plaintiff class will suffer irreparable injury.

44. Plaintiffs have no adequate administrative remedy

or remedy at law.

WHEREFORE, plaintiffs pray, individually and on

behalf of all others similarly situated, that this Court

1. Enter preliminary and permanent injunctions to re-

strain defendants from administering an emergency as-

sistance program which violates federal and state law.

2. Enter a declaratory judgment that defendants’ emer-

gency assistance program violates the Social Security Act,

§§ 402, 403(a)(5) and 406(e), 42 U.S.C. 88 602, 603 (a) (5)

and 606(e), and regulations promulgated thereunder, 45

(F. R. 58 201.2, 201.3, 205.5, 233.120, 233.10(a)(1)(ii) and

the Illinois Public Aid Code, III. Rev. Stat. ch. 23, § 12-8.

3. Allow plaintiffs their costs herein and grant such

further relief as may be just and appropriate.

1. This is an action for declaratory and injunctive re-

lief, authorized by the Civil Rights Act, 42 U.S.C. § 1983,

to secure rights established by the equal protection clause

of the Fourteenth Amendment, the supremacy clause of

Article 6, section 2 of the Constitution, the Social Secu-

rity Act, 42 U.S.C. 88 601 et seq., and the Illinois Public

Aid Code. Plaintiffs, individually and on behalf of all

others similarly situated, seek declaratory and injunctive

relief against defendants’ actions in administering an in-

adequate emergency assistance program.

2-44. Plaintiffs reallege and incorporate paragraphs

2-44 of Count I as and for paragraphs 2-44 of Count II.

45. The implementation of the emergency assistance

program by defendants creates two classes of AFDC re-

cipients, applicants for AFDC, and other families with

needy children: one composed of persons with emergency

need who will be able to obtain emergency assistance upon

a showing of emergency need within the categories enu-

merated in the emergency assistance plan; the other com-

posed of persons similarly situated whose emergency

needs are not within said categories and who will not be

able to obtain emergency assistance. Plaintiffs and mem-

bers of the plaintiff class unable to obtain emergency as-

sistance are being and will be subjected to arbitrary and

invidious discrimination without a rational relation to

a legitimate state interest, in violation of the equal pro-

tection clause of the Fourteenth Amendment.

46. Unless the policies and procedures complained of

herein are enjoined by this court, plaintiffs and members

of the plaintiff class will suffer irreparable injury.

47. Plaintiffs have no adequate administrative remedy

or remedy at law.

WHEREFORE, plaintiffs pray, individually and on be-

half of all others similarly situated, that this court

1. Enter preliminary and permanent injunctions against

implementation of the emergency assistance program in

violation of plaintiffs’ rights under the equal protection

clause of the Fourteenth Amendment.

2. Enter a declaratory judgment that defendants’ emer-

gency assistance program violates plaintiffs’ rights un-

der the equal protection clause of the Fourteenth Amend-

ment.

3. Allow plaintiffs their costs herein and grant such

further relief as may be just and appropriate.

Joan Humphrey

Stephen G. Seliger

Lorelei Borland

Michael F. Lefkow

James D. Weill

Legal Assistance Foundation of Chicago

4564 N. Broadway

Chicago, Illinois 60640

769-1015

EXHIBIT

EMERGENCY ASSISTANCE PROGRAM

6500 Provisions

The Emergency Assistance Program is a means of

meeting emergent needs of AFDC applicants deter-

mined eligible for a money payment and AFDC

recipients who receive regular monthly grants. (Mi-

grant workers with families are not eligible for this

Emergency Assistance Program.) Emergency As

sistance is available for a period not to exceed 30

consecutive days in any 12 consecutive months.

An ‘‘emergent need”’ exists when one of the follow-

ing crisis situations occurs:

1. The AFDC family is homeless (without shelter)

as a result of damage to the building rendering

it uninhabitable (example: fire, condemnation).

A court-ordered eviction occurs for reasons oth-

er than the recipient’s failure to pay rent.

3. The AFDC family is potentially homeless due to

damage to a portion of the building.

4. The AFDC applicant, determined presumptively

eligible for AFDC, is in emergent need of cloth-

ing and/or household furnishings and equipment.

(Emergent food and rent can also be authorized

by disbursing order at the time the applicant

is determined presumptively eligible as provided

in this paragraph. Any amount thus authorized

may not exceed the amount calculated as the

applicant’s first month's payment, and will be

deducted from the applicant’s first month’s pay-

ment. )

„% oe D

6510

6511

Verification by staff of the emergent need is re-

quired prior to authorization of Emergency Assist-

ance.

Financial Assistance Provided

Upon verification of emergent need, Form DPA

1164, Request for Emergency Assistance, will be

completed in triplicate and two copies forwarded to:

Bureau of Fiscal Management

Illinois Department of Public Aid

618 East Washington Street

Springfield, Illinois 62726

Upon proper completion of Form DPA 1164, an

emergency check will be issued by the Bureau of

Fiscal Management. One copy of Form DPA 1164

will be returned to the county department/district

office indicating the date and amount for which the

emergency check is authorized.

If a mailing address for the emergency check is

questionable, the check should be addressed to the

grantee in the care of the county department /district

office.

Assistance granted under this provision will not be

deducted from future assistance payments.

Homelessness

Emergency Assistance may be authorized to meet

emergent needs for food, clothing, household fur—

nishings, household equipment, rent and moving

expenses in amounts not to exceed those listed be-

low. The amounts are maximum allowances and the

payment authorized should be based upon verifiea-

tion of the family’s need for each individual item.

Food

If money is needed for the purchase of food, each

person in the assistance unit may be allowed

$1 per day, prorated to the next regular check

date.

Special Food Stamp Authorization Procedures.

AFDC families participating in the Food Stamp

Program who have suffered loss or destruction

of food stamps may have their previously issued

food stamps replaced (see Food Stamp Manual

topic 5300). Recipients who have suffered the loss

of Food Stamp Authorization Cards are to be

provided with a replacement card. Eligible fami-

lies not regularly participating in the Food Stamp

Program may be eligible for food stamps (see

Food Stamp Manual Chapter 9000).

Clothing, Household Furnishings, Household

Equipment

Size House- House-

Assist. hold hold

2 * 48 8 4 $ 11

3 72 121 14

4 0 121 14

5 120 166 16

6 144 166 16

7 168 212 18

Ss 192 212 18

Each

Additional!

Person a4 23 l

6512

6513

3. Shelter Costs (Based on groupings of counties

in Chapter 1000)

Group I Counties $117

Group II Counties 102

Group III Counties 72

4. Moving Costs

Cook County The IDPA Relocation Service will

be responsible for providing mov-

ing service and shall assume re

sponsibility for payment to all

vendors providing such service.

Relocation Service Section

Illinois Department of Public Aid

209 West Jackson Boulevard

Chicago, Illinois 60606

If a request for other emergent needs is being made,

a separate DPA 1164 will be completed according to

procedures described in topic 6510.

Downstate A maximum of $100 can be authorized

for moving costs.

Court-Ordered Eviction

Moving costs only may be authorized for emergent

needs resulting from a court-ordered eviction which

occurs for reasons other than the recipient's failure

to pay rent. The policy provided in topic 6511 per-

taining to moving costs is applicable.

Potential Homelessness

Emergency Assistance may be authorized to meet

emergent needs for food, clothing, household fur

nishings and household equipment. The policy pro-

vided in topic 6511 pertaining to the maximum al-

lowances for these items is applicable.

6514

6520

Emergent Need at Point of Initial Eligibility

Emergency Assistance may be authorized to meet

emergent needs for clothing, household furnishings

and household equipment for applicants determined

eligible for AFDC and who, at the point of applica-

tion, have an emergent need for these items. The

policy provided in topic 6511 pertaining to the max-

imum allowances is applicable.

Medical Care Expenses

Medical assistance to AFDC families will be pro-

vided in accordance with the approved Illinois Title

XIX Medical Assistance Plan (see Manual Chapter

5000 for procedures regarding the replacement of

the Medical ID Card). Funeral and burial expenses

will be met under the provision of existing policy

(see Manual Chapter 6150).

Social Services

All social services provided by the Department will

be available to AFDC families requiring Emergeney

Assistance by initiating an immediate referral to

the Social Services Unit. Services available to the

recipient will include, but are not limited to, infor-

mation, referral counseling, and services to assist

the recipient in securing family shelter.

United States Court of Appeals for the

Seventh Circuit

Nos. 75-1083, 75-1245

Vexvs MANDLEY FT ., PLAINTIFFS-APPELLANTS

James L. Trainor Kr AL., DEFENDANTS-APPELLEES

Argued June 6, 1975 — Decided Sept. 25, 1975

Before Mooxre,* Senior Circuit Judge, CumMines

and Baver, Cireuit Judges.

Cum™ines, Circuit Judge.

This class action was brought by Illinois recipients of

the Aid to Families with Dependent Children (AFDC)

program and the Illinois and Chicago Welfare Rights Or-

ganizations against the Illinois Department of Publie Aid

(the Department), its director and the United States De-

partment of Health, Education and Welfare (HEW). Plain-

tiffs alleged that the Department’s revised program for

emergency assistance to AFDC recipients violated See-

tion 406(e) of the Social Security Act (42 U.S.C. § 606(e)),

regulations promulgated thereunder by HEW, the Equal

Protection Clause of the Fourteenth Amendment, and the

Illinois Public Aid Code (III. Rev. Stats. ch. 23. § 12-8

(1973)). Plaintiffs sought declaratory and injunctive re-

lief against the implementation and operation of the pro-

gram and an injunction requiring expedited processing

and delivery of emergency assistance to those eligible to

receive it.

*Senior Circuit Judge Leonard Page Moore of the Sec-

ond Circuit is sitting by designation.

After a bench trial, the district court rendered a deci-

sion holding that the Illinois program for emergency as-

sistance conforms to the requirements of federal and state

law, except that the processing was too slow. Jurisdiction

was refused with respect to the pendent state claim that

the Illinois program violates the [linois Public Aid Code.

However, the State defendants were ordered to show cause

with respect to expediting emergency assistance.

In its second memorandum opinion, the district court

ordered the State defendants to show cause why emergency

assistance checks could not be written in Chicago or in

a district office other than Springfield, Illinois, or why

some other method of payment could not be devised to

eliminate delays from unnecessary Springfield mailings.

The district court’s final decision was entered on March

14, 1975. This order specified the steps to be taken by the

Department to speed up the delivery of assistance in Cook

County. However, in practical effect the order did not re-

quire the State defendants to furni: h emergency assistance

in the 101 other Illinois counties by any means other than

mailing from Springfield.

Plaintiffs appealed from the original and final orders

of the district court insofar as they denied plaintiffs the

requested relief. We find the Illinois emergency assistance

scheme to be in conflict with the Social Security Act and

therefore invalid by virtue of the Supremacy Clause of the

Constitution. Accordingly, we reverse that portion of the

district court’s order that is to the contrary.’

‘Such reversal was also sought by various charities that

filed a brief amici curiae.

In 1935, Congress enacted the AFDC program as Title

IVA of the Social Security Act. Provision for the eco-

nomic security of children was made by offering substan-

tial federal funds to states submitting plans complying

with the Act and HEW regulations. In 1968, Congress

enacted an emergency assistance program to enable states

to meet the immediate needs of children. The present dis-

pute concerns the mandatory scope of the program under

the federal statute once a state decides to include emer-

gency assistance in its plan.

The key provision of the Social Security Act with re-

spect to emergency assistance to needy children is con-

tained in 42 U.S.C. 8 606(e) (Section 406(e) of the Act)

which provides :

(1) The term ‘‘emergency assistance to needy fam-

ilies with children“ means any of the following, fur-

nished for a period not in excess of 30 days in any

12-month period, in the case of a needy child under

the age of 21 who is (or, within such period as may

be specified by the Secretary, has been) living with

any of the relatives specified in subsection (a)(1) of

this section in a place of residence maintained by one

or more of such relatives as his or their own home,

but only where such child is without available re-

sources, the payments, care, or services involved are

necessary to avoid destitution of such child or to pro-

vide living arrangements in a home for such child, and

such destitution or need for living arrangements did

not arise because such child or relative refused with-

out good cause to accept employment or training for

employment —

(A) money payments, payments in kind, or such

other payments as the State agency may specify

with respect to, or medical care or any other type

of remedial care recognized under State law on be-

half of, such child or any other member of the house-

hold in which he is living, and

(B) such services as may be specified by the Sec-

retary ;

but only with respect to a State whose State plan

approved under section 602 of this title [section 402

of the Act] includes provision for such assistance.

(2) Emergency assistance as authorized under par-

agraph (1) may be provided under the conditions spec-

ified in such paragraph to migrant workers with fami-

lies in the State or in such part or parts thereof as

the State shall designate.

In summary, this statute authorizes emergency assistance

to a needy child under 21, living with relatives specified

in 42 U.S.C. § 606 (a), who is without available resources,

if the assistance is necessary to avoid destitution or to

provide living arrangements in a home, and if the need

did not arise because such child or relatives refused with-

out good cause to accept training or employment.

Under the March 1971 Illinois emergency assistance

plan, its first election of the reimbursement of provisions

in 42 U.S.C. 8 606 (e), eligibility was limited to AFDC

recipients and confined to the following needs:

§6510 EMERGENCY ASSISTANCE PROVI-

SIONS: ACTIVE AFDC ONLY

(a) Paying delinquent rent or property payments

allowed in lieu of rent to prevent eviction;

(b) Paying delinquent utilities bills to restore dis-

continued service; and

items of basic need included in the Standards of As-

sistance.

Moving costs were later added, and needy families not

eligible for AFDC were excluded unless their needs re-

sulted from civil disorders.

Subsequently HEW suggested that Illinois should be

more specific in the listing of the emergencies it did com-

pensate. Therefore, on October 1, 1973, the Department

revised its program and limited assistance to situations

where an ‘‘emergent need“ existed. The payments were

still restricted to those eligible for AFDC and further

restricted by the definition of ‘‘emergent need’’:

An emergent need“ exists when one of the follow-

ing crisis situations occurs:

1. The AFDC family is homeless (without shel-

ter) as a result of damage to the building render-

ing it uninhabitable (example: fire, condemnation).

