Appendix — Miller v. Youakim

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APP 12 1978

APPENDIX L_MICHAEL RODAK, JR, CLER

IN THE

Supreme Court of the United States

Ocroser Term, 1977

No. 77-742

JEROME MILLER, ET. AL.,

Appellants

v.

MARCEL YOUAKIM, ET. AL.,

Appellees.

On Appeal From the United States Court

of Appeals for the Seventh Circuit

JURISDICTIONAL STATEMENT FILED NOVEMBER 23, 1977

PROBABLE JURISDICTION NOTED FEBRUARY 21, 1978

Keenan Printing Company 312-648-0050 Gi 365

INDEX

ITEM Paces

Chronological List of Relevant Docket Entries ......

Second Amended Complaint Verified for Injunctive

Relief, filed January 21, 1974 .............

Defendants’ Motion to Strike and Dismiss Complaint

to Stand as to Second Amended Complaint, Filed

DUETS De TU 66 6b 6656s Cab CUeceeccccvseweueses

District Court Opinion, entered February 28, 1974

(This Opinion is printed in the Jurisdictional

Statement as Appendix E)

Order of the Supreme Court of the United States

granting motion for leave to proceed in forma pau-

peris and noting probable jurisdiction, March 17,

SEG; knkdeseeinccenkicekdedssseceueessaweeeuess

Opinion of the Supreme Court of the United States,

entered March 31, 1976

(This Opinion is printed in the Jurisdictional State-

ment as Appendix D)

Plaintiffs’ Motion for Preliminary Judgment and

Summary Judgment, filed June 10, 1976 ..........

Exhibit C: Department of Health, Education and

Welfare Social and Rehabilitation Service, Pro-

gram Instruction, October 25, 1974 ............

Exhibit D: Memorandum for the United States as

BS TD ds skh en nncncetccuneousteeeenses

Defendants’ Cross Motion for Summary Judgment,

SC MEE «0.04600 4eue¥annees semunieeces

District Court Opinion, entered August 24, 1976

(This Opinion is printed in the Jurisdictional State-

ment as Appendix C)

41

43

51

57

ii.

ITEM Pace

Court of Appeals Opinion, entered September 27, 1977

(This Opinion is printed in the Jurisdictional State-

ment as Appendix B)

Defendants’ Notice of Appeal to the Supreme Court of

the United States, filed November 3, 1977

(This Notice is printed in the Jurisdictional State-

ment as Appendix F)

Order of the Supreme Court of the United States

noting probable jurisdiction, entered February 21,

RTE eR ey ee er ee ee 59

Supreme Court of the United States

Ocroser Term, 1977

No. 77-742

JEROME MILLER, ET. AL.,

Appellants

v.

MARCEL YOUAKIM, ET. AL.,

Appellees.

On Appeal From the United States Court

of Appeals for ths Seventh Circuit

2

CHRONOLOGICAL LIST OF RELEVANT

1/21/74

4/ 2/73

4/16/73

5/25/73

2/28/74

4/23/74

3/24/75

4/ 7/76

4/30/76

5/ 7/76

DOCKET ENTRIES

Filed Plaintiffs’ Second Amended Complaint

Verified for injunctive relief.

Filed Defendants’ notice of filing motion with

Motion to Strike and Dismiss Complaint. (To

stand as to Second Amended Complaint.)

Filed Plaintiffs’ Motion to Convene Three-Judge

District Court.

Filed Order Designating the Honorable John

Paul Stevens, Circuit Judge, Honorable Abra-

ham L. Marovitz, District Judge, and Honor-

able Philip W. Tone, District Judge to serve as

members of a Three Judge Court.

Enter Memorandum of Decision (draft) Tone, J.

Filed Notice of Filing; Plaintiffs’ Notice of Ap-

peal to the Supreme Court of the United States.

pd/$5.00.

Filed certified copy of order of U.S.S.C. dated

March 17, 1975 noting probable jurisdiction.

Filed slip opinion from the Supreme Court of

the U.S. with attached letter.

Filed certified copy of order from U.S. Su-

preme Court. Judgment vacated with costs;

cause remanded to the United States District

Court for the Northern District of Illinois for

further proceedings in conformity with the opin-

ion of this Court with transmittal letter dated

April 28, 1976.

Enter order dated May 3, 1976: It appearing

that this cause has been remanded for further

proceedings and the cause was assigned to the

6/11/76

6/10/76

6/14/76

7/30/76

8/24/76

8/25/76

3

Calendar of Judge Tone who is no longer a

judge of this Court, therefore, IT IS HEREBY

ORDERED that this cause be reassigned by lot

according to the rules. (JUDGE KIRKLAND)

— Parsons, J.

Enter order dated June 10, 1976: Agreed mo-

tion for leave to file briefs in excess of 15 pages

is granted. Brief for appellants, orief and argu-

ments for defendant-appellees, reply brief for

appellants and appendix previously filed in the

Supreme Court are hereby filed in this court.

Kirkland, J.

Filed plaintiffs’ motion for preliminary injunc-

tion and for summary judgment.

Filed defendants’ notice of filing motion with

motion for summary judgment.

Enter order dated 7/27/76: Enter Memorandum

Opinion and Order: Plaintiffs’ motion for sum-

mary judgment is granted. Since plaintiffs have

prevailed on the statutory issue, it is unneces-

sary for this Court to reach the equal protec-

tion issue. (Draft) - KIRKLAND, J.

Filed defendants-appellants’ notice of filing

and proof of service of notice of appeal with

notice of appeal attached.

Enter order dated August 24, 1976: Enter judg-

ment and order. Ill. Revised Statutes Chapter

23 §§ 2212.17 and implementing policies and

procedures of the Illinois Department of Chil-

dren and Family Services are contrary to 42

USC §§ 601 and 609 (sic.), implementing federal

regulation and Department of HEW, etc., and

are therefore invalid under the Supremacy

9/ 2/76

9/ 2/76

9/27/77

11/ 3/77

2/21/78

4

Clause of the United States Constitution, Art.

VI Cla. 2 insofar as they exclude from eligibil-

ity or deny ‘‘full AFDC-F payments, etc.,

(DRAFT) Kirkland, J.

Filed Notice of Motion & Defendants’ Motion

for stay of enforcement pending appeal.

Enter order dated 9/2/76: Defendants’ Motion

for stay of enforcement pending appeal is de-

nied. - KIRKLAND, J.

Enter Opinion of Court of Appeals for the

Seventh Circuit affirming District Court Order

with slight modification.

Filed Notice of Filing; Defendants’ Notice of

Appeal to the Supreme Court of the United

States.

Supreme Court of the United States noted prob-

able jurisdiction in this case. Mr. Justice Ste-

vens took no part in the consideration or de-

cision in this matter.

5

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARCEL YOUAKIM and LINDA)

YOUAKIM individually and as fos- |.

ter parents, TIMOTHY ROBERT-

SON, a minor, by his sister and next

friend LINDA YOUAKIM, MARY

LOU ROBERTSON, a minor, by

her sister and next friend LINDA

YOUAKIM, LARRY ROBERT-

SON, a minor, by his sister and next

friend LINDA YOUAKIM, and

SHERRY ROBERTSON, a minor,

by her sister and next friend LIN-

DA YOUAKIM, and all others simi-

larly situated,

Plaintiffs,

vs.

JEROME MILLER individually and

as Director of the DEPARTMENT

OF CHILDREN AND FAMILY

SERVICES and the DEPART-

MENT OF CHILDREN AND

FAMILY SERVICES, of the

STATE OF ILLINOIS,

Defendants. |

Civil Action No.

