# Appendix — Quern v. Mandley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1712%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 436 U.S. 725 ## Text 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 .......... 46 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 r cccccsececes 66 e è SE SESS PPPOE ETE oe 72 r cc ccceccces 76 , / ‚’TÄ⅛Ä e . 77 e ůͤͤͥͤů A eee 79 D , .o eee 80 eee .es ee eee 81 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 3 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 12-1-75 12-2-75 12-4-75 12-9-75 12-10-75 12-12-75 12-17-75 4 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 2-9-76 2-9-76 2-9-76 5 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, J. 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 6 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 5-19-76 5-21-76 5-24-76 6-2-76 6-18-76 6-21-76 - i 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, J. 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 7-9-76 7-9-76 7-9-76 7-12-76 7-13-76 7-21-76 7-27-76 7-28-76 8 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 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 12-10-76 12-10-76 12-15-76 12-21-76 12-27-76 12-27-76 12-27-76 10 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 11 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 3-14-77 3-15-77 3-28-77 3-30-77 4-25-77 4-26-77 6-8-77 12 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. 13 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. 15 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. 16 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. 17 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 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. 19 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. 20 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 21 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. 23 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. 24 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). to 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 26 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. 1. te 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. 30 United States Court of Appeals for the Seventh Circuit Nos. 75-1083, 75-1245 Vexvs MANDLEY FT ., PLAINTIFFS-APPELLANTS v. 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. 31 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. 32 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 33 (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 (c) Meeting immediate, emergent needs for other 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. 34 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- 35 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. 37 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. 38 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- 39 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 40 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 41 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 43 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. 44 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). 45 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). 46 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: 47 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, 48 : , 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. = 50 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 51 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- 53 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. ; (c) Pending compliance by H.E.W. with Paragraph B (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). 54 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 55 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. 57 (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 61 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: 67 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. 68 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: 70 (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; (c) Whether the state defendants’ emergency assist- 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 — 71 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 72 EXHIBIT 1 10-30-75 I. STATUS OF LITIGATION A. The Federal District Court ruled that the Scope of C. 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- 74 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. 6. 75 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 76 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. 77 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. 78 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. 79 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. 80 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 81 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.] 82 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 — 83 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? 84 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? ee — — 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 87 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1712%3A02. Public record. Not legal advice.