2. A court-ordered eviction occurs for reasons

other than the recipient’s failure to pay rent.

3. The AFDC family is potentially homeless due

to damage to a portion of the building.

4. The AFDC applicant, determined presump-

tively eligible for AFDC, is in emergent need of

clothing and/or household furnishings and equip-

ment.

(Ch. 6500 of the Categorical Assistance Manual of the

Department.)

Since the eligibility provisions were severely restricted in

the October 1973 revisions in the program, the Department

has provided only about one-fifth of the total dollar aid

provided to needly families under the prior program.

Plaintiffs challenge the Illinois program for adminis-

tering reimbursable emergency assistance under 45 U.S.C

§ 606(e), Section 406(e) of the Social Security Act, as in-

valid for both constitutional and non-constitutional reasons.

In accord with the time-honored practice of avoiding con-

stitutional questions where a non-constitutional ground

exists for resolving the case, this Court deals first with

plaintiffs’ statutory argument.’

*Plaintiffs plead federal question jurisdiction, which re-

quires that more than $10,000 exclusive of interest and

costs be in controversy. 28 U.S.C. § 1331. The complaint

asserts that such an amount is in controversy and defend-

ants do not complain that jurisdiction has been improp-

erly exercised by the district court. This Court must as-

sure itself that the district court had jurisdiction, regard-

less of the positions taken by the parties, because federal

courts are courts of limited jurisdiction.

Assuming without deciding that the plaintiffs cannot

properly show $10,900 as to each member of the class be-

cause of the 30-day per year restriction on emergency

(Baxter v. Minter, 378 F. Supp. 1213, 1216-1217 (D. Mass.

1974), there is no § 1331 jurisdiction. See generally Note,

Federal Judicial Review of State Welfare Practices, 67

Colum.L.Rev. 84 (1967). Since plaintiffs here allege Civil

Rights Act jurisdiction through 42 U.S.C. § 1983 and 28

U.S.C. § 1343, and since the claim is not insubstantial, the

statutory claims against the state defendants, at least, may

be taken pendently. See Philbrook v. Glodgett, 421 U.S.

707, 95 S. Ct. 1893, 44 J. Ed. 24 525. Jurisdiction over the

federal defendant is unavailable under the Civil Riguts

Act, so that the assertion of pendent jurisdiction over it is

a complex and difficult jurisdictional question. See Phil-

brook, supra, at 720-722, 95 S. Ct. 1893.

However, since the plaintiffs also allege jurisdiction un-

der 28 U.S.C. § 1361, and since this Court concludes infra

that Section 606(e¢) does set forth mandatory eligibility

standards in the absence of clear intent to the contrary in

the federal statute or its history, mandamus jurisdiction

will lie with respect to the federal defendant. Thus this

Court need not reach the difficult pendent jurisdictional

question. In holding Section 1361 applicable here, we are

VALIDITY OF ILLINOIS EMERGENCY

ASSISTANCE PLAN

Plaintiffs first argue that defendants’ program unlaw-

fully excludes persons made eligible by the emergency as-

sistance provisions of the Social Seeurity Act. Plaintiffs

claim that the Illinois program has unlawfully established

eligibility standards narrower than those in 42 U.S.C.

§ 606(e) because that program provides assistance only

to persons whose emergency needs fall within four lim-

ited types of crisis situations and provides no emergency

assistance for families wlio are not applicants for or re-

cipients of AFDC. Thus needy families who are in dan-

ger of destitution within the meaning of 42 U.S.C. 8 606(e),

but who are not otherwise eligible for AFDC or whose

destitution came about in a manner not enumerated in

Chapter 6500 of the Department’s Manual, are denied emer-

gency assistance. Plaintiffs rely especially on Carleson v.

Remillard, 406 U.S. 598, 92 S. Ct. 1932, 32 L. Ed. 2d 352;

Townsend v. Swank, 404 U.S. 282 92 S. Ct. 502, 30 L. Ed.

2d 448; Lewis v. Martin, 397 U.S. 552, 90 S. Ct. 1282, 25

L. Ed. 2d 561; and King v. Smith, 5% U.S. 309, 88 S. Ct.

mindful of the criteria set out in City of Highland Park

v. Train, 519 F. 2d 681 at 691 (7th Cir. 1975, and modified

July 24, 1975), for exercising mandamus jurisdiction. These

criteria are satisfied in this case.

Since HEW would be practically bound by our decision,

even if it were technically handed down only with respect

to the state defendants, we assume that HE W would move

to intervene on remand even if we had dismissed it in this

Court. See Philbrook, supra, at 720-722, 95 S. Ct. 1893.

2128, 20 L. Ed. 2d 1118. Those cases establish that a state

program which restricts eligibility beyond what was in-

tended by Congress is invalid for inconsistency with the

Social Security Act. In Townsend, the Illinois defendants

and HEW asserted that Congress authorized -the states

to vary eligibility requirements from federal standards.

However, the Court held that once a state elected to ex-

tend benefits to 18-20 year-olds, it was required to include

all those made eligible by 42 U.S.C. § 606(a)(2)(B), in-

eluding college students. The other cases cited supra are

similar. Each case involves a state’s attempt to draw

AFDC eligibility criteria more narrowly than the eligi-

bility criteria set out in the Social Security Act and each

attempt was rejected as invalid as contrary to the intent

of Congress.

Section 406(e) of the Act extends coverage for emer-

gency service to a family with a needy child under 21

living with any of the relatives specified in Section 406(a)

(1), in a place of residence maintained by one or more

of such relatives as his or their own home. However, Con-

gress limited the reimbursement for emergency assistance

for such a needy family to situations where the child is

without available resources and assistance and the assist-

ance is necessary to avoid destitution or to provide a liv-

ing place in a home for such child, provided such des-

titution or need for living arrangements did not arise

See also Van Lare v. Hurley, 421 U.S. 338, 95 S. Ct. 1741,

44 L. Ed. 2d 208; Philbrook v. Glodgett, 421 U.S. 707, 95

S. Ct. 1893, 44 L. Ed. 2d 525; Burns v. Alcala, 420 U.S.575,

95 S. Ct. 1180, 43 L. Ed. 2d 469; and Lascaris v. Shirley,

420 U.S. 730, 95 S. Ct. 1190, 43 L. Ed. 2d 583.

because such child or relative refused without good cause

to accept employment or training for employment.“ In

our view, all children who fall within this definition are

made eligible for emergency assistance.

Section 406(e) specifically permits two areas of state

diseretion. Thus the state is permitted to furnish emer-

gency assistance in the form of ‘‘money payments, pay-

ments in kind, or such other payments as the State agency

may specify.’’ Also, Congress provided that a state may

provide emergency aid to migrant farm workers (presum-

ably despite residency requirements in the state plans),

and may select parts of the state in which to provide

emergency assistance to migrant workers (presumably

despite the mandate in 42 U.S.C. § 602 (a) (1) that elected

programs must be administered statewide).

The state defendants and, to a lesser degree, the fed-

eral defendant insist that the language of 42 U.S.C.

§ 606(e)(1) does not establish standerds of eligibility at

all, but merely defines the maximum limits of reimburs-

able emergency assistance. Thus in their view Section

606(e)(1) deseribes what is provided, rather than who is

covered. We reject this semantical argument. Similar ar-

guments could have been made in King, Townsend and

Carleson as to the eligibility provisions of the Social

Security Act discussed there; vet the Supreme Court

viewed the provisions as relating to eligibility. The pro-

visions in Section 606(e)(1) discussed supra describe

eligibility criteria for the emergency aid program. Thus

the central issue in this case becomes whether Congress

intended to allow the states to apply eligibility criteria

that are narrower than those set out in Section 606 (e) (1).

If, as plaintiffs argue, Congress intended that any state

which elected to participate in the emergency aid reim-

bursement program must provide aid to all those eligible

under the provisions of Section 606(e)(1), the IIlinois

program is invalid since it more narrowly restricts the

availability of emergency assistance. See the quotation

from the Department’s Categorical Assistance Manual,

Ch. 6500, supra at 5, and the surrounding discussion. If,

however, Congress intended to allow the states to adopt

their own eligibility requirements, Illinois’ program does

not conflict with Section 606(e). Our task is to interpret

the intent of Congress. In attempting to discern that in-

tent, this Court is mindful that no special presumptions in

favor of coverage are to be applied in interpreting pro-

visions of the Social Security Act and that the normal tools

of legislative interpretation are to be employed. Burns

v. Alcala, 420 U.S. 575, 578, 95 8. Ct. 1180, 43 L. Ed. 2d 469.

As is often the case, the legislative history of 42 U.S.C.

§ 606(e) contains little information helpful as to Con-

gressional intent on the crucial issue here. See Senate

Report No. 744, 90th Cong., Ist Sess., 2 U.S. Code, Con-

gressional & Admin. News, 2834, 3002-3004 (1967). Both

sides in this case point to various portions of the legisla-

tive history for support of their positions, but nothing

cited is conclusive.

We deem it wortiwhile to note that it is clear from the

Senate Report on the bill that Congress intended that

families who were not eligible for AFDC should be eli-

gible, as far as the federal Government was concerned, for

emergency aid under Section 606(e). Idem at 3003. While

this does not answer the question whether Congress in-

tended the states to have the right to narrow the eligi-

bility under Section 606(e¢), it does indicate that Congress

was concerned about a broader group of needy children

than Illinois’ program covers. Moreover, it appears that

Congress was concerned with needy children who were

approaching destitution from a variety of causes other

than those recognized by Illinois. Thus the Senate Report

states:

The committee understands that the process of de-

termining AFDC eligibility and authorizing payments

frequently precludes the meeting of emergency needs

when a crisis occurs. In the event of eviction or when

utilities are turned off, or when an alcohole parent

leaves children without food, immediate action is nec-

essary. It frequently is unavailable under State pro-

grams today. When a child is suddenly deprived of

his parents by their accidental death or when the

agency finds that conditions at home are contrary to

the child’s welfare, new arrangements and court re-

ferrals may have to be made. (Idem at 3002.)

While the legislative history is not conclusive of Congress’

intent, it does show that there is no specific indication

that Congress intended the states to be able to narrow

the eligibility criteria, that Congress was much concerned

with the emergency needs of all children approaching

destitution, whether or not they were AFDC eligible, and

that Congress considered that there was need for aid to

needy children who approached destitution due to rea-

sons other than those recognized in the Illinois program.

We also, note that the general tenor of the legislative his-

tory shows great concern for those families with children

who are in need of emergency aid.

Defendants rely on the HEW regulation that interprets

Section 406(e) of the Act to allow the states to set the

criteria for eligibility, 45 C.F.R. § 233.1200 (1974). De-

fendants claim that this interpretation of the agency

charged with administering the program is entitled to

great weight, especially in the absence of a clear legis-

lative intent in the provision’s history. See New York

Department of Social Services v. Dublino, 413 U.S. 405,

421, 93 8. Ct. 2507, 37 JL. Ed. 2d 688; Udall v. Talman, 380

U.S. 1, 16, 85 S. Ct. 792, 13 L. Ed. 2d 616. However, an-

other regulation promulgated by HEW after the Town-

Send decision is also relevant. 45 C. F. R. § 233.10(a) (1) (ii)

applies to the chapter of the Act containing Section 406(e)

and provides in part:

(ii) A State may:

(A) Provide more limited public assistance cover.

age than that provided by the Act only whre the So-

cial Security Act or its legislative history authorizes

more limited coverage; [italies added).

As has been seen, there is no clear indication in the leg-

islation or its history indicating that Congress intended to

allow the states to construct narrower eligibility require-

ments than those in the statute. Thus it is difficult to per

eive the justification for HEW promulgation of 45 C. F. ER.

§ 233.120. This would not be the first time that HEW has

Sought discretion for the states that the courts have held

Was not intended by Congress to be given to them. In light

of these factors we do not feel it proper to rely heavily

On the administrative interpretation of Section 406(e).

See also Application of Bryant v. Lavine, 79 Mise. 2d 425.

359 N. V. S. 2d 492 (Sup. Ct. 1974); Application of Preston

v. Barbaro, 61 Mise. 2d 327, 305 N.Y.S. 2d 627 (Sup. Gt.

1969).

The Government notes that the Carleson, Townsend.

Burns and King eases, supra, relied on 42 U.S.C. 8 602

(a)(10) which provides that ‘‘aid to families with depend

ent children shall be furnished with reasonable prompt.

ness to all eligible individuals.“ Then the Government eon

tends that this provision does not apply to 42 U.S.C.

§ 606(e) because dependent child“ is not used therein.

We believe that Sections 602(a) and 606(e) cannot be so

neatly and completely severed. Section 602 sets forth what

state plans must provide in order to qualify for federal

reimbursement. It also contains the hearing provisions

(§ 602(a)(4)), the reasonable promptuess’’ provisions

(see Adens v. Sailer, 312 F. Supp. 923, 926 (E. D. Pa. 1970)),

the state reporting provisions (§ 602(a)(6)), and others

that must apply to Section €06(e) in any reasonable in-

terpretation of the entire Act. It also appears that when

Congress wished to make an exception to the generally

applicable provisions of Section 602(a), it was able to do

so clearly. Thus in Section 606(¢)(2) Congress expressly

noted that emergency assistance to migrate workers need

not be statewide. This seems an apparent exception to See-

tion 602(a)(1), requiring a state plan to be in effect in

all political subdivisions of the state. The glose relation-

ship between Sections 602(a) and te) lead» us 0

believe that Congress intended that Section 606(e) be

treated in the same way as Section 606(a), which also is

closely related to Section 602, despite the inclusion in

Seption 602(a)(10) of the phrase families with depend-

ent children.’’ The Supreme Court cases listed earlier in

the opinion hold that Congress intended the eligibility re-

quirements of Section 606(a) to be mandatory on the

states. See, . g., Burns, supra, 420 U.S. at 578, 9 8. Ct.

1180; Carleson, supra; Townsend, supra. It therefore

appears that Congress intended that the eligibility pro-

visions of Section 606(e) be mandatory on the states, just

as the courts have held with respect to the eligibility re.

quirements of Section 606(a).