73 C 635

> Three-J udge Court

Requested

SECOND AMENDED COMPLAINT VERIFIED FOR

INJUNCTIVE RELIEF

PRELIMINARY STATEMENT

6

1. This is a civil rights class action wherein Plaintiffs

seek a permanent injunction barring the State Director

of the Illinois Department of Children and Family Serv-

ices and his successors, employees, or agents, and all other

persons in active concert and participation, from en-

forcing, applying, or executing Illinois Revised Statutes,

Ch. 23, §§ 2212.05 and 2212.17 (1971) and Illinois Depart-

ment of Children and Family Services Placement Manual,

Ch. 3, § 5 at 95 through 97 (1972) as written, because said

statutes and regulations violate equal protection of the law

as guaranteed the Plaintiffs by the 14th Amendment to the

United States Constitution. Said statutes and regulations

authorize federally-subsidized foster care payments for

foster parents who are unrelated to their foster children

but deny said payments to Plaintiffs, who are foster par-

ents of minor wards of the State—foster children—related

to them.

JURISDICTION

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

§ 1343(3), (4) which provide for original jurisdiction of

this Court in all suits authorized by 42 U.S.C. § 1983 to

redress the deprivation under color of State law of any

right, privilege or immunity secured by the Constitution

of the United States.

3. This suit concerns the denial by Defendants of equal

protection of the law as guaranteed the Plaintiffs by the

Fourteenth Amendment to the United States Constitu-

tion.

THREE-JUDGE COURT

4. This is a proper case for determination by a three-

judge court pursuant to 28 U.S.C. § 2281, 2284 since Plain-

7

tiffs seek an injunctio:. to restrain the Defendant, who is

a state officer, from the enforcement, application and exe-

eution of State statutes (Ill. Rev. Stats., Ch. 23 $$ 2212.05,

2212.17) and regulations (Illinois, Department of Children

and Family Services Placement Manual, Ch. 3, § 5 at 95

through 97), of state-wide applicability on the grounds

that said statutes and regulations are in violation of the

Constitution of the United States.

PLAINTIFFS

5. Plaintiffs, Marcel Youakim and Linda R. Youakim,

husband and wife, are citizens of the United States and

have been residing in Des Plaines, Cook County, Illinois,

since 1970. They are and have been the foster parents of

Linda Youakim’s brother, Timothy Robertson since Janu-

ary 7, 1972, and of her sister, Mary Lou Robertson since

May 20, 1972. Plaintiff Marcel Youakim is related to

Timothy and Mary Lou only by marriage.

6. Plaintiff, Timothy Robertson, is a minor citizen of

the United States and has been living with his foster

parents, Marcel and Linda Youakim in Des Plaines, Cook

County, Illinois, since 1972. He is eight years old and a

ward of the State of Illinois.

7. Plaintiff, Mary Lou Robertson, is a minor citizen

of the United States and has been living with her foster

parents, Marcel and Linda Youakim in Des Plaines, Cook

County, Illinois, since 1972. She is ten years old and a

ward of the State of Illinois.

8. Plaintiff, Larry Robertson, is a minor citizen of the

United States and is and has been living in foster care

facilities in the State of Illinois since May, 1969. He is

thirteen years old and a ward of the State of Illinois. He

does not now live with any other members of his family.

8

9. Plaintiff, Sherry Robertson, is a minor citizen of the

United States and is and has been living in foster care fa-

cilities in the State of Illinois since May, 1969, She is

fifteen years old and a ward of the State of Illinois. She

does not now live with any other members of her family.

STATUTES AND REGULATIONS CHALLENGED

10a. Illinois law generally provides for payments to

foster parents who care for children who are wards of

the State. The homes of such foster parents are defined

by statutes which state in relevant part:

‘Facility for child care” or ‘‘child care facility”

means any person, ... who or which receives or ar-

ranges for care of placement of one or more children,

unrelated to the operator of the facility. Dept. of

Children and Family Services. Ill. Rev. Stats., Ch. 23,

§ 2212.05 (1971)

and

‘*Foster family home” means a facility for child care

in residences of families who receive no more than

8 children unrelated to them,....

Ch. 23, § 2212.17 (emphasis added) (Entire texts set

out in Appendix A.)

The statutory scheme does not provide for payments to

foster parents caring for minor wards of the State who

are related to them.

10b. Regulations of the [linois Department of Chil-

dren and Family Services provide for payments to foster

parents who care for children unrelated to them who are

wards of the State. The regulatory scheme does not pro-

vide for foster parents caring for minor wards of the

State who are related to them. The policy of non-payment

to foster parents caring for children related to them states

in relevant part:

9

The Department has no statutory authority to pay

relatives for care of children. Ill. DCFS Placement

Mannal, Ch. 3 § 5 at 97 (Entire text set out in Ap-

pendix F.)

The regulations however provide that payments may

be made to foster parents caring for children related to

them at an amount equal to those mede to foster parents

caring for children unrelated to them, as an exception to

policy. (See Appendix F)

DEFENDANTS

11. Defendants, Jerome Miller, is the director of the

Department of Children and Family Services. As such,

he is the state official responsible for administering the

Department of Children and Family Services Act which

contains the challenged statutes and authorizes the chal-

lenged regulations, and for supervising the day-to-day

operation of said Department.

12. Defendant Illinois Department of Children and

Family Services acting pursuant to State law, and its

Director, Jerome Miller, perform the following functions,

inter alia:

a) established rules and regulations concerning’...

foster care;

b) accept for care and placement in foster homes

children adjudicated wards of the state;

¢c) inspect and license foster homes;

d) authorize payment to foster parents caring for

children unrelated to them.

Ill. Rev. Stats., 1971, 723 § 5005(4) (Statutes

set out more fully in Appendix B.)

10

CLASS ACTION

13. The named Plaintiffs bring this action on their

own behalf and, pursuant to Rule 23(a), (b)(2) of the

Federal Rules of Civil Procedure, on behalf of all other

persons similarly situated. The members of the class

similarly situated are:

(i) all persons who maintain foster children re-

lated to them in their home and are refused full

foster care payments because of said statutes

and regulations.

(ii) all wards of the State (foster children) placed

in the homes of foster parents to whom they

are related and who are denied payments be-

cause of said statutes and regulations.

(iii) all wards of the State (foster children) unable

to live with their relatives who cannot afford

to accept them as foster children without full

State subsidy—the same State subsidy as they

receive while placed with non-relatives.

The requirements of Rule 23 are met in that: the class

is so numerous that joinder of all members is unpracti-

cable; there are questions of law and fact common to the

class; the claims of the representative party are typical

of the claims of the class; the representative party will

fairly and adequately protect the interests of the class;

and the party opposing the class has acted on grounds

generally applicable to the class, thereby making appropri-

ate injunctive relief with respect to the class as a whole.

FACTS

14. Plaintiffs Timothy, Mary Lou, Larry and Sherry

Robertson, were made wards of the State of Illinois in

May, 1969; and categorized by State officials to be foster

children.

11

15. As a result of the classification of the children

as foster children, they have been and are now placed

in various State approved foster homes and foster care

institutions.

16. Each of the State approved homes and foster care

institutions receives foster care payments for caring for

said children, except that Plaintiffs Youakim do not

receive State foster payments.

17. On or about January 7, 1972, the home of Plain-

tiffs Marcel and Linda Youakim was approved by the

Defendants as a proper placement facility and said Plain-

tiffs, related foster parents, accepted for foster care,

Plaintiff Timothy Robertson.

18. In the progress of getting their home licensed as

a State-approved foster care facility, Plaintiffs, related

foster parents asked a social worker employed by Defend-

ants Miller and the Illinois Department of Children and

Family Services at the Defendants’ offices at 4320 West

Montrose, Chicago, illinois, whether they would receive

regular foster care payments.

19. The social worker at that time told Plaintiffs they

would not receive the regular foster care payments because

the law and policy denies these payments to related foster

parents. Upon consultation with their counsel, Plaintiffs

believe the foregoing to be an accurate statement of the

Illinois law and policy.

20. Notwithstanding Defendants’ refusal to grant the

regular foster care payments to Plaintiffs, Defendants

tendered, and Plaintiffs on January 7, 1972 entered into,

a form ‘‘Home Placement Agreement,” and accepted Tim-

othy for foster care. A copy of this agreement is attached

hereto and made part hereof (Exhibit I). The agreement

was signed by all parties.

12

21. Said Home Placement Agreement is identical to

that used by Defendants in approving and subsidizing ap-

proved foster homes, except as follows:

(i) The paragraph which provides that foster par-

ents will be subsidized has been crossed out.

(ii) The word ‘‘foster” has been crossed out in thir-

teen places.

(iii) The word ‘‘relatives” is inserted in two places.

(See Exhibit I).

22. On or about May 20, 1972 Plaintiff, minor ward of

the State, Mary Lou Robertson, was similarly accepted

for foster care by Plaintiffs Marcel and Linda Youakim,

related foster parents.

23. Plaintiff related foster parents are informed and

believe that their foster daughter, Plaintiff Mary Lou

Robertson, has been removed from several foster homes

during the past three years, and further, that Mary Lou

is considered to have a ‘‘behavior problem” which is the

cause of frequent moves.

24. It is Plaintiffs’ opinion that Mary Lou does not

have a behavior problem when living with them, and that

she is happy and well-adjusted in their home.

25. Plaintiff related foster parents are informed and

believe that they are providing their foster son Timothy

with foster care of a quality equal to or better than the

care he has received and would receive from foster parents

unrelated to him. The basis for the information and the

grounds for this belief are set out in the paragraphs fol-

lowing.

25(a) Plaintiff Timothy has difficulty breathing.

25(b) Prior to Timothy’s placement with his present

foster parents, Timothy said he had not received regular

medical care for his condition.

13

25(c) Plaintiffs Marcel and Linda Youakim have, at

great out-of-pocket expense, arranged for necessary med-

ical care including the removal of Timothy’s tonsils and

adenoids.

25(d) Timothy’s placement with Plaintiffs Youakim

as his foster parents is prima facie the best placement for

him because the guardian, Defendant Miller, has the legal

duty to provide foster home placement that is in the best

interests of the foster child. Presumably, the present

placement is the best one available.

26. Plaintiffs are informed and believe that they are

providing their foster daughter, Mary Lou with foster

eare of a quality equal to or better than the care she has

received and would receive from foster parents unrelated

to her. The basis for the information and the grounds

for this belief are set out in the following paragraphs:

26(a) Mary Lou’s teeth are not straight.

26(b) Prior to Mary Lou’s placement with her present

foster parents, Mary Lou said she had not received any

dental or orthodontic care for her condition.

26(c) Plaintiffs Marcel and Linda Youakim have ar-

ranged several trips to an orthodontist for necessary den-

tal care.

26(d) Mary Lou’s placement with Plaintiffs Youakim

as her foster parents is prima facie the best placement

for her because the guardian, Defendant Miller, has the

legal duty to provide foster home placement that is in the

best interests of the foster child. Presumably, the present

placement is the best one available.

27. Based on the above allegations, Plaintiffs believe

it is in the best interests of Timothy and Mary Lou to

live with them since, because they are related to their fos-

14

ter children, they are extraordinarily interested in their

welfare, and determined to provide them the best quality

eare possible.

28. Because of Defendants’ refusal to provide regular

foster care payments, Plaintiff related foster parents have

incurred substantially greater personal expense in caring

for the foster children than similarly situated unrelated

foster parents who receive the regular payments.

29. The amount of said expense borne by Plaintiff re-

lated foster parents has become so great that Plaintiffs

are informed and believe and fear that they will be un-

able to continue providing foster care for the foster chil-

dren unless Defendants grant payments in the amount

equal to that paid to unrelated foster parents.

30. The refusal of Defendants to provide regular foster

care payments to Plaintiff related foster parents has pre-

cluded Plaintiffs Youakim from even considering accept-

ing for foster care the other family members, Plaintiff

Larry Robertson (age 13) and Plaintiff Sherry Robertson

(age 15), both wards of the State presently residing in

other foster care facilities.

30(a) Sherry is presently placed with unrelated foster

parents.

30(b) Larry is presently placed in an orphanage.

31. Plaintiff related foster parents are informed and

believe that the best interest of all four children would be

served if they could all live together in a family setting.

Defendants’ refusal to grant Plaintiffs foster care pay-

ments makes this impossible.

32. To partially reduce the burden of the cost of caring

for the foster children, Plaintiffs Marcel and Linda Youa-

kim have, on the advice of a social worker employed by

Defendants, applied for and do now receive some child

15

support from the Cook County Department of Public

Aid. The amount of said welfare payments is about $123.04

per month for two foster children and is substantially

less than the amount of regular foster care payments,

about $210.00 per month, they would receive but for being

relatives.

33. The named Plaintiffs are informed and believe that:

33(a) Other members of the class are unaware of, or

unable to procure the partial Public Aid subsidy; and do

not now receive it;

33(b) The procedure for procuring a partial welfare

subsidy is far more complex, burdensom«, time consuming,

and uncertain than the simple and regular foster care

payment plan normally used by Defendants for unrelated

foster homes.

33(c) All applications to, and all receipt of welfare

payments frem the Cook County Department of Public

Aid have a certain stigmatizing effect on the applicant/

recipient, and this serves as a further deterrent to and

thus discrimination against acceptance of related wards

of the State for foster care. Plaintiffs Marcel and Linda

Youakim would greatly prefer to receive full foster care

payments from the Defendants rather than lesser welfare

payments from the Department of Public Aid. Since they

must seek and accept welfare payments to continue caring

for Timothy and Mary Lou, Plaintiffs feel embarrassed

and stigmatized in addition to being damaged by the dif-

ference in the amount.

33(d) Any difference in payment is damaging and dis-

criminatory, and deters potentially qualified foster parents

from accepting for foster care wards of the State related

to them.

16

34. On information and belief, part or all of the fund-

ing for the Illinois Department of Children and Family

Services and its foster care subsidy operators originate

with the Federal Government (Cf. Social Security Act,

Subchapter 4, 42 U.S.C. § 601 et seq. esp. § 625 and gen-

erally, Federal Child Welfare and Revenue Sharing Laws).

35. It is the policy of the United States to encourage

the care of children in their own homes or the homes of

relatives whenever possible. 42 U.S.C. 601. (Complete text

set out in Appendix C).

36. Plaintiffs are informed and believe that nothing in

the Federal law or regulations concerning foster care pay-

ments, bars said payments to related foster parents. 42

U.S.C. 608 (Complete text set out in Appendix FE).

37. It is the declared policy of the State of Illinois to

administer all its laws in the best interests of the children

of the State and to protect and promote the welfare of the

children, including the strengthening of their own families

wherever possible. Juvenile Court Act, Ill. Rev. Stats.,

1971 Ch. 37 § 701 et seq; Department of Children and

Family Services Act, Ill. Rev. Stats. 1971, Ch. 23 § 5001

et seq., esp. § 5005 (Appendices D and B).

38. Defendants’ denial of the foster care payments to

related foster parents conflict with the policy of the United

States and the State of Illinois set out in paragraphs 32

through 34 above.

FIRST CAUSE OF ACTION

39. Plaintiffs reallege and incorporate by reference

paragraphs 1 through 38 above.

40. Defendants, relying upon the statutes and regula-

tions set out in paragraphs 10(a) and 10(b), supra, refuse

17

to grant foster care payments to all persons, including

Plaintiffs, who meet all State standards for foster homes,

but who accept for foster care, or might accept for foster

eare, children—wards of the State—who are related to

them.

41. Defendants, by granting foster care payments to

qualified unrelated foster parents, and by refusing to

grant such payments to qualified related foster parents,

violate Plaintiff related foster parents’ right to equal pro-

tection as guaranteed by the United States Constitution.

42. By acting as described, supra, Defendants create

an invidious, arbitrary and capricious classification for

which there is no rational basis and which serves no com-

pelling State interest.

43. Defendant by refusing to grant foster care pay-

ments are causing immediate, irreparable, permanent and

increasing injury to Plaintiff related foster parents for

which there is no adequate remedy at law.