In summary, Section 606(e) is part of the same statu-

tory scheme as Sections 606(a) and 602. The same Con

gressional concern with deprivation of children that

brought forth the AFDC program was at the root of the

emergency assistance program as well. Since the legisla-

tive history of the latter program demonstrates continu-

ing Congressional concern with the nation’s poor children

and contains no indication that its eligibility provisions

are to be more in siate control than its closely related

sister program, we must follow the number of Supreme

Court eases that have held that the eligibility provisions

of the federal program cannot be narrowed by the states.

Illinois, should it elect to continue to provide an emer-

gency assistance program in the future, will still have

substantial control of its program. It will be able to choose

the level of benefits that it will provide and to set the

standard of need. It may reasonably limit the amounts

paid out in emergency assistance, Dandridge v. Williams,

397 U.S. 471, 90 S. Ct. 1153, 25 I. Ed. 2d 491, bat it will

not be able to declare ineligible those who come within the

federal definition of eligibility in Section 606(e). This Court

need not establish the exact meaning of the eligibility pro-

visions of Section 606(e) because this case requires only

that the validity of the specific Illinois program be deter-

mined. The problem of setting workable definitions for the

somewhat amorphous eligibility criteria in Section 606(¢)

may be addressed by HEW rule-making.’ Such rule-making

‘Plaintiffs amended the conclusion of their main brief to

request restitution for one of the named plaintiffs, Frances

Gallman, who was allegedly eligible under the federal eri-

teria when she was robbed of her monthly aid funds. Since

we do not here decide the exact content of the emergency

assistance program, but only hold that Illinois“ present

regulations are invalid, it would be inappropriate for us

to deeide whether Gallman was indeed eligible, particularly

since HEW has not had an opportunity to make rules aid.

ing the states and the courts in discerning the specifie rules

as to who is eligible. Accordingly, we decline to consider

Gallman’s request for restitution on this appeal.

should aid the states in preparing programs that are in

accord with the eligibility criteria set by Congress. Illinois

may no longer conduct an emergency assistance program

under Section 606(e) in which some of the families with

needy children described in Section 606(e) are given aid

and some are not. Because Illinois has accepted federal

funds to operate an emergency assistance program, it is

bound by the eligibility provisions of 42 U.S.C. § 606(e).

This need not result in additional expense to the state, but

with existing appropriations should at least result in help-

ing a broader number of persons, although more moder-

ately than at present.

Since we hold that the Illinois emergency assistance

program defines eligibility more narrowly than 42 U.S.C

§ 606(e) and therefore is in violation of the Social Seeu-

rity Act, we need not consider whether the program vio-

lates the Equal Protection Clause of the Fourteenth

Amendment or the Illinois Public Aid Code.

MAILING OF EMERGENCY ASSISTANCE

CHECKS OUTSIDE COOK COUNTY

As noted, Section 402(a)(10) of the Act requires aid

to be furnished with reasonable promptness.’’ Section

406(e) itself prescribes no time for delivery of emergeney

assistance, but a regulation of HEW requires that a state

plan provide that ‘‘emergency assistance will be given

forthwith. 45 C.F.R. § 233.120(2)(5). This accords with

the Senate Report on the 1967 amendments showing that

immediate action is necessary’’ to alleviate an imme-

diate need’’ for emergency assistance. Sen. Rep. No. 744,

90th Cong., Ist Sess., 2 U.S. Code Cong. & Admin. News

at 3002 (1967).

Plaintiffs have not satisfied us that Judge McMillen was

wrong in stating in his March 14, 1975, order that Up to

this date there has been no evidence of delays outside of

Cook County * . I, on remand, plaintiffs can show

that payments are not delivered ‘‘forthwith’’ in the down-

state Illinois counties, the district court should require the

state defendants to adopt other methods (such as dis-

bursing orders or preposition checks) to avoid unnec s- ©

sary delays in alleviating destitution. See Purnell v. Edel-

man, 511 F. 2d 1248 (7th Cir. 1974); Adens v. Sailer, 312

F. Supp. 923 (E.D. Pa. 1970). However, if downstate

payments are quickly processed and received by mail one

or two days afterwards, judicial intervention will be un-

necessary.

In closing, we are not satisfied that the district court’s

order of March 14, 1975, failed to provide plaintiffs with

adequate relief with respect to the ‘‘forthwith’’ require-

ment. On remand, that court will surely retain continuing

jurisdiction or otherwise afford plaintiffs further relief

if they can show the necessity therefor.

The order of March 14, 1975, is affirmed. The order of

November 21, 1974, is reversed insofar as it sustained the

validity of the Illinois program for emergency assistance.

Costs of this appeal are awarded to plaintiffs.

Since the court ordered the same delivery procedures

for the downstate counties as for Cook County, we can-

not agree that the court discriminated in favor of Cook

County in violation of Section 402(a)(1) of the Act and

45 C.F.R. § 250.120(a).

IN THE :

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

[Caption omitted in printing.]

FINAL JUDGMENT AND DECREE

This mptter comes on for entry of a final judgment and

decree pursuant to prior decisions of this court and pur-

suant to the mandate of the Court of Appeals reversing

in part and affirming in part the orders of this court to

and including this court’s order of March 14, 1975. The

court being fully advised finds and concludes as follows:

FINDINGS OF FACT

1. Except as modified herein, the factual findings of this

court’s memorandum decisions of November 21, 1974,

February 5, March 14, August 1, and October 24, 1975

are incorporated herein as part of this final judgment.

2. The class of plaintiffs is composed of all (1) Aid to

Families with Dependent Children rpc) recipients,

(2) applicants for AFDC and (3) other families with

needy children, in Illinois who are eligible for emergency

assistance within the eligibility standard of §406(e) of

the Social Security Act (the Act), 42 U.S.C. 8 606(e), as

set out in paragraph 9 (p. 5) below.

3. Plaintiff Frances Gallman and her family met the

eligibility standard of §406(e) at the time of their ap-

plication in November, 1973, to defendant Illinois Depart-

ment of Public Aid (IDPA) for emergency assistance.

4. Defendants IDPA and its directors, Edelman and

Trainor, have denied and continue to deny emergeney as-

sistance to plaintiff Gallman and to members of the plain-

tiff class who meet the eligibility standard of § 406(e) but

whose emergency need arises from circumstances other

than those described in defendants’ regulations, IDPA

Categorical! Assistance Manual, Ch. 6500, since renumbered

as Ch. PO 610.5.

5. The state defendants have reported to this court the

length of time taken to process requests for emergency

assistance, these reports having been made pursuant to

the court’s order of March 14, 1975. There the court re-

quired defendants to speed up the processing of emer-

gency assistance requests from the not uncommon'' 7-10

days found by the court in its order of Nevember 21, 1973,

: , Cook Downstate

so that emergency assistance requests will normally be Mail 60 74

py oa * within 24 hours. These reports show and I find — Order 16 0

f Pick-up at Fisc. Mgmt. 42 we

a. For requests for emergency assistance granted dur- C.D. 0 12

ing the two reporting periods, May 8—June 9, 1975 om 2

and August I-27, 1975, the periods of time taken 118 95

for processing requests up to the time a check was

ready to be placed in the mail or for pickup was

more than one day in 88.8% (103 of 116) of cases

in Cook County and in 71.6% (68 of 95) of cases

c. The amount of time from the date a check was

ready for delivery by mail until receipt by the

client during the two reporting periods was as

in downstate counties: follows :

Cook % Downstate % 5 Cook Downstate

Same day or 1 day 13 11 oe ° + * *

2-3 days 22 18.6 26 27.4 —— -

4-6 days 40 33.9 21 22.1 es -

7-10 days 16 13.6 13 13.7 * acta * ; g

11-15 days 17 14.4 7 74 . :

16-25 days 7 5.9 1 11 Not ascertained 20 29

26 or more days 1 8 0 0 ae —

Not ascertained 2 1.7 0 0

— — 5 — Therefore, of those known, checks were delivered one or

118 99.9 95 100.1 two days after mailing in 97.5 percent of cases in Cook

b. For requests for emergency assistance granted dur- and 88.9 percent downstate.

ing the two reporting periods (May June 9 and d. The reports demonstrate and the court finds that

August 1-27, 1975) four methods of delivery of great and excessive delays continue to exist in

emergency assistance checks were used: mail, pick the processing of emergency assistance checks, so

up by client at fiscal management office, disburs- that only a small percentage of checks are proe-

ing order at local office and by C. D.“ (unex- essed within 24 hours and delivered to the client

plained), as follows: within one or two days thereafter.

6. Since the mandate of the Court of Appeals was re-

turned to this court, the state defendants have reported

that they plan imminently to withdraw from the emergency

assistance program authorized by section 406(e) of the

Act and have further reported that they plan to provide

the same limited emergency assistance available under

their program which was challenged and found unlawful

in this lawsuit. In so doing, defendants intend to claim

federal funds for this emergency assistance program un-

der §§ 402 and 403(a)(1) (regular AFDC funds) of the

Act.

7. The state defendants have not submitted to Defend-

ant United States Department of Health, Education and

Welfare an amendment to their state plan under Title

IV-A of the Act, as required by 45 C F. R. 58 201.3 and

205.5, setting out the proposed changes stated in Para-

graph 6 above, nor have they received approval of such

changes from Defendant H. E. W.

CONCLUSIONS OF LAW

8. As defined in paragraph 2 above, this is a proper

class action under Rule 23 of the Federal Rules of Civil

Procedure.

9. The state defendants have violated and continue to

violate § 406(e) of the Act in denying emergency assist-

ance to plaintiff Frances Gallman and members of the

class who are eligible for emergency assistance as de-

fined in § 406(e), to wit: families with a needy child (i)

under the age of 21, (ii) who is living with any of the

relatives specified in §406(a)(1) of the Act in a place

of residence maintained by such relative as a home, (iii)

where such child is without available resources, (iv) where

emergency assistance is necessary to avoid destitution

of or to provide living arrangements in a home for such

child, and (v) where such destitution or need for living

arrangements did not arise because such child or relative

refused without good cause to accept employment or train-

ing for emplormeit.

10. Because defendants’ emergency assistance program,

Categorical Assistance Manual Ch. 6500 (PO 610.5), lim-

its eligibility more narrowly than §406(e) permits, its

enforcement and operation are unlawful.

11. Congress, in 88 406(e) and 403(a)(5) of the Act.

has determined the terms of eligibility and funding for

an emergency assistance program. The state defendants’

effort to avoid the eligibility standards of § 406(e) by

claiming funding for emergency assistance from funds

available for AFDC or for any other federally funded

program is contrary to the clear intent of the Act and a

violation of § 406(e)(1). N

12. Defendant United States Department of Health,

Education and Welfare has violated 88 406(e) and 402(b)

of the Act. 42 U.S.C. 88 606(c) and 602(b), and its own

regulations, 45 C. F. R. §233.10(a)(1)(ii)(A), in approv-

ing and funding Illinois“ emergency assistance plan which

denies such assistance to members of the plaintiff class

made eligible by § 406(e).

13. Defendant I. E. W., furthermore, may not approve

or fund a state’s emergency assistance program, whether

designated as a special need’’ or otherwise, except as

authorized by § 406(e).

14. The state defendants have violated and continue

to violate § 406(c) of the Act and regulations promulgated

thereunder, 45 C. F. R. 5 233.120(a)(5), which require that

emergency assistance be given forthwith, by causing. and

failing to correct after this court’s order of November

21, 1974, serious delays in providing emergency assist-

ance to members of the plaintiff class.

IT IS THEREFORE ORDERED AND DECREED, as

follows:

A. Defendants, the Illinois Department of Publie Aid,

Joel Edelman and James L. Trainor, their successors in

office, agents, employees and assigns are enjoined, so long

as Illinois receives federal funding under Title IV-A of

the Social Security Act, from claiming reimbursement for

emergency assistance (however designated) under any

other section of the Act than §§ 406(e) and 403(a)(5) and

are enjoined from using any other means of limiting eli-

gibility for emergency Xssistance more narrowly than the

provisions of §406(e), and are further enjoined from

denying emergency assistance to plaintiff Frances Gall-

man and to any member of the plaintiff class with a needy

child

(i) who is under the age of 21,

(ii) who is living with any of the relatives specified

in 8 406 (a) (1) of the Act in a place of resi-

dence maintained by such relative as a home,

(iii) where such child is without available resources,

(iv) where emergency assistance is necessary to

avoid destitution of or to provide living ar-

rangements in a home for such child, and

(v) such destitution did not arise because such child

or relative refused without good cause to ac-

cept employment or training for employment.

In furtherance of this injunction these defendants are

specifically directed to do the following:

1. Within 7 days from entry of this order, defendants

shall file with the court and with defendant H. E. W. amend-

ments to its AFDC Categorical Assistance Manual (and

to forms and other necessary instructions to staff) con-

sistent with the terms of this order. These amendments

shall

(a) Set forth the availability of emergency assistance

to families with a needy child in the terms set out in (i)—(v)

above.

(b) Specify that non-AFDC eligible children are e'i-

gible for emergency assistance if they meet the eligibil-

ity standards of (i)-(v) above. ;

(p. 10) below, establish a definition of the terms ‘‘lack

of available resources“ and ‘‘necessary to avoid desti-

tution’’ which are compatible with providing emergency

assistance when a needy child is approaching destitution.

(d) Establish amounts of assistance, forms of payment

and types of services to be provided.

(e) Set forth examples of common forms of destitution

to be avoided by provision of emergency assistance, in-

eluding, but not limited to imminent eviction, imminent

termination of utilities, and lack of food, basic cloth-

ing and household furnishings.

(f) Set forth examples of common causes of such des-

titution, including but not limited to fire and other dis-

aster causing homelessness or damage to personal pos-

sessions, eviction, theft, abandonment by a parent, delays

in awaiting normal processing of AFDC applications,

failure to receive AFDC assistance due to administrative

error and failure to receive other forms of income.

2. Defendants’ submission pursuant to paragraph A.!

(p. 8) herein shall not define eligibility more narrowly

than § 406(e) of the Act and shall be equitable as required

by 45 C.F.R § 233.10(a) (1) (ii).

3. Defendants shall review within 30 days from entry

of this order the IDPA hearing decision, No. 73-4155, of

March 18, 1974, denying emergency assistance to plaintiff

Frances Gallman in the circumstances alleged in this

complaint, and shall enter a new decision in compliance

with the Court of Appeals decision and this order. Such

decision shall be promptly filed with this court and de-

fendants shall report all further action including pay-

ment made with respect to her administrative appeal.