44. The challenged statutes and regulations are not

saved by the stopgap provision of partial welfare pay-

ments from the Department of Public Aid for the reasons

set out in paragraphs 33 and 34, supra.

SECOND CAUSE OF ACTION

45. Plaintiffs reallege and incorporate by reference

paragraphs 1 through 38 above.

46. Defendants’ action of granting foster care pay-

ments to qualified unrelated foster parents, and by re-

fusing to grant such payments to qualified related foster

parents, violates Plaintiff related foster children’s right

to equal protection as guaranteed by the United States

Constitution.

18

47. By acting as described, supra, Defendants create

an invidious, arbitrary and capricious classification for

which there is no rational basis and which serves no com-

pelling State interest.

48. Defendants by refusing to grant foster care pay-

ments are causing immediate, irreparable, permanent and

increasing injury to Plaintiff related foster children for

which there is no adequate remedy at law.

49. The challenged statutes and regulations are “

saved by the stopgap provision of partial welfare pay-

ments from the Department of Public Aid for the reasons

set out in paragraphs 33 and 34, supra.

THIRD CAUSE OF ACTION

50. Plaintiffs reallege and incorporate by reference

paragraphs 1 through 38 above.

51. Defendants’ action of granting foster care pay-

ments to qualified unrelated foster parents, and by refus-

ing to grant such payments to qualified related foster

parents, denies Plaintiff related foster children’s right to

equal protection by economically discriminating against

those members of the class of Plaintiffs’ children who

could live with otherwise qualified and willing relatives

but for the lack of State foster care payments. Foster

children whose qualified relatives can afford to care for

them without State payment, continue to receive the bene-

fits of close family associations. Such discrimination based

on wealth violates the Constitution of the United States,

and the policy favoring placement with relatives wherever

possible.

52. By acting as described, supra, Defendants create

an invidious, arbitrary and capricious classification for

which there is no rational basis and serves no compelling

State interest.

19

53. Defendants by refusing to grant foster care pay-

ments are causing immediate, irreparable, permanent and

increasing injury to Plaintiff related foster children for

which there is no adequate remedy at law.

04. The challenged statutes and regulations are not

saved by the stopgap provision of partial welfare pay-

ments from the Department of Public Aid for the reasons

set out in paragraphs 33 and 34, supra.

PRAYER FOR RELIEF

55. Wherefore, Plaintiffs, on behalf of themselves and

all others similarly situated respectfully pray:

00(a) That this Court assume jurisdiction of this cause

and receive Plaintiffs’ application for a Three-Judge Dis-

trict Court pursuant to 28 U.S.C. Sees. 2281, 2284;

95(b) That this Court immediately notify the Chief

Judge of this Circuii of the application to convene a Three-

Judge District Court pursuant to 28 U.S.C. Sees. 2281,

2284;

d0(c) That a Three-Judge District Court be convened

to hear and adjudicate all questions in the cause;

90(d) That the Three-Judge District Court determine

by order, pursuant to Rule 23(c)(1) of the Federal Rules

of Civil Procedure, that this action be maintained as a

class action;

dd(e) That the Three-Judge District Court enter a

final judgment permanently enjoining the State Director

of the Illinois Department of Children and Family Serv-

ices, and his successors, employees, or agents, and all other

persons in active concert and participation, from enfore-

ing, applying, or executing Ill. Revised Statutes, Ch. 23,

§ 2212.05 and § 2212.17 and Illinois Department of Children

20

and Family Services Family Placement Manual, Ch. 5

§ 3 at 95 through 97 as written because said statutes and

regulations violate equal protection of the law as guar-

anteed by Plaintiffs by the Fourteenth Amendment to the

Constitution of the United States.

55(f) That the Three-Judge District Court order such

other relief as may be deemed just, including the costs of

this action, and reasonable attorneys fees.

Respectfully submitted,

MARCEL YOUAKIM

LINDA YOUAKIM

MARY LOU ROBERTSON (a minor)

TIMOTHY ROBERTSON (a minor)

LARRY ROBERTSON (a minor)

SHERRY ROBERTSON (a minor)

/s/ Patrick A. Keenan

Attorney for Plaintiffs

Of Counsel: Bogdan Martinovich ’74

De Paul University College

of Law

[Affidavit of Verification Omitted]

EXHIBIT I

State of Illinois

DEPARTMENT OF CHILDREN AND FAMILY

SERVICES

Division of Child Welfare

RELATIVE HOME PLACEMENT AGREEMENT

Date of Placement 1/7/72

21

The Division of Child Welfare, Department of Children

and Family Services, has approved the home of Mr. and

Mrs. Marcel Youakim, address 1720 Mannheim Rd., Des

Plaines, Ill., for the care of a foster child: Name: Tim-

othy Robertson, Born 5/1/65.

The district worker will visit the above home in order to:

Know the child and keep informed regarding his ad-

justment.

Assist the * * * family and the child in problems that

may arise.

Discuss information regarding the child’s family and

background in order to assist the * * * family in under-

standing and helping the child.

Plan for meeting the clothing, medical care, and other

needs of the child.

Discuss any changes in planning for the child.

The Department has the right and authority to remove

the child when it appears that this is in his best interests,

and agrees to give at least two weeks notice prior to re-

moval if at all possible. However, in those instances in

which the Department receives substantiated evidence

that the child is receiving improper care or treatment, the

Department will remove the child immediately pending in-

vestigation. The * * * parents agree to cooperate with the

Department and to:

Share with the worker their experiences with the child.

Comply with requirements for regular medical and

dental examinations.

Report to the worker any illness of the child and any

need for medical care.

Call a physician immediately and notify the district

office as soon as possible in case of acute illness or

accident.

22

Discuss any change in plans for the child with the

worker.

Plan clothing and other needs with the worker.

Consult the worker regarding any extended trip being

planned for the child. When the trip is out-of-state,

consent from the district office is necessary.

Cooperate with the worker regarding visits between

the child and his family either in the * * * home, office,

or elsewhere; treat the parents courteously, and re-

frain from criticizing them in the child’s presence.

Plan with the worker before making religious commit-

ments for the child, such as baptism, confirmation, and

church membership.

Keep confidential all information regarding the child

and his family.

Make no arrangements for boarding other children

without approval of the worker.

Report any changes in the * * * family’s situation, or

circumstances, which may affect the welfare of the

child or the * * * family’s ability to continue giving

care. Give the worker at least two weeks notice, in any

situation, when requesting that the child be removed.

More than two weeks is often needed to complete plan-

ning for the child.

It is understood by both the worker and the * * * parents

that the child is not placed for adoption in this * * * home,

and that the child may be removed by the Department

when it appears to be for the child’s best interests.

23

This placement agreement, made in good faith and mutual

confidence, is equally binding on the Department and

the * * * ABOVE NAMED RELATIVES.

(District office stamp)

/s/ Marcel Youakim, 1/7/72

** * M. Youakim

brother-in-law

/3/ Linda Youakim, 1/7/72

Sister—Linda Youakim

/s/ Christine Mendoza

(Department Representative) 1/7/72

ew er eo

24

EXHIBIT A TO COMPLAINT

Chapter 23 Illinois Revised Statutes

2212.05 Facility for child care, defined.] § 2.05. “Fa-

cility for child care’’ or ‘‘child care facility’? means any

person, group of persons, agency, association or organiza-

tion, whether established for gain or otherwise, who or

which receives or arranges for care or placement of one

or more children, unrelated to the operator of the facility,

apart from the parents, with or without the transfer of the

right of custody in any facility as defined in this Act,

established and maintained for the care of children.

2212.17 Foster family home and types of homes, de-

fined.] § 2.17. “Foster family home” means a facility for

child care in residences of families who receive no more

than 8 children urrelated to them, unless all the children

are of common parentage, for the purpose of providing

family care and training for the children on a full-time

basis. The family’s own children, under 18 years of age,

shall be included in determining the maximum number of

children served. The term ‘‘foster family home’’ includes

homes receiving children from any State-operated institu-

tion for child care; or from any agency established by a

municipality or other political subdivision of the State of

Illinois authorized to provide care for children outside

their own homes. The types of foster family homes are de-

fined as follows:

(a) ‘‘Boarding home” means a foster family home

which receives payment for regular full-time care of a

child or children.

(b) ‘‘Free home” means a foster family home other

than an adoptive home which does not receive payments

for the care of a child or children.

25

(c) ‘‘Adoptive home” means a foster family home

which receives a child or children for the purpose of adopt-

ing the child or children.

(d) ‘*Work-wage home’’ means a foster family home

which receives a child or children who pay part or all of

their board by rendering some services to the family not

prohibited by the Child Labor Law’ or by standards or

regulations of the Department prescribed under this Act.

The child or children may receive a wage in connection

with the services rendered the foster family.

(e) ‘‘Agency-supervised home” means a foster family

home under the direct and regular supervision of a li-

censed child welfare agency, of the Department of Children

and Family Services, of a circuit court, or of any other

State agency which has authority to place children in

child care facilities, and which receives no more than 8

children, unless of common parentage, who are placed

and are regularly supervised by one of the specified

agencies.

(f) ‘*Independent home” means a foster family home,

other than an adoptive home, which receives no more than

4 children, unless of common parentage, directly from par-

ents, or other legally responsible persons, by independent

arrangement and which is not subject to direct and regular

supervision of a specified agency except as such super-

vision pertains to licensing by the Department.

EXHIBIT B TO COMPLAINT

Chapter 23 Illinois Revised Statutes § 5001. Purpose

The purpose of this Act is to create a Department of

Children and Family Services to provide social services

to children and their families, to operate children’s insti-

1. Chapter 48, § 31.1 et seq.

26

tutions, and to provide certain other rehabilitative and

residential services as enumerated in this Act. 1963, June

4, Laws 1963, p. 1061, § 1.

5005. Direct child welfare services.) § 5. To provide

direct child welfare services when not available through

other public or private child care or program facilities.

For purposes of this Section:

The term ‘‘children” means persons found within the

State who are under the age of 18 years at the time of

acceptance for service or care. The term also includes chil-

dren under age 18 and children age 18 or more, but under

age 21 who (1) are in foster care under order of a court

and (2) were, at any time before August 1, 1969, recipients

of foster care under Sections 6-4 or 12-8.6 of ‘‘The Illinois

Public Aid Code’’, approved April 11, 1967, as amended.*

The term “child welfare services” means public social

services which implement or substitute for parental care

and supervision for the purpose of: (1) preventing or

remedying or assisting in the solution of problems which

may result in the neglect, abuse or exploitation of children;

(2) protecting and caring for homeless, dependent or neg-

lected children; (3) protecting and promoting the welfare

of children, including the strengthening of their own fami-

lies and counseling of family members; (4) providing

adequate care of children away from their homes, where

needed, in foster family homes or day care or other child

eare facilities; or (5) providing counseling for mentally re-

tarded, physically, and socially handicapped children and

their parents when not otherwise available.

1. Chapter 23, §§ 6-4, 12-18.6,

27

The Department shall establish and maintain tax-sup-

ported child welfare services and extend and seek to im-

prove voluntary services through the State, to the end

that services and care shall be available on an equal basis

throughout the State to children requiring such services.

For the purpose of insuring effective state-wide plan-

ning, development, and utilization of resources for the day

care of children, operated under various auspices, the

Department is hereby designated to coordinate all day

care activities for children of the State and shall:

(1) Develop a comprehensive day-care plan for the

State which identifies high-priority areas and groups,

relating them to available resources, and identifying

the most effective approaches to the use of existing

day care services. The plan shall include methods and

procedures for the development of additional day care

resources for children to meet the goal of reducing

short-run and long-run dependency and to provide

necessary enrichment and stimulation to the education

of young children. Recommendation shall be made for

State policy on optimum use of private and public, lo-

eal, state and federal resources. A written plan shall be

submitted to the Governor, annually, on January 1, and

shall include an evaluation of developments over the

preceding year, including cost-benefit analyses of vari-

ous arrangements.

(2) The Department shall conduct day care plan-

ning activities within the following priorities:

(a) development of voluntary day care re-

sources wherever possible, with the provision for

grants-in-aid only where demonstrated to be use-

ful and necessary as incentives or supports;

(b) emphasis on service to children of re-

cipients of public assistance where such service

will allow training or employment of the parent

toward achieving the goal of independence;

28

(c) Maximum employment of recipients of

public assistance in day care centers and day

care homes, operated in conjunction with short-

term work training programs;

(d) care of children from families in stress

and crisis whose members potentially may become,

or are in danger of becoming, non-productive and

dependent ;

(e) expansion of family day care facilities

wherever possible;

(f) location of centers in economically de-

pressed neighborhoods, preferably in multi-serv-

ice centers with cooperation of other agencies;

(g) use of existing facilities free of charge or

for reasonable rental wherever possible in lieu of

construction.

(3) Based on its planning activities, the Depart-

ment shall actively stimulate the development of public

and private resources at the local level. It shall also

seek the fullest utilization of federal funds directly or

indirectly available to the Department.

(4) Where appropriate, existing non-governmental

agencies or associations shall be involved in planning

by the Department.

The Department shall establish rules and regulations con-

cerning its operation of programs established to meet

these purposes, including but not limited to adoption, fos-

ter care, family counseling, protective services, service to

unwed mothers, homemaker service, return of runaway

children, and interstate services.

The Department may provide financial assistance, and

shall establish rules and regulations concerning such as-

sistance, to persons who adopt physically or mentally

handicapped, older and other hard-to-place children who

immediately prior to their adoption were legal wards of

29

the Department. The amount of assistance may vary, de-

pending upon the needs of the child and the adoptive par-

ents, but must be less than the monthly cost of care of the

child in a foster home. Special purpose grants are allowed

where the child requires special service but such costs may

not exceed the amounts which similar services would cost

the Department if it were to provide or secure them as

guardian of the child.

The Department shall accept for care and training any

child who has been adjudicated neglected or dependent

committed to it pursuant to the ‘‘Juvenile Court Act’’.?

The Department may, at its discretion except for those

children also adjudicated neglected or dependent, accept

for care and training any child who has been adjudicated

delinquent or as a minor in need of supervision, under the

* Juvenile Court Act”, but no such child shall be committed

to the Department by any court without the approval of

the Department.

The Department may assume temporary custody of any

child (1) if it has received a written consent to such tem-

porary custody signed by the parents of the child or by

the parent having custody of the child if the parents are

not living together or by the guardian or custodian of the

child if the child is not in the custody of either parent or

(2) if the child is found in the State and neither a parent,

guardian nor custodian of the child can be located. The

Department shall have the authority, responsibilities and

duties that a legal custodian of the child would have pur-

suant to Section 1-12 of the ‘‘Juvenile Court Act”.® A

2. Chapter 37, § 701-1 et seq.

3. Chapter 37, § 701-12.

30

parent, guardian or custodian of a child in the temporary

custody of the Department who would have custody of the

child if he were not in the temporary custody of the De-

partment may deliver to the Department a signed request

that the Department surrender the temporary custody of

the child. The Department may retain temporary custody

of the child for 10 days after the receipt of the request,

during which period the Department may cause to be filed

a petition pursuant to the ‘‘Juvenile Court Act’’. If a pe-

tition is so filed, the Department shall retain temporary

custody of the child until the court orders otherwise. If a

petition is not filed within the 10 day period, the child shall

be surrendered to the custody of the requesting parent,

guardian or custodian not later than the expiration of the

10 day period, at which time the authority and duties of

the Department with respect to the temporary custody of

the child shall terminate. The Department may place

children under 18 years of age in licensed child care fa-

cilities when in the opinion of the Department, such place-

ment would be for their best interest. Payment for board,

clothing, care, training and supervision of any child

placed in a licensed child care facility may be made by

the Department, by the parents or guardians of the es-

tates of those children, or by both the Department and

the parents or guardians, except that no payments shall

be made by the Department for any child placed in a li-

censed child care facility for board, clothing, care, training

and supervision of such a child that exceed the average

percapita cost of maintaining and of caring for a child in

institutions for dependent or neglected children operated

by the Department. However, such restriction on pay-

ments does not apply in cases where children require

specialized care and treatment for problems of severe

emotional disturbance, physical disability, social adjust-

31

ment, or any combination thereof and suitable facilities

for the placement of such children are not available at

payment rates within the limitations set forth in this

Section.