4. In order to assist the parties and this court with

further proceedings for compliance the state defendants

shall, within 30 days of the entry of this order, com-

mence to register all requests by needy families with chil-

dren for emergency aid, categorizing such requests by

a) type of need, b) cause of need, e) department response,

and d) reasons for denial if denial of the requé8t occurs,

and shall submit to this court monthly until further order

of court the information obtained from such registry.

5. Plaintiffs shall have 7 days after submission of the

materials required in paragraphs A.1-4 herein in which

to file comments or objections.

B. Defendant U.S. Department of Health, Education

and Welfare is hereby enjoined from approving state

plans for emergency assistance which limit eligibility more

narrowly than 5 406 (e) of the Act or funding an emer-

gency assistance program (however designated) under

any provision of the Act other than §§406(e) and 403

(a)(5). In furtherance of this injunction, H.E.W. is spe-

cifically ordered as follows:

1. Within 60 days from entry of this order, it shall

file with the court proposed regulations governing emer-

gency assistance, which proposed regulations shall be in

accord with the opinion of the Court of Appeals, with this

order and with 45 C. F. R. § 233.10(a)(1)(ii)(A), and shall

include, inter alia, definitions of such terms as ‘‘neces-

sary to avoid destitution’’ and lack of available re

sources which are compatible with providing emergency

assistance when a needy child is approaching destitution.

(a) Plaintiffs shall have 15 days after submission of

the proposed regulations in which to comment.

(b) Upon approval by this court and completion of

procedures required by law for promulgation of regula

tions, defendant II. K. W. shall publish the regulations in

the Federal Register and (ode of Federal Regulations.

2. Within 90 days after submission of Illinois“ plan for

emergency assistance pursuant to Paragraph A (pp. 7-9)

above, H.E.W. shall notify the court and the parties of its

action in approving or disapproving the amended plan

in accordance with standards set by the Act, this order

and the decision of the Court of Appeals.

C. Defendants Illinois Department of Public Aid, Joe!

Edelman and James L. Trainor, their successors in office,

employees, agents and assigns are enjoined from failing

to ensure that emergency assistance grants are given

forthwith to members of the plaintiff class, and are spe-

cifically directed in furtherance of this injunction to mod.

ify their procedures to provide as follows:

1. Caseworkers and necessary supervisory and other

staff shall give preference to requests for emergency as

sistance over all other work assignments. Within 24 hours

of a request staff shall verify need, determine eligibil-

ity and follow all necessary procedures to secure issu-

ance of the emergency assistance payment, whether by

disbursing order or check. This time period may not be

extended except —

(a) for the time attributable to delay caused by an

applicant’s failure to provide essential infor-

mation within his or her understanding and

immediate control, or

(b) 8 signed by the applicant for emergency

Delay based upon an applicant’s fault in (a) above shall

be clearly described in the applicant’s case record main-

tained by the department. In a case of waiver, the orig-

inal waiver shall be maintained in the case record and

the applicant shall be furnished a copy.

2. An individual requesting emergency assistance shall

be advised orally and in writing during the initial inter-

view that if eligible he or she may receive a disburs-

ing order at the local office that day or within 24 hours of

the request or, if the client prefers, a check may be

mailed from Springfield or Chicago to an address pro-

vided by the client.

3. An applicant for emergency assistance not yet reg-

ularly receiving AFDC, as well as an applicant for emer-

gency assistance currently receiving AFDC, shall have

his or her emergency assistance request acted upon with-

in the time limits of paragraph 1 above.

4. Defendant Trainor shall amend the Department's

Categorical Assistance Manual to incorporate paragraphs

B 1, 2 and 3 above.

(a) A copy of the amendment shall be submitted to the

court not later than 15 days from entry of this order.

Plaintiffs may within 10 days thereafter file comments in

response thereto.

(b) Defendants shall distribute the bulletin or amend-

ment to casework staff within 10 working days after re-

ceipt of the court’s approval of it.

(e) The amendment issued in compliance with this or-

der shall be filed with the court and shall not be modified

or in any way changed without obtaining leave of court

beforehand. :

5. For each month beginning with the first month fol-

lowing entry of this order and continuing thereafter until

further order of the court, defendants shall report their

compliance with this order in a form substantially sim-

ilar to defendants’ reports of June (undated) and Sep-

tember 18, 1975, with additional information showing the

cause for any delay greater than 24 hours from the time

of request until a disbursing order or check ix ready for

delivery.

D. Defendant Trainor is further ordered to give no-

tice to class members by the following methods:

1. In the next regular mailing for AFDC warrants,

defendants shall enclose a notice setting out in easily un-

derstandable language the changes in emergency assistance

affected by this order.

2. Within 60 days of entry of this order, defendant

shall cause to be prominently displayed in all public areas

of each public aid office in Illinois a poster describing in

easily understandable language the material terms of

this order.

3. The notice described in paragraph 1 and the poster

described in paragraph 2 shall describe the type of need

and possible circumstances under which emergency as

sistance is available and the conditions of eligibility for

the program.

E. This order and compliance with this order shall not

be interpreted as altering or in any manner affecting

other obligations defendants have with respeet to provid

ing prompt assistance to AFD applicants and recipi-

ents and/or providing emergency assistance to AFDC

applicants and recipients pursuant to other judgments

rendered prior to the date of this order or pursuant to

state law.

F. This judgment shall be binding on defendants, their

officers, agents, attorneys, servants, employees and their

successors, and upon those persons in active concert or

participation with them who receive actual notice of the

judgment by personal service or otherwise.

G. This court shall retain continuing jurisdiction over

this cause for purposes of enforcement.

H. Plaintiffs are awarded their costs in this matter.

Thomas R. Me Millen,

United States District Judge

— | 1

December 1. 1975

Venus Mandley, et al., v. James L. Trainor, et al.

Motion for Entry of Final Judgment and Decree

Plaintiffs’ motion for entry of final judgment and de-

cree is denied.

IN THE

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

[Caption omitted in printing.]

NOW COME the Defendants by their attorney WII

LIAM J. SCOTT, Attorney General of the State of Tli-

nois, and move this Honorable Court pursuant to Rules

12(b)(2) and 12(h)(3) of the Federal Rules of Civil Pro-

cedure to dismiss this cause of action. In support of this

their motion Defendants state as follows:

1. Effective November 21, 1975, the State of Illinois

has withdrawn from participation in the Emergency A.

sistance Program established under Title IV of the So-

cial Security Act, § 406(e), 42 U.S.C. § 606(e).

2. The particulars of this withdrawal are set out in

the attached Affidavit of Barbara Sticher. (Attachment

No. 1)

3. Notice of this withdrawal from participation in the

Federal Program has been given to the United States

Department of Health, Education and Welfare by De-

fendant Trainor, who is Director of the Illinois Depart-

ment of Public Aid. (Attachment No. 2)

4. Pursuant to the terms of the notice given to HEW

and the Affidavit of Barbara Sticher, the Department of

Public Aid, effective the 24th of November, is no longer

receiving Federal Emergency Assistance funds, nor wil!

the Department request or expend such funds in the fu

ture, except in the instance where services were pro

vided prior to November 21st, 1975.

5. There is no reasonable probability of a return to the

conduct complained of by the Plaintiffs herein.

6. No disputed question of law or fact remains to be

determined.

7. The parties lack a legally cognizable interest in the

outcome of this law suit.

8. This law suit has become moot.

9. The law suit, which has become moot, is neither a

ease nor controversy within the meaning of Article III of

the United States Constitution.

10. This Court lacks jurisdiction as no case or contro-

versy exists between the parties.

In support of this their Motion, which incorporates the

two attachments referred to above, Defendants move that

this cause of action be dismissed.

Respectfully submitted,

/s/ WILLIAM J. SCOTT

WILLIAM J. SCOTT

Attorney General of Illinois

GEORGE L. GRUMLEY

Special Assistant

Attorney General

(Of Counsel)

100 North LaSalle Street

Suite 1600

Chicago, Illinois 60602

341-4693

EXHIBIT 1

IN THE

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

[Caption omitted in printing.]

AFFIDAVIT

I, Barbara Sticher, Chief, Bureau of Fiscal Manage-

ment of the Illinois Department of Public Aid, being duly

sworn do hereby state:

1. On November 21, 1975 I was given a copy of a

letter from the Director of the Department of Public Aid

to the Department of Health, Education, and Welfare, in

which it was stated that the Department would immedi-

ately cease all activities and requests for federal reim-

bursement pursuant to the“ Emergency Assistance“ Pro-

gram, § 406 (e) of the Social Security Act.

2. On Friday, November 21, 1975, I directed that, com-

mencing Monday, November 24, 1975, no requests for

funds pursuant to § 406(e) of the Social Security Act for

assistance requested on or after November 24, 1975 should

be funded pursuant to §406(e) of the Sovial Security

Act. —

3. I have directed that no additional § 406(e) federal

funds be drawn for the balance of the October through

December quarter of the current fiscal year.

4. The Department has submitted to the Department

of Health, Education, and Welfare revised estimates for

the January through March quarters of the current fis-

eal year to reflect the fact that the Department has elim-

inated all activities pursuant to §406(e) of the Social

Security Act as of November 24, 1975.

/s/ BARBARA R. STICHER

BARBARA STICHER, Chief

Bureau of Fiscal Management

{[Jurat omitted in printing.]

STATE OF ILLINOIS

DEPARTMENT OF PUBLIC AID

JAMES L. TRAINOR

Director

316 South Second Street

Springfield, Illinois 62702

November 21, 1975

Mr. Clyde V. Downing

Acting Regional Commissioner

Social and Rehabilitation Service

Department of Health, Education,

and Welfare — Region V

300 South Wacker Drive

Chicago, Illinois 60606

Dear Mr. Downing:

This letter constitutes the Illinois Department of Pub-

lie Aid’s official notification to the Department of Health,

Education, and Welfare that Illinois shall not request

reimbursement pursuant to $406(e) of the Social Seeu-

rity Act (42 U.S.C. §606(e)) for any expenses incurred

after November 21, 1975, as the Department is terminat-

ing its program for Emergency Assistance to Needy

Families with Children“ existing pursuant to said § 406 (e).

The Department will process requests for Emergency As-

sistance pursuant to said §406(e) up to and including

November 21, 1975 and shall request federal reimburse-

ment for such requests made by that date but paid after

November 21. In no event shall the Department be re-

64 \

questing reimbursement for any expenses pursuant to said

statute where the request for ‘‘Emergency Assistance’’

was made after November 21, 1975.

Adjusted estimates will be submitted.

We will soon be writing to you formally requesting

clarification of aspects of the Emergency Assistance Pro-

gram.

Very truly yours,

S JAMES L. TRAINOR

James L. Trainor

Director

JLT :san

ce: Mr. John Kelly

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

[Caption omitted in printing.]

MOTION

The Secretary of Health, Education and Welfare by

Samuel K. Skinner, United States Attorney for the North-

ern District of Illinois, hereby moves to dismiss the above-

captioned cause pursuant to Rules 12(b)(2) and 12(h)(3)

of the Federal Rules of Civil Procedure on the ground

that the above-captioned action is moot.

Respectfully submitted,

/s/ SAMUEL K. SKINNER

SAMUEL K. SKINNER

United States Attorney

{Affidavit of mailing omitted in printing.]

IN THE

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

{Captions omitted in printing.]

PLAINTIFFS’ ANSWER TO DEFENDANTS’

MOTIONS TO DISMISS

Plaintiffs by their attorneys answer the motions to dis-

miss on grounds of mootness filed by defendants Trainor,

the Illinois Department of Public Aid and the United

States Department of Health, Education and Welfare

on December 1 and 8, 1975, respectively, as follows:

Plaintiffs deny that the Illinois defendants have with-

drawn from a federally funded emergency assistance pro-

gram and deny that the federal defendant is not now pro-

viding (and in the future will not continue to provide)

federal funds under the Social! Security Act (Act) to the

Illinois defendants for a program declared illegal by the

court of appeals.

Plaintiffs further answer that defendants are attempt-

ing to deceive this court and the court of appeals by pur-

porting to withdraw from the emergency assistance pro-

gram created by Congress in § 406(e) of the Act while

at every moment they are maintaining the same emer-

gency assistance program, with all its discriminations

found to be illegal, with federal funds secured under

§ 402 of the Act [regular AFDC funds].

Plaintiffs aver that this is a sham and a purloining of

federal funds which cannot be tolerated by a federal court

of equity. Plaintiffs further aver that defendants’ behavior

is obdurate and in bad faith which entitles plaintiffs to

an award of damages and attorneys fees.

Specifically, plaintiffs answer defendants allegations

made in support of their mootness motions as follows:

ANSWER TO DEFENDANT U.8. DEPARTMENT

OF HEALTH, EDUCATION AND WELFARE

1. Plaintiffs deny that this court lacks jurisdiction over

the federal defendant or the subject matter. Plaintiffs

deny that this action is moot. Plaintiffs further aver that

the federal defendant intentionally and in conspiracy with

the Illinois defendants has failed to reveal certain facts

which establish that the federal defendant intends to ap-

prove and fund and in fact has approved and is funding

the same Illinois emergency assistance program as was

declared unlawful by the federal court of appeals in this

lawsuit, and that Illinois in complicity with the federal de-

fendant intends to operate and in fact is operating the

same emergency assistance program declared illegal.

ANSWER TO DEFENDANTS TRAINOR AND

THE ILLINOIS DEPARTMENT OF PUBLIC AID

1. Plaintiffs deny the facts asserted in paragraph 1 of

the motion and further aver that the Illinois defendants

continue to operate their Emergeney As istance Program

and continue to claim federal funds therefor.

2. Plaintiffs have insufficient knowledge either to admit

or deny the facts asserted in the Affidavit of Barbara

Sticher incorporated into paragraph 2 of the motion and

further aver that the affidavit is insufficient in law be-

cause the affidavit fails to lay a proper foundation for

the facts attempted to be proved by the affidavit, includ-

ing the affiant’s competence to testify concerning the ma-

terial facts asserted by her, and plaintiffs aver that in

fact the affiant is not competent to testify to such facts.