The Department may receive and shall use, in its en-

tirety, for the benefit of children any gift, donation or

bequest of money or other property which is received on

behalf of such children, or any financial benefits to which

such children are or may become entitled while under the

jurisdiction or care of the Department.

Amended by P.A. 76-2041, § 1, eff. July 1, 1970; P.A.

77-1374, § 1, eff. Aug. 31, 1971.

APPENDIX C TO COMPLAINT

Title 42 United States Code

§ 601. Appropriations

For the purpose of encouraging the care of dependent

children in their own homes or in the homes of relatives

by enabling each State to furnish financial assistance and

rehabilitation and other services, as far as practicable

under the conditions in such State, to needy dependent chil-

dren and the parents or relatives with whom they are

living to help maintain and strengthen family life: and to

help such parents or relatives to attain or retain capa-

bility for the maximum self-support and personal inde-

pendence consistent with the maintenance of continuing

parental care and protection, there is authorized to be ap-

propriated for each fiscal year a sum sufficient to carry

out the purposes of this part. The sums made available

under this section shall be used for making payments to

States which have submitted, and had approved by the

Secretary, State plans for aid and services to needy fam-

ilies with children.

32

Aug. 14, 1935, c. 531, Title IV, § 401, 49 Stat. 627; 1946

Reorg. Plan No. 2, § 4, eff. July 16, 1946, 11 F’.R. 7873, 60

Stat. 1095; 1953 Reorg. Plan No. 1, §§ 5, 8, eff. Apr. 11,

1953, 18 F.R. 2053, 67 Stat. 631; Aug. 1, 1956, c. 836, Title

III, § 312(a), 70 Stat. 848; July 25, 1962, Pub. L. 87-543,

Title I, § 104(a)(4), (c)(2), 76 Stat. 185, 186; Jan. 2,

1968, Pub. L. 90-248, Title II, § 241(b)(1), 81 Stat. 916.

§ 625. ‘‘Child-welfare services’’ defined

For purposes of this subchapter, the term ‘‘child-welfare

services” means public social services which supplement,

or substitute for, parental care and supervision for the pur-

pose of (1) preventing or remedying, or assisting in

the solution of problems which may result, in the neglect,

abuse, exploitation, or delinquency of children, (2) pro-

tecting and caring for homeless, dependent, or neglected

children, (3) protecting and promoting the welfare of

children of working mothers, and (4) otherwise protecting

and promoting the welfare of children, including the

strengthening of their own homes where possible, or where

needed, the prevision of adequate care of children away

from their homes in foster family homes or day-care or

other child-care facilities.

Aug. 14, 1935, ¢. 531, Title IV, § 425, as added Jan. 2,

1968, Pub. L. 90-248, Title Il, § 240(c), 81 Stat. 914.

APPENDIX D TO COMPLAINT

Chapter 37 Illinois Revised Statutes

§ 701-2. Purpose and Policy

(1) The purpose of this Act is to secure for each minor

subject hereto such care and guidance, preferably in his

own home, as will serve the moral, emotional, mental and

physical welfare of the minor and the best interests of the

community; to preserve and strengthen the minor’s family

33

ties whenever possible, removing him from the custody of

his parents only when his welfare or safety or the protec-

the public cannot be adequately safeguarded without re-

moval; and, when the minor is removed from his own fam-

ily, to secure for him custody, care and discipline as nearly

as possible equivalent to that which should be given by his

parents, and in cases where it should and can properly be

done to place the minor in a family home so that he may

become a member of the family by legal adoption or other-

wise.

(2) In all proceedings under this Act the court may

direct the course thereof so as promptly to ascertain the

Jurisdictional facts and fully to gather information bearing

upon the current condition and future welfare of persons

subject to this Act. This Act shall be administered in a

spirit of humane concern, not only for the rights of the par-

ties, but also for the fears and the limits of understanding

of all who appear before the court.

(3) This Act shall be liberally construed to carry out

the foregoing purpose and policy.

Laws 1965, p. 2585, § 1-2, eff. Jan. 1, 1966.

APPENDIX E TO COMPLAINT

Title 42 United States Code

42§608 PUBLIC HEALTH AND WELFARE

§ 608. Payment to States for foster home care of depend-

ent children; definitions

Effective for the period beginning May 1, 1961—

(a) the term ‘‘dependent child” shall, notwith-

standing section 606(a) of this title, also include a

child (1) who would meet the requirements of such

section 606(a) or of section 607 of this title except

34

for his removal after April 30, 1961, from the home of

a relative (specified in such section 606(a)) as a re-

sult of a judicial determination to the effect that

continuation therein would be contrary to the welfare

of such child, (2) whose placement and care are the

responsibility of (A) the State or local agency ad-

ministering the State plan approved under section 602

of this title, or (B) any other public agency with whom

the State agency administering or supervising the

administration of such State plan has made an agree-

ment which is still in effect and which includes provi-

sion for assuring development of a plan, satisfactory

to such State agency, for such child as provided in

paragraph (f)(1) and such other provisions as may

be necessary to assure accomplishment of the objec-

tives of the State plan approved under section 602 of

this title, (3) who has been placed in a foster family

home or child-care institution as a result of such de-

termination, and (4) who (A) received aid under such

State plan in or for the months in which court proceed-

ings leading to such determination were initiated, or

(B) (i) would have received such aid in or for such

month if application had been made therefor, or (ii) in

the case of a child who had been living with a relative

specified in section 606(a) of this title within 6 months

prior to the month in which such proceedings were

initiated. would have received such aid in or for such

month if in such month he had been living with (and

removed from the home of) such a relative and ap-

plication had been made therefor:

(b) the term ‘‘aid to families with dependent chil-

dren” shall, notwithstanding section 606(b) of this

title, include also foster care in behalf of a child de-

scribed in paragraph (a) of this section—

(1) in the foster family home of any individ-

ual, whether the payment therefor is made to such

individual or to a public or nonprofit private child-

placement or child-care agency, or

35

(2) in a child-care institution, whether the

payment therefor is made to such institution or

to a public or non-profit private child-placement

or child-care agency, but subject to limitations

prescribed by the Secretary with a view to in-

cluding as ‘‘aid to families with dependent chil-

dren’’ in the case of such foster care in such insti-

tutions only those items which are included in

such term in the case of foster care in the foster

family home of an individual.

(c) the number of individuals counted under clause

(A) of section 603(a)(1) of this title for any month

shall include individuals (not otherwise included un-

der such clause) with respect to whom expenditures

were made in such month as aid to families with

dependent children in the form of foster care; and

(d) services described in paragraph (f)(2) of this

section shall be considered as part of the administra-

tion of the State plan for purposes of section 603(a)

(3) of this title;

but only with respect to a State whose State plan approved

under section 602 of this title—

(e) includes aid for any child described in para-

graph (a) of this section, and |

(f) ineludes provision for (1) development of a

plan for each such child (including periodic review of

the necessity for the child’s being in a foster family

home or child-care institution) to assure that he re-

ceives proper care and that services are provided

which are designed to improve the conditions in the

home from which he was removed or to otherwise make

possible his being placed in the home of a relative

specified in section 606(a) of this title, and (2) use by

the State or local agency administering the State plan,

to the maximum extent practicable, in placing such

a child in a foster family home or child-care institu-

wwe-. - .

36

tion, of the services of employees, of the State public-

welfare agency referred to in section 722(a) of this

title (relating to allotments to States for child welfare

services under sections 721-728 of this title) or of any

local agency participating in the administration of the

plan referred to in such section, who perform functions

in the administration of such plan.