3. Plaintiffs have insufficient knowledge either to ad-

mit or deny the facts asserted in paragraph 3 of the

motion and further aver that the ‘‘notice’’ set out in

Attachment No. 2 to defendants’ motion is not in com-

pliance with H.E.W. regulations controlling amendments

to a State Plan for Aid and Services for Needy Families

With Children. 45 C. F. R. 88 201, et seq.

4. Plaintiffs deny the facts asserted in paragraph 4

of the motion and further aver that defendants have since

November 24, 1975, claimed and will continue thereafter to

claim federal funds for emergency assistance payments

and services provided to members of the plaintiff class

prior to and after November 21, 1975.

5. Plaintiffs deny the facts asserted in paragraph 5 of

the motion and further aver that defendants are cur-

rently engaging in and will continue to engage in the

conduct complained of in plaintiffs’ amended complaint.

In support of this statement, plaintiffs further state as

follows:

a. Plaintiffs attach hereto and incorporate herein

Plaintiffs’ Exhibit 1 to this Answer, which is De-

fendant Trainor’s report to the Illinois Legisla-

tive Advisory Committee on Public Aid concerning

compliance with the court of appeals’ decision in

the within case. Plaintiffs’ Exhibit 2, which is a

motion made and passed by the Illinois Legislative

Advisory Committee on Publie Aid on November

17, 1975, and Plaintiffs’ Exhibit 2, which is the

affidavit of Michael F. Lefkow pertaining to Plain-

tiffs’ Exhibits 1 and 2.

b. Plaintiffs call the court’s particular attention to

Exhibit 1 in which Defendant Trainor sets forth

three alternatives with respect to the court of ap-

peals’ decision, one of which is Alternative B. Al-

ternative B proposed to ‘‘Eliminate the 606(e)

Emergency Assistance Program’’ and it was re

jected: The Department, although believing this

alternative to be legally acceptable, finds this alter-

native totally unacceptable.”’

c. In light of Plaintiffs’ Exhibits 1, 2 and 3, plaintiffs

aver that defendants have not eliminated their

Emergency Assistance Program as set out in their

motion to dismiss.

d. Plaintiffs further aver that the Illinois defendants

intentionally and in conspiracy with the federal

defendant II. E. W. have failed to reveal certain

facts which establish that the Illinois defendants

intend to operate and in fact are operating the

same emergency assistance program as was de-

elared unlawful by the federal court of appeals in

this lawsuit, that the Illinois defendants intend to

claim and in fact are claiming federal funds for

that illegal program, and that defendant Depart-

ment of H.E.W., in complicity with this evasion

of the court of appeals’ decision, intends to author-

ize federal monies to be disbursed for Illinois“ un-

lawful program.

6. Plaintiffs deny the assertion in paragraph 6 of the

motion and to the contrary assert that important ques-

tions of both fact and law exist and that this court must

set this matter for an evidentiary hearing to determine

the facts before a ruling can be entered on the motions

to dismiss. Plaintiffs further aver that if final judgment

for plaintiffs is not entered because the court finds the

defendants are not and do not intend to claim, use and

disburse federal funds for an emergency assistance pro-

gram, the following issues must be decided by the court:

(a) Whether Illinois law, Ch. 23, Ill. Rev. Stat.,

9124.5, prohibits the state defendant from re-

fusing to claim federal funds available for an

emergency assistance program and if that is not

resolved in plaintiffs’ favor:

(b) Whether the state defendants’ discriminations,

found illegal under the Social Security Act by

the court of appeals, violates the Equal Protec-

tion Clause of the Fourteenth Amendment; and

if that is not resolved in plaintiffs’ favor;

ance program satisfies the requirements of IIli-

nois law, Ch. 23, III. Rev. Stat., § 12-8, for an

emergency assistance program.

7. Plaintiffs deny the assertions of paragraph 7 and to

the contrary assert that plaintiffs continue to have a le-

gally cognizable interest in this lawsuit.

8. Plaintiffs deny the assertions of paragraph 8 and to

the contrary assert that this case is not moot and that

plaintiffs are entitled to final judgment in their favor.

9. Plaintiffs deny the assertions of paragraph 9 and

to the contrary assert that a case of controversy contin-

ues to exist between plaintiffs and defendants and that

plaintiffs are entitled to final judgment in their favor.

10. Plaintiffs deny the assertions of paragraph 10 and

to the contrary assert that this court has jurisdiction and

is obliged to enter final judgment on behalf of plaintiffs.

WHEREFORE, plaintiffs pray that the motions to dis-

miss be denied at once, or alternatively that this matter

be set down for hearing to determine the facts, which

plaintiffs believe will show that they are entitled to final

—

judgment in their favor and that the motions to dismiss

must be denied. Plaintiffs further pray for an award of

damages and attorney fees because of the defendants’ bad

faith and obdurate behavior.

/s/ MICHAEL F. LEFKOW

Michael F. Lefkow, one of the

attorneys for plaintiffs.

STEPHEN G. SELIGER

Cotton, Watt, Jones, King & Bowlus

One IBM Plaza

Chicago, Illinois 60611.

MICHAEL F. LEFKOW

4655 South Michigan Avenue

Chicago, Illinois 60653

EXHIBIT 1

10-30-75

I. STATUS OF LITIGATION

A. The Federal District Court ruled that the Scope of

the Department’s 6060) Emergency Assistance

Program was legal, but it retained jurisdiction

to supervise the speed of delivery of Emergency

Assistance.

On appeal, the U.S. Court of Appeals for the

Seventh Cireuit ruled that the program was il-

legal, as it restricted the persons eligible for

Emergency Assistance to a group smaller than

all persons eligible for AFDC. The opinion made

clear that the Department had the option at any

time to discontinue its 606(e) program.

The Department petitioned the Court for a Stay

of the issuance of the Mandate and a clarification

of the Order so as to allow the Department to

seek Supreme Court review of the Seventh Cir-

cuit's opinion while being protected against con-

tingent liability. Such a Stay, if granted, would

have allowed the Department to maintain its cur-

rent Emergency Assistance Program during the

Appellate process. The Seventh Cireuit denied

such Petition for Stay.

Il. ALTERNATIVES

A. Maintain the 606(e) Program.

Be.ause of the denial of the Stay, the District

Court can now be expected to direct the Depart-

ment (if it decides to continue the program) to

draw up a new Emergency Assistance plan af-

fording eligibility for Emergency Assistance to

all persons eligible for AFDC. Under our cur-

rent Emergency Assistance Program, Emergency

Assistance is limited, in general, to persons who

have been burned out of their homes. The Sev-

enth Cireuit’s opinion would require the Emer-

gency Assistance Program to be offered to any

AFDC recipient in a situation of financial desti-

tution, thereby including a person who alleged

that they have had cash stolen or even arguably

those persons who have become destitute by gam-

bling away their assistance money. The Seventh

Cireuit’s opinion implied that the Department

could ‘‘reasonably’’ limit its expenditures under

an Emergency Assistance Program. But even if

the Department could so limit (and the Depart-

ment feels the Plaintiffs would argue against any

such limitations), the results would be to divide

a limited amount of Emergency Assistance money

among a verv expanded group of individuals, thus

reducing the amount of assistance paid in each in-

dividua! case to a meaninglessly small amount.

The agency is thus faced with the prospect, if

it continues the program, of potentially unlimited

financial expenses, if it meets actual need in

Emergency Assistance payments, or the payment

of meaninglessly small amounts (and the possi-

bility of legal challenge and subsequent manda-

tory order of additional financial payments).

The Department spent approximately $500,900 on

its 606(e) program for which it requested federal

reimbursement during fiscal year 1975. Prior to

the Flat Grant, when the 606(e¢) Emergeney Ax-

sistance Program had a wider scope, the Depart-

ment had spent in the neighborhood of one and

one-half million dollars annually for which it

applied for federal reimbursement. As the defi-

nition of Emergency Assistance would have to be

even wider than the definition had been prior to

Flat Grant, and as the number of AFDC recipi-

ents has increased, the one and one-half millien

dollars would constitute a significant under-esti-

mate of what the program would cost. Because of

the open ended nature of the definition of ‘eligi-

bility’’ and ‘‘destitution’’, it is impossible to pro-

ject any limitations on the maximum cost of the

program.

Eliminate the 606(e) Emergeney

Assistance Program.

Under the law we are entitled to eliminate the

program. Plaintiffs have argued in the lawsuit

that there is a state law requirement for an Emer-

gency Assistance Program. The Department does

not believe this argument to be trne. In any event,

if such a requirement exists, the program would

not have to be of such breadth as the program

required by the Seventh Circuit's opinion.

The Department, although believing this alterna-

ive to be legally acceptable, finds this alternative

totally unreceptable. The Department believes that

certain Emergency conditions, such as homeless-

ness through burnouts are needs which the De-

partment of Public Aid clearly ought to meet and

the Department would not wish to curtail its

ability to do so.

Eliminate 606 (e) Program and Create a Program

for Meeting Emergent Burnout Cases to be

Funded Under Section 602 and Section 603.

This is the alternative recommended by the De-

partment. IDPA proposes to create a special need

item (for which it would apply to the Federal

Government for reimbursement at the usual 50%

rate) as part of the regular AFDC program. Such

a program would not cost the Department signifi-

cantly more than the present program as the only

increase in expenditures would be for people who

were burned out more than once in a 12-month

period. (Payments for two emergencies to the same

receiving unit within a 12-month period are not

reimbursable under the Section 606(¢) provisions. )

Should for some reason the Federal Government

protest the creation of such a special need item,

the situation would have to be reevaluated. At the

present time we believe the Federal Government

would approve funding such a special need pro-

gram.

Simultaneously, we would request (as the Sev-

enth Cireuit suggested) that HEW clarify its

606(e) Emergency Assistance Program. There are

aspects of a 606(¢) program that we feel superior

to a special need program and we would prefer, if

so allowed, to maintain the 6060) Emergeney

Assistance Program of the present Scope.

Finally, an additional reason for this reeommenda-

tion is that the District Court has retained juris-

diction over the entire matter to supervise our

speed of delivery. If the Distriet Court were to

rule that we were legally required to maintain a

delivery system that we could not fulfill, we would

have to eliminate the program in any event. This

rapidity of delivery issue also is one in which

we could ask clarification from the Department

of Health, Education and Welfare, and we would

be in a better position upon such clarification to

decide if a better position upon such clarification

to decide if a new 606(e) Emergency Assistance

Program should be maintained.

Move that the Legislative Advisory Committee On

Public Aid approve for a 5 month period the plan as

recommended by Director Trainor to handle emergency

burn-outs to be funded under Section 602 and 603 and to

report back to the Committee at its April 1976 meeting

with the results of this program and his recommendation

to handle other special emergency needs which may not

have been met; and that Director Trainor request from

H.E.W. clarification of its emergency assistance program

as suggested by the United States Court of Appeals; and

that Director Trainor investigate and study a purely State

program to define and meet emergency needs; and that

Director Trainor investigate and study the feasibility of

creating a special catastrophic occurrence as a special need

under the flat grant program.

EXHIBIT 3

IN THE

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

[Caption omitted in printing.]

AFFIDAVIT OF MICHAEL F. LEFKOW

I. MICHAEL F. LEFKOW, being first duly placed upon

affirmation, state as follows:

1. I have knowledge of the facts contained herein and

could testify competently thereto if called as a witness.

2. On or about November 11, 1975, 1 received through

the United States mail a notice from the State of. Illinois

Legislative Advisory Committee on Public Aid announe-

ing that it would meet on November 17, 1975, to consider

an agenda which included as item number III. IDPA

EMERGENCY ASSISTANCE PROGRAM (MANDLEY

v. TRAINOR, U.S. COURT OF APPEALS DECTSION,”’

The agenda and notice are attached hereto as Exhibits A

and B respectively.

3. The Legislative Advisory Committee is created by

Illinois law, Ch. 23, III. Rev. Stat., § 12-14 (statute at-

tached as Exhibit C), and has 12 members: six senators

and six representatives.

4. On Monday, November 17, 1975, | attended a meeting

of the Legislative Advisory Committee on Publie Aid

which commenced at 1:00 p.m. in Room 1-A of the State

Office Building at Springfield, Illinois. Fight committee

members responded present to the roll call of members.

Also present were Mr. James L. Trainor, Director of the

Illinois Department of Public Aid (IDPA) and defend-

ant herein, members of his staff, and members of the

public. A stenographic record of the proceedings was made.

4. When the Committee reached agenda item number

III, the Chairman, Senator Donald A. Moore, asked de-

fendant Trainor to present the IDPA’s recommendation

on how the IDPA proposed to comply with the court of

appeals decision in this case. Defendant Trainor directed

the members’ attention to his three-page recommendation

dated 10-30-75 (attached hereto as Plaintiffs’ Exhibit 1),

previously distributed to the Committee with a cover let-

ter, and paraphrased the contents. Defendant Trainor

stated that he rejected withdrawal from the emergency

assistance program; that elimination of the emergency as-

sistance program was totally unacceptable to the IDPA.

Defendant Trainor further stated that the IDPA could

and would maintain the same emergency assistance pro-

gram it now has by applying for federal funds under

§§ 602 and 603 [§§ 402 and 403 of the Social Security

Act (Act) J. Defendant Trainor further stated that he

believed the U.S. Department of Health, Education and

Welfare, also a defendant herein, would approve this plan

and disburse federa! funds to the IDPA for its emer-

gency assistance program under §§ 602 and 603 rather

than under 8 606(e) [§406(e) of the Act).

5. After several committee members briefly questioned

defendant Trainor, Senator Monroe L. Flinn read a writ-

ten motion to approve defendant Trainor’s pian to re-

ceive federal funds under 88 602 and 603. The motion was

seconded and upon a vote was carried, 7 ayes, 1 nay.

Mrs. Gail E. Chesnut, Executive Secretary of the Com-

mittee, provided me with a copy of the motion, attached

as Plaintiffs’ Exhibit 2, after the meeting adjourned.

6. Subsequent to the meeting Senator Donald A. Moore

identified for me Plaintiffs’ Exhibit 1 as a copy of the

original 10-30-75 recommendation forwarded to him by

defendant Trainor.

7. Further affiant sayeth not.

MICHAEL F. LEFKOW

{Jurat omitted in printing.]

EXHIBIT A

LEGISLATIVE ADVISORY COMMITTEE

ON PUBLIC AID

Monday, November 17, 1975 — 1:00 p.m.

Room A-1, State Office Building

I. Roll Call of members.

II. Preliminary review of Medicaid hearings held on

October 15th and 16th.

III. IDPA Emergency Assistance Program (Mandley

v. Trainor, United States Court of Appeals decision.

IV. Review of override of Governor’s veto of LAC

Bills.

V. Progress report on follow-up of problems of delayed

payments by IDPA to Cook County, Oak Forest Hospitals

and investigation of the Von Solbrig Hospital and North-

east Community Hospital.

VI. Review of IDPA Regulations, defining SB 1147's

language governing ages 18-21 living independently.

VII. Testimony by Assistant State’s Attorney, St. Clair

County, Rosa Gossage on progress in prosecuting welfare

fraud cases at county level.

VIII. Review of progress by IDPA and Office of Attor-

ney General in enforcing claims and penalties including

child support payments as provided in the Public Aid Code.

IX. Review of the administration of Federal Food

Stamps Program.

X. Review of the status of Budget Counseling and Medi-

chek Program.

XI. Review of the General Assistance Program.

EXHIBIT B

STATE OF ILLINOIS

LEGISLATIVE ADVISORY COMMITTEE

ON PUBLIC AID

Room 4c State Office Building

Springfield, Illinois 62706

Telephone: 217/782-7761

November 7, 1975

MEETING NOTICE

The next meeting of the Legislative Advisory Commit-

tee On Public Aid will be held on Monday, November 17,

1975 at 1:00 P. M. in Room A-1 of the State Office Build-

ing.

Enclosed is the Agenda for the meeting.

Sincerely,

/s/ DON A. MOORE

Don A. Moore, Chairman

EXHIBIT C

C. Legislative Advisory Committee

§ 12-14. Membership - Powers and Duties.

A legislative Advisory Committee on Public Aid, com-

posed of 6 members of the House of Representatives ap-

pointed by the Speaker thereof and 6 members of the

Senate appointed by the President thereof, shall exercise

the powers and duties herein prescribed relevant to the

policies and administration of the public aid programs

established by this Code.

No more than 3 members appointed from each House

of the General Assembly shall be of the same political

party. The members shall be appointed in each odd-

numbered year prior to July 1.

[Affidavit of service omitted in printing.]

IN THE

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

(Caption omitted in printing.]

SUPPLEMENT AND AMENDMENT

TO PLAINTIFFS’ ANSWER TO DEFENDANTS’

MOTIONS TO DISMISS

Plaintiffs by their attorneys supplement and amend

their answer to the defendants’ motions to dismiss with

Plaintiffs’ Exhibits 4 and 5.

Plaintiffs’ Exhibit 4 is a copy of defendant Trainor’s

testimony to the State of Illinois Legislative Advisory

Committee on Public Aid which relates his decision not

to abandon, but rather to continue, federal funding of

defendant Illinois Department of Public Aid’s emergency

assistance program without removing the discriminations

held illegal by the court of appeals. He intends to block

further judicial review of his illegal conduct by tempo-

rarily suspending funding the emergency assistance pro-

gram under § 406(e) and instead will fund it under § 402

for an interim period. His conduct in this court — reveal-

ing only one-half of is plan — is in furtherance of the

scheme he proposed to the Illinois legislators and is a

deliberate attempt to deceive this court and evade the

court of appeals’ decision.

——

— — On oe —

Plaintiffs’ Exhibit 5 is the affidavit of plaintiffs’ coun.

sel, Michael F. Lefkow, which authenticates plaintiffs’

Exhibit 4.

% MICHAEL F. LEFKOW

One of the Attorneys

for Plaintiffs.

EXHIBIT 4

Federal, but the actual payment for exams, laboratory

work, et cetera, is a Medicaid function and I think ix

Federal funds. I know a large part of it is, I don’t. know

if it is one hundred percent.

CHAIRMAN MOORE: Thank vou very much, Doctor.

I know that the Committee is aware that you have onc

of the only operational PSRO’s in the State. The Com-

mittee is concerned about preventive medicine. There is

a problem. When you get a child at a very early age

we can ultimately, hopefully, get him and save the State

a lot of money in the future, and we appreciate your start

ing such a pilot program. Thank vou, again, for coming

down.

DR. RAY: Yes, sir.

CHAIRMAN MOORE: Let's go to Item III - Illinois

Department of Publie Aid Emergeney Assistance Pro-

gram, Mandley versus T, ir, U. 8S. Court of Appeals

decision.

Director Trainor, | think — may I see a show of hands

of individuals who desire to make statements on this

particular question right now?

I know I do have a memorandum from the Illinois

Welfare Rights Organization. I know the members of

the Committee, Director, did receive the memorandum you

had sent to me. Perhaps we could hear from the oppo-

nents here on this matter and then perhaps you could

rebut at that time and go into your proposal.

A memorandum was delivered to me today by Mr. Lef-

kow, one of the Legal Aid Attorneys.

Who would like to say a few words on this matter?

MR. LEFKOW: My name is Michael Lefkow. I do

not intend to address the Committee, other than to inform

it that Mrs. Ruby Mabry, who is the Chairwoman of the

Illinois Welfare Rights Organization, which is the plain-

tiff in the lawsuit, had this fact sheet prepared, and be-

lieves that it is a fact sheet, and I think the Committee

is well aware of the position, or the stand of the State

Welfare Rights Organization and that there should be a

fully Federally funded emergency assistance program,

so I hope the Committee will excuse Mrs. Mabry. There

was, apparently, a death in the family and she was called

to the State of Oklahoma.

CHAIRMAN MOORE: Did you prepare the state-

ment, or was it prepared by someone else?

MR. LEFKOW: The statement was prepared by the

Illinois Welfare Rights Organization. I am Genera! Coun-

sel for that organization.

CHAIRMAN MOORE: I have just one very fast

question. What emergency needs must be met? I am look-

ing at question number 3. Food, clothing and shelter are

among the basic needs that must be met.“

Where did that statement come from?

— —

MR. LEFKOW: That is Mrs. Mabry’s statement, I

believe.

CHAIRMAN MOORE: Is there a Federal regulation

that sets forth the basic needs as being food, clothing

and shelter, to your knowledge?

MR. LEFKOW: I think that it might be inappropri-

ate for me to testify as to, Senator Moore, any of the

matters. I just really wanted to advise the Committee of

Mrs. Mabry’s absence, and I am just acting as the attor-

ney in the case.

I prefer not to do it. Mrs. Tillman from the Council

for Community Services in Metropolitan Chicago will be

a witness today. Thank you.

CHAIRMAN MOORE: Thank you. Director Trainor?

Do you want to proceed on what vou think the solution

to the decision of Mandley vs. Trainor should be and vour

rationale behind it? |

DIRECTOR TRAINOR: Yes, sir. We basically have

several objectives. One is to eliminate the emergency as

sistance program, which is optional under the law and

the regulation, or to attempt to completely State fund the

program, but given the Mandley decision, we would be

creating in effect nothing more than a legal challenge in

the State court on the same basis.

We could attempt to redefine the program within the

Mandley decision. However, again, my friends and col.

leagues to my right would again file a suit on the ques-

tion.

Rather than doing that, | think that the Court gave

us some guidance, such as it is. The options that I would

choose to exercise at this point is to follow the (Court

mandate, and that is to suspend the present program and

seek to obtain from HEW a definition of an emergency

assistance program.

Pending that definition and so that people would not

in fact be destitute and, essentially, homeless or burn out

cases, we would create a new program under AFDC and

recognize a special need covering essentially the same

items that we now cover under what the Court says is an

invalid emergency assistance program.

CHAIRMAN MOORE: How would burnouts be han-

died?

DIRECTOR TRAINOR: They would be handled es-

sentially in the same way they are now. If a person comes

to an office and demonstrates a need for such type of as-

sistance, they would be able to obtain it. Only rather than

under an emergency assistance program under the spe-

cial needs category AFDC program.

CHAIRMAN MOORE: In other words, it would not

be under 606(e), but would be under 602 and 603?

DIRECTOR TRAINOR: That’s correct.

CHAIRMAN MOORE: My main concern, I will be

very honest with vou, are burnouts, catastrophe losses,

stolen warrants.

What would be the situation with the stolen warrants?

DIRECTOR TRAINOR: Well, let's take it — stolen

warrants, at this point we already are under a mandate

in the Randall vs. I don't know if it was Edelman, Swank

or myself.

(Discussion off the record.)

DIRECTOR TRAINOR: Thev have changed it. It is

now Randall vs. Trainor.

- a ee

CHAIRMAN MOORE: They got it right now.

DIRECTOR TRAINOR: Well, vou know, they update

these things.

But under that, we are mandated to replace Jost or stolen

warrants within a certain percentage of time, and the De-

partment’s record for the month of October was that

within three days from the time the person reported the

lost or stolen warrant, we had replaced 85.9 pereent of

those. Within four to seven days we replaced another

13.3 percent, so the Department right now is replacing

within seven days 90.2 percent of lost or stolen warrants.

CHAIRMAN MOORE: Very good.

DIRECTOR TRAINOR: Now, in terms of the catas-

trophic situation, at any time under HEW regulations,

we can recreate an emergeney assistance program. Penn-

sylvania during the floods in fact did that. They had no

emergency assistance program. They went ahead and

created one, so if we had a tornado or some other catas-

trophe, or a wreck or something like that, we could in fact

create an emergency assistance program.

CHAIRMAN MOORE: Senator Dougherty?

SENATOR DOUGHERTY: 1 was just going to ask

the Director, in view of this decision then, vou feel vou

have an adequate method of dealing with this? You are

right under the gun, as | read the decision.

DIRECTOR TRAINOR: Yes, sir, I think the Judge

expects me to do something one of these days.

SENATOR DOUGHERTY: But it can be done. I

would suggest there is nothing else we could do in view

of this situation. Have you outlined any plans that you

might want to suggest?

DIRECTOR TRAINOR: Well, I think the Court cor-

rectly recognized that the problem with this program

is a lack of definition.

SENATOR DOUGHERTY: We need a Dr. Hayikawa,

in other words.

DIRECTOR TRAINOR: In effect, but we do need a

definite, well thought out, vital emergency assistance pro-

gram and what that should include, and the Court did

say that the Department should seek to do that.

SENATOR DOUGHERTY: You have no objection!

DIRECTOR TRAINOR: No, sir. As a matter of fact,

I intend to do that.

CHAIRMAN MOORE: Do 1 understand the recom.

mendation, Director, is that vour emergency burnouts

would be funded under Section 602 and 603, is that cor-

rect?

DIRECTOR TRAINOR: Yes, sir.

CHAIRMAN MOORE: And vou temporarily would

suspend then Section 606(e)?

DIRECTOR TRAINOR: Ves, sir.

CHAIRMAN MOORE: What other items are covered

besides burnouts that the Court declared unconstitutional?

DIRECTOR TRAINOR: Well, we cover essentially

four items — homelessness, where the family is without

shelter as a result of damage to the building, render-

ing it uninhabitable; court ordered eviction, where the

court order occurs for reasons other than the reecipi-

ent’s failure to pay rent; potentially homeless, where the

family is potentially homeless through damage to a por-

tion of the building or of its contents, and the applicant

in need of initial eligibilitv, where a client is determined

- — —— ee ee te

eligible or presumed eligible to receive cash for cloth-

ing, household furnishings and equipment. Those are

the four items that are covered.

CHARIMAN MOORE: And now we would restrict

that to -

DIRECTOR TRAINOR: — The same four items would

be covered under a new program under 602 and 603.

CHAIRMAN MOORE: Are there any other items

that would be available — 602(e), that pertained only to

AFDC, to recipients or eligible recipents?

DIRECTOR TRAINOR: Well, that is the problem.

That is what the Court ruled that we could no longer do.

CHAIRMAN MOORE: We have to open it up to

everybody ?

DIRECTOR TRAINOR: We opened it up. I think this

is the case where the advocates won more than they

could really hope to achieve.

CHAIRMAN MOORE: Director, would you have any

objection, on the recommendation of this Committee, to

going with this thing for maybe a four or five month

period and reporting back to us?

I do have some concern as far as the effect of the

decision. In fact, it is sort of unfortunate the decision was

ever granted in view of the posture we may be in. Would

you report back to the Committee at its April meeting as

to how the new system is going?

I am sure we will hear from the welfare community if

it is not going well.

In addition to seeking clarification from HEW, which

was suggested to you in the opinion of the U. S. Circuit

Court of Appeals, also to investigate and study perhaps

the totally State funding of this matter. We would be

eligible under 602 and 603 for 50/50 match. If we go from

$500,000 to $2 million, it is going to cost the State of IIli-

nois $1 million and the Federal $1 million. It might be

easier for us to take the whole program over in the State,

which would cost $800,000, for example. In other words,

there might be a potential cost savings if it were through

an ADC situation, and also the possibility of investigat-

ing the feasibility of creating a special catastrophic oc-

eurrence as a special need, or an exception to the flat grant

program.

Would you have any objection to that?

DIRECTOR TRAINOR: No, sir.

CHAIRMAN MOORE: Any questions of the Com-

mittee?

REPRESENTATIVE CATANIA: Mr. Chairman:

CHAIRMAN MOORE: Representative Catania:

REPRESENTATIVE CATANIA: Thank you, Mr.

Chairman. Director Trainor, when you mentioned the

length of time it took to replace a check when it was stolen,

by ‘‘replace’’, do you mean those checks were then actu-

ally in the hands of the people who had reported the

loss?

DIRECTOR TRAINOR: Yes, ma’am, that is what

I do mean.

REPRESENTATIVE CATANIA: How soon do you

expect to be able to have a plan working that should sat-

isfy the Court?

DIRECTOR TRAINOR: That depends on the definition

that they give to emergency assistance. The Court, rather

than defining what an emergency assistance program was,

rather cleverly said that was not their duty, that it is up

— Sat re ee.

ee eee

to the Department and HEW, so that now we have to

seek HEW guidance on what is an emergency assistance

program.

REPRESENTATIVE CATANIA: I assume you have

already sought that guidance?

DIRECTOR TRAINOR: No, ma aim, I have been Wait.

ing the outcome of this meeting.