For purposes of this section, the term ‘‘foster family

home’’ means a foster family home for children which is

licensed by the State in which it is situated or has been

approved, by the agency of such State responsible for li-

censing homes of this type, as meeting the standards es-

tablished for such licensing; and the term ‘‘child-care in-

stitution” means a nonprofit private child-care institution

which is licensed by the State in which it is situated or has

been approved, by the agency of such State responsible

for licensing or approval of institutions of this type,

as meeting the standards established for such licensing.

Aug. 14, 1935, e. 531, Title IV, § 408, as added May %,

1961 Pub.L. 87-31, § 2, 75 Stat. 76, and amended July 25,

1962, Pub.L. 87-543, Title I, §§ 101(b)(2)(D), 104(a) (3)

(F), (G), 131(b), 135(a)-(d), 155(a), 76 Stat. 180, 185,

193, 196, 197, 207; Jan. 2, 1968, Pub.L. 90-248, Title II,

§§ 201(e) (4), 205(c), 81 Stat. 880, 892.

37

APPENDIX F TO COMPLAINT

ILLINOIS DEPARTMENT OF CHILDREN AND

FAMILY SERVICES

Social Services—PLACEMENT MANUAL July 17, 1972

Chapter Three

SPECIAL CHILD CARE PROGRAMS

Part Five: PLACEMENT WITH RELATIVES

I. DEFINITION

‘*Relative’’ means a person having any of the follow-

ing relationships to the child by blood, marriage, or

adoption: grandparents, brother, sister, stepbrother,

stepsister, uncle or aunt. By administrative inter-

pretation the definition has been broadened to in-

clude great-uncle, great-aunt and great-grandparent.

Such ‘‘related’’ persons are not subject to foster

home licensing whereas all other ‘‘relative’’ homes

are subject to study and licensing as a foster family

home.

Il. LEGAL BASE

The Act Creating the Department of Children and

Family services authorizes provision of child welfare

services which supplement or substitute parental care.

Provision of such services does not preclude place-

ment of a child under care with approved relatives.

Ill. SCOPE OF SERVICE

The primary consideration in placement of a child

with relatives are the needs of the child. Such place-

ment, if indicated, is designed to reinforce the child’s

identification with ‘‘family.’’

IV. CRITERIA

If a relative home is to be considered as a placement

resource the home must reasonably meet the minimum

standards cited in Chapter Two, Section IV. Relative

resources should be explored for all children for whom

placement is indicated with the exception of children

relinquished for adoption.

Vv. INTAKE

A. Request for Service

(1) The district office should check with the

Illinois Department of Public Aid as a po-

tential financial resource for the child(ren)

living with relatives at the time of referral

or for whom relatives are interested in ac-

cepting for care.

(2) Form CFS-602, Medical Report on An Adult

or Child in a Licensed Child Care Facility,

must be completed for all members of the

household if a relative home is being con-

sidered as a placement resource.

B. Evaluation

Interest and concern of relatives in the child-

(ren); the feeling of relatives toward parents;

ability to cooperate with the Department; and,

placement of choice of the parents and child-

(ren) must all be explored as essential elements

for a successful placement.

C. Disposition

In all relative placements the district office

should approach the court seeking a court order

appointing the Guardianship Administrator or

39

the approved relative as guardian of the person

of the child(ren) to insure the availability of a

person to make decisions in behalf of the child-

(ren) and to prevent removal of the child(ren)

by unauthorized persons.

VI. PROCEDURES FOLLOWING CASE ACCEPT-

ANCE

A. The District Office will:

(1) Arrange for placement and authorize pay-

ment, if indicated and approved by Social

Service Administrator, Metropolitan or

Downstate Area.

(2) Supervise placement and provide casework

services to the family or relatives on behalf

of the child(ren).

B. The Relative will:

(1) Accept terms of placement such as duration

and agency goals for the child(ren) and

work cooperatively with the agency to

achieve these goals.

(2) Respect the parents desires for religious

training for the child(ren).

Chapter Three

Part Five—Appendix 1—Fiscal Policies and Procedures

SPECIAL CHILD CARE PROGRAMS

PLACEMENT WITH RELATIVES

A. The Department has no statutory authority to

pay relatives for the care of children. Only the

Social Service Administrator of Metropolitan or

ee

40

Downstate Area may authorize such payment

and it will not be authorized without written ap-

proval. A request for payment of a relative shall

include: summary of the child’s situation; legal

status; reason for considering the proposed place-

ment as desirable for the child; financial cireum-

stances of the relatives; and, monthly rate for

which approval is requested.

If payment is to be made it shall be an inclusive

rate which does not exceed the regular rates paid

to Division of Child Welfare foster family homes.

Monthly payment to relatives is authorized by di-

recting completed Form CFS-903, Payment Au-

thorization, to the Division of Methods and In-

formation Services, State Administrative Office,

Springfield, 62706. Inuicate in Section 4, Type

of Payment #34 Relative—‘‘legally exempt from

licensing.’’ Monthly amount to be entered in Sec-

tion 5 Payments—Board. (See Chapter Two, Ap-

pendix 1, I1A—Monthly Payment Rate.)

Initial placement clothing may be authorized by

use of Forms CFS-932, Purchase Authorization,

and FA-13, Invoice-Voucher. The vendor(s)

should direct the completed forms to the Division

of Administrative Services, State Administrative

Office, Springfield, 62706, for payment. (See

Chapter Two, Appendix 1, II B—Initial Clothing

Allowance.)

Form CFS-425, Foster Home Placement Agree-

ment, is to be signed in duplicate by the relative

payee and the district worker with changes to in-

dicate the relationship of the caretaker(s) to the

child. One copy is kept by the relative and the

other filed in the child’s record.

ee ee eee

41

DEFENDANTS’ MOTION TO STRIKE AND DISMISS

COMPLAINT, TO STAND AS TO SECOND

AMENDED COMPLAINT

Filed April 2, 1973

[Caption Omitted in Printing]

NOW COME Defendants JEROME MILLER, in-

dividually and as Director of the Illinois Department

of Children and Family Services, and the DEPART-

MENT OF CHILDREN AND FAMILY SERVICES, by

their attorney WILLIAM J. SCOTT, Attorney General of

the State of Illinois, and pursuant to Rule 12 of Federal

Rules of Civil Procedure respectfully move this Court

to strike and dismiss the Plaintiffs’ Complaint. In sup-

port of this Motion, the Defendants herein state as fol-

lows:

1. The allegations contained in Plaintiffs’ Complaint,

which purport to set forth a violation of equal protection,

specifically Ill. Rev. Stat. Chapter 23, Sections 2212.05

and 2212.17, are conclusory in nature and fail to state

a cause of action or state a claim upon which relief may

be granted.

A. Said statute as it stands is a valid legislative clas-

sification permissible under state and federal law and

does not constitute arbitrary, capricious or invidious dis-

crimination in violation of U.S.C. Constitutional Amend-

ment 14.

2. This Court does not have jurisdiction over the

subject matter as to these defendants.

A. Plaintiffs by bringing suit against the Department

of Children and Family Services is in effect bringing

suit against the State.

42

B. The State of Illinois has not consented to be sued

by Plaintiffs in Federal Court and as such cannot be

made subject of such suit by virtue of its grant of

immunity by U.S.C. Constitutional Amendment II.

C. In the event this Court should determine that

its jurisdiction does in fact attach hereto, it should ab-

stain from exercising such jurisdiction by virtue of there

being an effective remedy existing at the level of the

State Courts.

3. The class action commenced herein is improperly

brought and fails to meet the requirement demanded of

such action in that:

A. The claims of Plaintiffs are not representative of

the class as a whole.

B. The Plaintiffs as representative cannot adequately

protect the interests of the class.

C. There is doubt as to whether there exists a com-

mon question of law or fact applicable to the entire class.