CHAIRMAN MOORE: I might add, Representative

Catania, that the Director, as of about seven or eight

days ago, was coming close to being held in contempt. of

court. I did give him a letter which was apparently help-

ful, inasmuch as he is mandated to bring this before this

Committee, and the earliest time we could have had a

meeting was today, so apparently that letter was forwarded

to the Judge and you are awaiting some advice from the

Committee today?

DIRECTOR TRAINOR: I am awaiting your advice

and of counsel, ves, sir.

CHAIRMAN MOORE: I do have a memo from Repre-

sentative Mann expressing his opinion, and for the rec

ord I would like to state that he thinks:

The Department should not withdraw from Fed-

erally funded emergency assistance, and that the De.

partment should comply with the Court of Appeals

decision and have a full program.”’

That message was given to me over the telephone. It

came in over the telephone. I would like the record to

so reflect.

Are there any other questions? Representative Camp-

bell:

REPRESENTATIVE CAMPBELL: Mr. Chairman, for

purposes of a motion, I move that the Legislative Advi-

sory Committee on Public Aid approve for a five month

period the plan as recommended by Director Trainor to

handle emergency burnouts, to be funded under Sections

602 and 603, and to report back to the Committee at its

April, 1976 meeting with the results of this program and

his recommendation to handle other special emergency

needs which may not have been met, and that Director

Trainor request from HEW clarification of his emergency

assistance program as suggested by the U. S. Court of

Appeals, and that Director Trainor investigate and study

a purely State program to define and meet emergency

needs, and that Director Trainor investigate and study

the feasibility of creating a special catastrophic occur-

rence as a special need under the flat grant program.

CHAIRMAN MOORE: You have heard the motion.

Is there a second?

REPRESENTATIVE FLINN: Second.

CHAIRMAN MOORE: Seconded by Representative

Flinn. On that question the Secretary will take the roll.

MS. CHESNUT: Representative Campbell:

REPRESENTATIVE CAMPBELL: Axe.

MS. CHESNUT: Representative Catania:

REPRESENTATIVE CATANIA: Axe.

MS. CHESNUT: Representative Davis:

(No response)

Senator Dougherty:

SENATOR DOUGHERTY: Aye.

MS. CHESNUT: Representative Flinn:

REPRESENTATIVE FLINN: Aye.

— om

—— — — ee Yr —T2—ͤ ae

—— —

—

—— I — ———

tein ee

MS. CHESNUT: Representative Kempiners:

REPRESENTATIVE KEMPINERS: Ave.

MS. CHESNUT: Senator Lane: |

(No response)

Representative Mann:

(No response)

Senator Moore:

SENATOR MOORE: Axe:

MS. CHESNUT: Senator Ozinga:

(No response)

Senator Schaffer:

SENATOR SCHAFFER: Aye.

MS. CHESNUT: Senator Smith:

SENATOR SMITH: Mr. Chairman:

CHAIRMAN MOORE: Senator Smith:

SENATOR SMITH: Realizing the deep need to define

and review so we can come up and compiy with the rules

of HEW, I still can’t overlook the fact that until the

time specified in my friend’s amendment that was passed

or lapsed, and that there will be a problem after the

Director will have contacted HEW with time for him to

draft such acceptable legislation and leaving these people

in limbo, as IT think they are now, I am recalling as I talk

the fact that we have set up welfare stations throughout

the State in convenient places, so that rather than con-

tact us here in Springfield in emergencies such as we have

discussed here on the four matters that are involved

that they will apparently be no better prepared and —

haps not as well prepared to receive some emergeney us.

sistance. There is no way under high heaven thev could

be. Therefore, I must vote nay.

————

CHAIRMAN MOORE: All right, gentlemen, on this

question there are seven ‘‘ayes’’, one ‘‘nay’’, and the mo-

tion carries.

Mrs. Tillman, I inquired before whether or not anyone

desired to speak. Then there was a conference back there

and

MRS. TILLMAN: Well, the problem was, I was not

speaking for the Welfare Rights Organization. | was go-

ing to speak for the Council of Community Services, so

we got caught in the shuffle.

CHAIRMAN MOORE: It was not the intention of the

Chair to prevent you from testifying, if you so desired.

Do you want to say a few words, or -

MRS. TILLMAN: I think it is a little past the point,

I think, in terms of what I have to say.

CHAIRMAN MOORE: I think the Committee does

have some concern and some reservations, as vou will

note from the other directions that were given to the

Director on this point.

This matter will be back on our agenda at the April

meeting, and I assume that the good judges of the U. S.

Court of Appeals will continue the case again until after

that meeting, Director, but I think that the Committee —

there is a problem. It is just unfortunate the decision came

down in the first place.

SENATOR SMITH: Mr. Chairman:

CHAIRMAN MOORE: Senator Smith:

SENATOR SMITH: May | ask a question of you or

of the Director, either or both?

When you were speaking of that decision vou brought

something back to my mind, a communication that we re-

ͤ— —-— ee ne Ce ll Re — ee te ey

ceived from the Director demanding, in the light of the

Court’s ruling, that an answer be had by, | think, Decem-

ber — no, by the 7th o something.

CHAIRMAN MOORE: November, I think.

SENATOR SMITH: I am informed the 7th of Sep-

tember.

Now, have you answered the Court or has anyone, to

your knowledge? 1 am trying to determine whether the

Court has finalized —

CHAIRMAN MOORE: If I could reply, Senator Smith:

Because this Committee could not have a meeting prior

to November 7th, I delivered to the Director a letter stat-

ing that this would be the earliest time the Committee

could have a meeting under Chapter 23, Section 1214,

which it was required te do, and he in turn used this

letter, I believe, with the Court of Appeals to stall them

pending our decision today, so that he could then go ahead

and then implement the order.

SENATOR SMITH: May I then ask a question of the

Director.

Did you deliver such a letter?

DIRECTOR TRAINOR: I gave it to the attorneys han-

dling the case. The use they have made of it I don’t

know, but as far as I know, IT am not in contempt of

court right as of this moment.

CHAIRMAN MOORE: All right, we will proceed.

Director, Item V, a progress report on follow-up of

problems of delayed payments by the Department to Cook

County, Oak Forest Hospitals, and the investigation on

the Von Solbrig and Northeast Community Hospitals.

Mrs. Gossage, are you under any special time period?!

MRS. GOSSAGE: I should be out of here before 4:00.

CHAIRMAN MOORE: All right, Director, go ahead.

DIRECTOR TRAINOR: First of all, I am sorry Sena-

tor Ozinga is not here because I did check on the sixth-

month problem. We did have a problem, but it is nowhere

near as severe as Dr. Houghton and Mr. Jarvis attempted

to paint it.

In the last eight months there have been ten records

that took 45 days or more, so that I don’t think that is a

generic problem, although we have issued instructions

to regional directors and the

[End of Exhibit.)

* * *

[Affidavit of Service omitted in printing.]

8 * *

[Affidavit of Service omitted in printing.]

IN THE

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

(Caption omitted in printing.]

DEFENDANTS’ OBJECTIONS TO THE ENTRY

OF PLAINTIFFS’ PROPOSED ORDER

Plaintiffs herein have offered this Court a proposed

order allegedly intended to implement the previous orders

and opinions of this Court. This Court rendered its deci-

sion in Defendants’ Motion to Dismiss on December 31,

1975. Defendants were given to and including January

21st to make their objections to that order.

Prior to the Court’s decision Plaintiffs filed an appeal

to the United States Court of Appeals for the Seventh

Cireuit seeking reversal of this Court’s Order denying

Plaintiff’s Motion for an Entry of Final Judgment and

Decree, which order was entered on the Ist of December.

1975. The appropriateness of an appeal from the denial!

of an entry of an order while at the same time urging its

entry in the court below is a question of jurisdiction on

which this Court should be briefed by the parties. How-

ever, due to the brevity of time that Defendant's Counsel

has been afforded, that issue cannot be adequately briefed

herein. Only he objections to the order will be set forth.

OBJECTION TO PROPOSED FINAL JUDGMENT

1. The proposed order totally ignores the fact that the

Defendant ILLINOIS DEPARTMENT OF PUBLIC ALD

has ceased maintaining its §406(¢) Emergency Assist-

ance program. In fact, Plaintiffs’ proposed order sug-

gests that the program is continuing and in their pro-

posed order seeks to mandate the resurrection of a program

which has long since ceased.

This Court’s Order of December 31, 1975 recognizes

that, since November 24, 1975, the Illinois Department of

Public Aid has not been operating a program pursuant to

§ 406(e) of the Social Security Act. Paragraph 14 of the

proposed order evidences plaintiffs’ erroneous contention

that the Defendants must resurrect this program:

„The State Defendants have violated and continue to

violate § 406 (e) of the Act... .”’

Paragraph 14 of Plaintiffs’ Proposed Order

(Emphasis added. )

This assertion is directly contrary to the finding of the

Court of Appeals in the instant case that the Illinois

Department of Public Aid has the right to discontinue,

as it already has, its §406(e) program at any time.

„Illinois, should it elect to continue to provide an Emer-

gency Assistance program in the future, will still have

substantial control of its program

Seventh Cireuit Court of Appeals Decision

(September 25th, 1975) at page 11.

(Emphasis added. )

The Court of Appeals cited, at page 13 of its Decision,

Purnell v. Edelman, F. 24——— (7th Cir. Nos. 74-1051

and 1052, decided April 10th, 1974.). That case presented

a problem to the Trial Court on remand identical to the

instant situation. In Purnell, the Illinois Department of

Public Aid chose to cease its participation in the same

406(e) Emergency Assistance program for utility serv-

ice turnons and instead adopted a different mode of

handling the problem which did not use §406(e) funds.

Plaintiffs, on remand to the Court below, sought a Rule

to Show Cause why the Defendants should not be held

in contempt of court. Upon being satisfied that the State

was no longer claiming funds under the 406(e) Emer-

gency Assistance program, plaintiffs withdrew their mo-

tion for a rule. In that case withdrawal from the 406(e)

program was sufficient to moot the controversy. This

Court should likewise recognize the Defendant’s option to

withdraw from the Federal Emergency Assistance pro-

gram and should recognize that the IDPA, in f

chosen that alternative. 3

The conclusions of law proposed in paragraphs 9, 10

11, 12, 13 and 14 are thus erroneous insofar as the State

of Illinois has ceased participating in the 406(e) program.

2. The proposed order erroneously seeks to interfere

with the Defendants’ decision to operate special needs

program for burnouts and other specified conditions.

. The Plaintiffs’ Complaint does not include any allega-

tions regarding the IDPA’s ability to maintain any spe

cific programs under § 402 and § 403 of the Social Secu-

rity Act. This Court has heard no argument on such

points, Yet the Plaintiffs seek to have this Court deter

mine relationships between these various Act sections (par-

agraph 11 of the Proposed Order) and declare violations

of § 402 (paragraph No. 12 of the Proposed Order). Such

conclusions“ are not only based upon matters not prop.

erly brought before this Court, but also are immaterial to

the action.

The action was brought in relation to the DPA

406 (e) program. Such program does not now exist. To

effect other actions, a new action (or at the least an

amended complaint) would be necessary. Plaintiffs have

chosen, and declared their intention, not to amend their

Complaint.

100

3. The paragraphs in the ‘‘Ordered and Decreed’’ por-

tion of — order are each unacceptable as they are

based upon improper legal chnelusions.

Paragraph A is based upon the assumption that a 406( e)

program is still being maintained. This assumption is

false and misleading.

Subparagraph 1, 2, 4 and 5 thereof seek to order the

IDPA to create a new §406(e) program. Such an order

would be contrary to the Court of Appeals’ clear state-

ment the State may choose not to operate a 406(e) pro-

— B of the proposed order secks to order HEW

to change its ruling and procedures on § 406(e). As there

is currently no 406(e) program in Illinois, any consider-

ation of such an order would be erroneous, as there exists

no case or controversy, at least until IDPA should later

decide to recreate a § 406(e) program, should it so choose.

Paragraphs C and DD of the proposed order seek to man-

date the granting of emergency assistance’? by IDPA.

To the extent that this paragraph relates to a 84060)

program, it is improper for the reasons stated above. If

this paragraph is not based on § 406(e) but is hased on an

alleged state law requirement, it is inappropriate insofar

as this Court declined pendent jurisdiction over state law

questions.

Paragrapu F of the Proposed Judgment Order seeks to

bind Defendants’ attorneys. Defendants’ attorneys are

Special Assistant Attorneys General, and as such are oon.

stitutional officers of the State of Illinois. Therefore, this

portion of Paragraph F is completely inappropriate and

must be stricken.

Defendants do not object to the entry of Paragraph G,

and respectfully state that such an order, stating the

101

Court's continuing jurisdiction, is the sole order neces.

sary and proper to effectuate the Court’s December 31st

1975 ruling in the present situation. Should the situation

change, this Court may enter such orders in the future as

are appropriate.

The Court of Appeals has ruled upon the IDPA’s pro-

gram as it existed prior to November 24, 1975. The Defend.

ants have no intention of acting irresponsibly or in bad

faith and will not reinstate a § 406(e) program prior to

the next status call within prior notice to the Court.

This Court may wish to consider the entry of an Order,

a portion of which declares that said Order is only bind

ing upon state officials insofar as they claim funds un-

der 42 USC § 406(e). However. it is the Defendants’ con-

tention that the Court need only maintain continuing ju-

risdiction of the matter at this time. ¢ ‘early, as long as

the State of Illinois does not claim monies under this see

tion of Title 42, any order which directs them to resur-

rect and maintain such a program is contrary to the law

of this case.

Respectfully submitted,

/s/ WILLIAM J. SCOTT

WILLIAM J. SCOTT

Atterney General of Illinois

GEORGE L. GRUMLEY

Special Assistant

Attorney General

(Of Counsel)

100 North LaSalle Street

Suite 1600

Chicago, Illinois 60602

341-4693

102

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

[Caption omitted printing.]

FEDERAL DEFENDANT'S OBJECTIONS

TO PLAINTIFF'S PROPOSED

FINAL JUDGMENT

As a preliminary matter, the federal defendant objects

to the entry of any further orders or decrees in this matter,

other than an order dismissing this cause as moot. It is

uncontested that the Illinois Department of Publie Aid is

no longer requesting reimbursement from the Department

of Health, Education and Welfare for funds expended un-

der Section 406(e) of the Act, 42 U.S.C. § 606(e). The

matter is moot.

Objections to Proposed Findings and Conclusions

Besides the fact that this cause is moot and that the

cause has not been remanded by the Court of Appeals for

further action, the federal defendant’s main objection to

the plaintiffs’ proposed final judgment is that it asks this

Court to rule on issues that were never presented to it

and on which it has heard no evidence. This point is ob-

vious from a consideration of paragraphs 11 and 13 of

the plaintiffs’ proposed conclusions of law. Those para-

graphs read:

11. Congress, in 88 406(e) and 403(a)(5) of the Act,

has determined the terms of eligibility and funding for

an emergenev assistance program. The state defend.

ants’ effort to avoid the eligibility standards of

§ 406(¢) by claiming funding for emergency assistance

103

from funds available for AFDC or for any other fed-

erally funded program is contrary to the clear intent

of the Act and a violation of § 406(e)(1).

* * *

13. Defendant H. E. ., furthermore, may not ap-

prove or fund a state’s emergency assistance program,

whether designated as a‘‘ special need’’ or otherwise,

except as authorized by § 406(¢). (Emphasis added.)

By insinuating these paragraphs into their proposed fi-

nal order, plaintiffs are asking this Court to define the

permissible scope of the Aid to Families with Dependent

Children (AFDC) program, 42 U.S.C. § 6006 (h), by ruling

that certain types of aid are not included in that program.

Such a ruling on the AFDC program is totally inappro-

priate for several reasons. The complaint, as amended, does

not challenge the AFDC program. Additionally, the plain-

tiffs are asking this Court to rule on the validity of a pro-

gram under AFDC that is not in existence and that has

not even been submitted for approval ‘to the Department

of Health, Education and Welfare. Thus, there is no con-

troversy before this Court concerning any new Illinois

AFDC program; and there may never be, Yet, plaintiffs

seek to have this Court enjoin the Department of Health,

Education and Welfare’s approval and funding of pro-

grams that have not been submitted for approval.

Objections to the Proposed Decree

The introductory part of paragraph A of the proposed

decree suffers from the same deficiencies as the proposed

conclusions of law. The question of whether a regular

state AFDC program can provide assistance if, for ex-

ample, a burnout occurs, has not been put in issue in the

pleadings and no concrete factual situation has been pre

sented to the Court.

104

The numbered subparagraphs of paragraph A seek to

have this Court, in effect, order the State to adopt an

emergency assistance program. There is no legal basis

for requiring the State to adopt such a program.

Paragraph B of plaintiffs’ proposed decree is also im-

proper. In that paragraph, plaintiffs seek an injunction

against possible, vaguely defined future action of the De-

partment of Health, Education and Welfare. The use of

the drastic remedy of permanent injunction is not nec-

essary. This Court, if it enters an order other than an

order for dismissal, will presumably declare the now de-

funct Illinois emergency assistance program to be in-

valid. If such an order is entered and becomes effective,

the Department of Health, Education and Welfare will

comply with it. Plaintiffs seek far more than compliance

with the Court of Appeals determination that the Illinois

emergency assistance program was invalid. Plaintiffs seek

a purely advisory ruling and injunction that any state

program under any section of the Social Security Act that

provides what plaintiffs term ‘‘emergency assistance’’ is

invalid.

In subparagraph 1 of paragraph B, plaintiffs seek to

have this Court order the Secretary of the Department of

Health, Education and Welfare to promulgate new regu-

lations. This Court has no authority to order the perform-

ance of a discretionary act, such as the adoption of any

particular regulation.

105

Conclusion

The federal defendant has applied to the Court of Ap-

peals for the Seventh Circuit for an order recalling its

mandate and vacating its prior order for mootness. If

the Court of Appeals grants our petition, this Court need

not act. If that petition is denied, the federal defendant

is likely to petition for a writ of certiorari to have the

Supreme Court declare this cause to be moot. We suggest

that this Court withhold action pending ruling by the

appellate tribunals.

Respectfully submitted,

/s/ SAMUEL K. SKINNER

SAMUEL K. SKINNER

United States Attorney

[Affidavit of service omitted in printing.]

106

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Name of Presiding Judge, Honorable Thomas R. MeMillen

July 12, 1976

73 C2453

Mandley v. Trainor

Defendant’s motion to dismiss for mootness is granted,

and this cause is dismissed for lack of case or controversy.

IN THE

UNITED STATES DISTRICT COURT

NORTHEEN DISTRICT OF ILLINOIS

EASTERN DIVISION

[Caption omitted in printing.]

TRANSCRIPT OF PROCEEDINGS

had in the above-entitled cause before the HONORABLE

THOMAS R. MeMILLEN, one of the Judges of said Court,

in his courtroom in the United States Courthouse, Chicago,

Illinois, on Monday, July 12, 1976, at the hour of 10:00

o’clock a.m.

THE CLERK: 73 C 2543, MANDLEY vs. TRAINOR;

status report.

MR. LEFKOW: May it please the Court, we are here

today for a hearing that your Ilonor offered the plain-

tiffs on whether or not to amend the complaint. Your

Honor will recall we were before you last Friday. We filed

a memorandum of law. There was colloquy between the

Court and counsel on certain various points.

107

I only have three basic points to make today, and part

of them to respond to some inquiries your Honor made

on Friday.

THE COURT: Let me say that I have got a number of

as matters. I will pass this to the end of the 10:30

call.

(Whereupon the Court gave its attention to other

matters on its calendar, after which the follow-

ing further proceedings were had herein :)

THE CLERK: 73 C 2453, MANDLEY vs. TRAINOR.

MR. LEFKOW: Good morning, vour Honor. Michael

Lefkow on behalf of the plaintiffs.

MR. GRUMLEY: George Grumlex on behalf of the

State defendants.

MR. FILPI: Robert Filpi for the Secretary of Eduea-

tion and Welfare.

THE COURT: Good morning.

MR. LEFKOW : Your Honor, when you called the

case earlier, I started to say I had several brief com-

ments I wanted to make.

The first was on the point of whether the complaint

should be amended. It would be to offer to the Court a

copy of our amended complaint we filed. I think early in

1973 - ö

THE COURT: I have it. You can have this back be-

cause I have the record here. I have looked at it.

MR. LEFKOW: Thank you.

THE COURT: That is the problem. I don’t see how

you raise these issues that you talk about in this last

filing that you made the other day.

108

MR. LEFKOW: Well, your Honor, when the case was

litigated, it was litigated on the whole complaint. You

suggested on Friday it was litigated only on Section 406(e)

but an examination of the complaint would reveal that

many other sections are cited as being violated: Section

402, Section 403(a) (5).

For example

THE COURT: Well, you cite them, yes. As a matter

of fact, I was a little curious as to why you went on 406,

but that is what it was litigated on and that is what it

went to the Court of Appeals on.

Now the things that you raise are completely ancillary

to the amended complaint that you filed on December 20,

1973.

MR. LEFKOW: Well, your Honor, I cannot really

agree with that point, because we asked for a declaratory

judgment; that the program the department was main-

taining for emergency assistance violated both State and

Federal law. We didn’t limit it just to-406(e) and there

was never any intent. I don’t believe that a reading of

the Court of Appeals would reflect it.

The second point is that Mr. Grumley said Friday they

are claiming Federal funds or they could claim Federal!

funds as a special need apparently under the AFDC pro-

gram. Mr. Grumley’s statement is somewhat incoherent;

it is difficult to tell just what he meant.

But that is in direct conflict with Mr. Filpi’s statement

on Tuesday of last week when he categorically denied that

the Federal government was paying any funds for emer-

gency assistance to the State defendants.

So, it is a question of what are the facts. We don’t even

know what the facts are before the Court. I don’t know

the facts, Mr. Grumley doesn’t know the full facts.

109

MR. GRUMLEY: That is not true, vour Honor.

MR. LEFKOW: Mr. Filpi doesn’t know the full facts,

and his statements are nothing but unsworn assertions of

counsel.

I don’t want to reargue the point on asking for Mr. Train-

or’s deposition, but if the Court is going to make a final

disposition of this case, I think it ought to fully and fairly

have all the facts before it, and not just statements of

counsel.

THE COURT: Well, the only final disposition I was

prepared to make, and | still am, is that the issue under

406 and the issue that was tried in this case and the issue

that went to the Court of Appeals is no longer an issue.

There is no longer any case or controversy on it.

Now you filed a document on July 6th in whieh you

raised some ancillary matters in which you believe that

the State is going around through the back door attempt-

ing to avoid the requirements of 406 and 402, and in various

other ways trying to put in this program in a different

way than was litigated, but that is not in vour complaint.

What I have been saying all along, Mr. Lefkow, is if

you want to raise those issues, plead them. Then if you

want to take Mr. Trainor’s deposition and find out if he

is violating his duty by taking government money under

false pretenses, we will go into that.

MR. LEFKOW: Well, vour Honor, I believe that

there is a presumption that everything is tried that is in

the complaint, and nothing less than the full complaint

is tried unless the Court expressly limits the issues at

trial. There was no express limitation of this issue.

I wonder, your Honor, why we spent, why this Court

spent three years and I as an attorney for the plaintiffs

110

spent three years litigating an issue, and then they try

to pull the rug out from underneath everybody and say

we have a different program. Why didn’t they say that

first? Why did they hire one of the top law firms in the

City of Chicago and State of Illinois and probably spent

as much in fees as they were spending on emergency as-

sistance? What have we been doing here for three years

if they can do a maneuver like this? That is what I think

it is, your Honor.

The Court can treat it as an equitable matter and say

this is unconscionable. Your Honor said, I remember,

in December, I don’t think what the defendants are doing

is commendable, and I will rule on the merits.“

THE COURT: On the merits of what?

MR. LEFKOW: That was on their motion to dismiss,

and vour Honor denied their motion to dismiss.

We pled in our answers to their motion to dismiss this

fund-searching scheme. 1

—

Mr. Filpi took it up or other associates took it up to the

Court of Appeals to try to get the Court of Appeals’

decision vacated and get an order directing your Honor

to dismiss the complaint. The Court of Appeals, your

Honor, refused to do that.

Now, I think that that says the Court of Appeals is

putting a stamp of validity upon this complaint. It did in

its opinion and it did in its refusal to vacate its opinion.

THE COURT: You know as well as I do what the

Court of Appeals said about Section 406, and that is

exactly what happened. The State abandoned it.

MR. LEFKOW: Well, did they abandon it. your Honor?

THE COURT: Yes, they did.

111

MR. LEFKOW: Wen, how do we know that’

Mr. Grumley six months -

MR. GRUMLEY: I know what I said.

THE COURT: I don't know whether you know it or

not, but I know it. That is why | say I was prepared to

rule that the complaint is moot.

Now, if you want to file an amended complaint, if vou

want to accuse the State, which vou have a right to do,

doing this under some kind of fraudulent or dishonest or

overt action in another program, in my opinion vou should

file an amended complaint. That is what | asked vou to

do today if you wanted to do it.

I don’t think you hove alleged it in your amended com.

plaint that we tried. As far as T am concerned, that com—

plaint is dead.

MR. LEFKOW: Well, your Honor, we alleged, I re

member specifically, in Paragraph 42 that the Depart

ment of Health, Education and Welfare was funding a

program for the State of Illinois for emergeney assist

ance that violated Federal and State law, and we cited

the law. It was not just limited to Section 406(c¢). 1 re

member when I was before von on Monday, you said,

Lou only asked for relief under Section 406, didn’t vou,

Mr. Lefkow?’’ I said, ‘*No, vour Honor.“

I didn't say it in so many words. I said, Na, vour

Honor. Again, I sav no, we didn't ask for relief under

406(e).

We asked for relief for violations of Federal and State

law under the whole Social Security Act, whatever is ap

plicable, which would be Sections 402, 408(a)(5) and

406(e).

112

So, I thought I answered your Honor’s point on this.

I don’t see how we can have a much broader complaint

in this case. It pleads a notice pleading. In a case like

this, they know what they are doing and they know what

type of subterfuge it is. They haven't denied that they

are claiming Federal funds. It should be watched if they

are claiming Federal funds.

Was your Honor able to find the specific paragraph?

THE COURT: Oh, yes. I read your amended complaint

immediately after you said you thought that it covered

this new situation that has developed in the last six

months. I have it right here. I just don’t think that the

amended complaint covered it.

You cite a half dozen sections of the statute and a half

dozen regulations, but that isn’t what vou litigated and

you know vou didn’t litigate it.

MR. LEFKOW: Well, your Honor, I must disagree

with that. I believe that everything that is in the com.

plaint is litigated.

THE COURT: You litigated the program that was

under Section 406.

MR. LEFKOW: Well, your Honor, 406 just defines

what emergency assistance is.

THE COURT: That is right. You went under a defi-

nition section.

MR. LEFKOW: Yes, your Honor, but at the top of

the definition section, it says ‘‘ when used in this part’’ and

the part it refers to, your Honor, is Section 402(a) of

the Social Security Act.

Now, Section 402(a) commences with Section 401, which

is an appropriation authorization and the public purposes.

113

Section 402 says that a State plan for aid and services

to needy families with children must meet the following

requirements, about 28 of them.

THE COURT: That is right.

MR. LEFKOW: So, now, what we have said in our

complaint, your Honor, is that when they give emergency

assistance out, and it is defined in the Federal regulation,

it must be given out pursuant ‘> plan under Section 402.

That plan under 402(b) must be approved by the Seere-

tary of the Department of Health, Education and Welfare.

Now, when the Secretary has approved that plan, then

the Secretary of the Treasury may, pursuant to Section

403(a)(5), which is the appropriation statute, pay from

the Treasury of the United States to the Illinois Depart-

ment of Public Aid or the State of Illinois Federal funds

for the purposes of emergency assistance. That, vour Hon—

or, is the statutory scheme, and that is what we alleged

in the complaint, and we believe that that was what was

tried by this Court and reviewed by the Court of Appeals.

We believe the Court of Appeals said if they are claim-

ing Federal funds for emergency assistance purposes, they

cannot maintain a discriminatory regime where they give

emergency assistance to some needy families but they

don't give it to other needy families.

This text is long and has been trimmed here. Open the source document for the complete record.

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