Respectfully submitted,

WILLIAM J. SCOTT

Attorney General of Illinois

RICHARD L. RYAN

Special Ass’t Atty General

(Of Counsel)

[Notice of Filing and Certificate of Service Omitted]

43

SUPREME COURT OF THE UNITED STATES

No. 73-6935

MARCEL YOUAKIM, ET AL., APPELLANTS

v.

JEROME MILLER, Individually and as Director of the

Department of Children and Family Services, ET AL.

ON CONSIDERATION of the motion for leave to pro-

ceed herein in forma pauperis,

IT IS ORDERED by this Court that the said motion be,

and the same is hereby granted.

March 17, 1975

Mr. Justice Douglas took no part in the consideration

or decision of this motion.

—

44

PLAINTIFFS’ MOTION FOR PRELIMINARY

INJUNCTION AND FOR SUMMARY JUDGMENT

Filed June 10, 1976

[Caption Omitted in Printing]

1. Now come the named Plaintiffs, by their attorney,

PATRICK A. KEENAN, DePaul Law Clinic, and respect-

fully move that this Honorable Court enter a Preliminary

Injunction pursuant to FRCP 65(a) or in the alternative,

Summary Judgment, pursuant to FRCP 56 against the

Defendants to prevent them from continuing in their refu-

sal to pay full federally subsided (sic) foster care (AFDC-

FC) payments to the members of the Plaintiff class.

2. The grounds for this Motion are that the Illinois

practice of refusing the payments is in conflict with the

Social Security Act and the applicable H.E.W. Program

Instruction and with the Supremacy Clause of the U.S.

Constitution.

3. This cause comes to be heard on remand from the

U.S. Supreme Court which by its per curiam opinion here-

- in which vacated the dismissal of the Complaint by the

Three-Judge District Court, and requires this Court to

consider first the statutory issue set out in paragraph 2.

See Youakim v. Miller, 96 S. Ct. 1399 at 1402, 1976. (Copy

attached as Exhibit A, 5 pages.)

4, The Social Security Act allows and requires the

State to pay full AFDC-FC payments to children who are

wards of the Juvenile Court who are placed in a licensed

or approved foster family home of any individual. 42 U.S.C.

§ 608(b)(1). (emphasis added. Test (sic) of § 608 attached

as Exhibit B, and set out at p. 31 of the Appendix filed in

the Supreme Court.) There are no exclusions.

ee ee ee aw .

alana

45

5. On October 25, 1974, the H.E.W. Social and Re-

habilitation Service issued Program instruction APA-PI-

75-9 which states in relevant part:

When a child has been removed from his home by judi-

cial determination and is placed in foster care under

the various conditions specified in Section 408 of the

Social Security Act and 45 CFR 233.110, the foster care

rate of payment prevails regardless of whether or not

the foster home is operated by a relative. A non-legally

liable relative has no financial responsibility towards

the child placed with him and the income and resources

of such a relative are not factors in determining en-

titlement to a foster care payment.

(Program Instruction attached as Exhibit C and set out

at pp. 27-29 of Plaintiffs’ Brief filed in the Supreme Court.)

6. In response to the Supreme Court’s invitation of Octo-

ber 15, 1974, that the Solicitor General filed an amicus brief,

Solicitor Robert Bork stated as follows in his February 19,

1975, brief filed on behalf of H.E.W. in the Supreme Court:

We submit that the Illinois policy of denying foster |

eare AFDC benefits for children livivg with relatives

is invalid because it conflicts with specific criteria for

eligibility set forth in the Social Security Act...

Amicus Memorandum 2

(attached as Exhibit D, 7 pages.)

7. Notwithstanding the clarity of the federal law, the

Defendants persist in their refusal to comply therewith.

On June 1, 1976, Illinois Assistant Attorney General Rich-

ard Regan (sic) told this Honorable Court, Judge Alfred Y.

Kirkland presiding, that the Defendants refuse to comply

with ‘‘H.E.W.’s position.’’

8. By their own affidavit filed herein on January 8,

1974, Defendants admitted that 1,500 DCFS wards are

46

placed in foster care in the homes of their relatives, but

only approximately 140 are receiving the full amount of

AFDC-FC benefits. In 1974, approximately 1,260 eligible

DCFS wards did not receive the required benefits. (Affi-

davit of Ralph Hanibult attached as Exhibit E, set out in

Appendix at 44.)

9. This cause has been pending since the original com-

plaint was filed on March 13, 1973. During three years of

litigation the members of the Plaintiff class have been

denied the federally subsidized AFDC-FC payments to

which they have a federal legal and constitutional right.

10. There are no contested issues of fact.

11. This Motion is supported by the Affidavits of Pat-

rick A. Keenan and Jane Shay Lynch, attached hereto as

Exhibit F. The Plaintiffs also refer to, and ask that their

Second Amended Complaint filed January 21, 1974, be

incorporated in these motions.

12. In addition to the authorities cited in the Plain-

tiffs-Appellants’ Brief filed herewith, Plaintiffs respect-

fully ask that this Court consider the Seventh Circuit

Court’s recent Opinion in Mandley v. Trainor, 523 F. 2d

415 (1975) that Illinois may not declare ineligible persons

who come within the federal definition of eligibility for

categorical assistance. at 423.

13. WHEREFORE, for the reasons collectively as-

signed above, and to give effect to the federal law, the

Plaintiffs respectfully pray that this Court enter a Pre-

liminary Injunction against the Defendants, or in the

alternative, enter a Summary Judgment for the Plaintiffs

and against the Defendants to include the following re-

lief :

13a. Enjoin the Defendants from execution of the state

statutes or policies which deny full foster care (AFDC-

FC) payments to Plaintiffs related foster children;

47

13b. In the alternative, declare, that the Statute which

prevents licensure of foster homes operated by persons

related to this foster children (Ill. Rev. Stat. Ch. 23, $§

2212.05 and 2212.17, 1975) is in conflict with the federal

Social Security Act and Regulations and can have no

further effect. (statutes attached as Exhibit G, and set

out at pp. 21-22 of Appendix.)

13c. In the alternative, strike the word ‘‘unrelated’’

from the foster home-licensure statutes. (Ill. Rev. Stat.

Ch. 23, $$ 2212.05 and 2212.17 (1975));

13d. Order the defendants to enact and execute policies

and procedures, to be first submitted to and approved by

this Court, which will provide for full foster (AFDC-FC)

payments to all Illinois children who are in foster care

and who meet the eligibility criteria of 42 U.S.C. § 608, in-

cluding those children who are related to their foster par-

ents.

13e. For such other relief as may be deemed just, in-

cluding appropriate costs and attorney’s fees.

13f. In the event this Motion and relief is denied, to

retain jurisdiction of this cause, and to consider the Plain-

tiffs’ constitutional claims.

Respectfully submitted,

/s/Patrick A. Keenan

PATRICK A. KEENAN

Attorney for Plaintiff.

PATRICK A. KEENAN

Attorney for Plaintiffs

DePaul Law Clinic

23 East Jackson Blvd.

Room 950

Chicago, Illinois 60604

48

EXHIBIT C TO PLAINTIFFS’ MOTION FOR

PRELIMINARY INJUNCTION AND FOR

SUMMARY JUDGMENT

DEPARTMENT OF HEALTH, EDUCATION AND

WELFARE

SOCIAL AND REHABILITATION SERVICE

WASHINGTON, D.C. 20201

TO:

SUBJECT:

COMMENT:

PROGRAM INSTRUCTION

APA-PI-75-9

October 25, 1974

STATE AGENCIES ADMINISTERING

APPROVED PUBLIC ASSISTANCE

PLANS

AFDC Foster Care

This program instruction is issued to

resolve the problem of some States not

licensing or approving the homes of non-

legally liable relatives as foster care homes

even though suitable foster care could be

provided in the homes and payments made

at the foster care rate when children are

placed with relatives who meet all condi-

tions of eligibility for AFDC-FC.

There have been several U.S. District Court

decisions which have held that States may

not refuse to provide the foster care rate

to a foster home because it is operated by

relatives who have no legal responsibility

for support and care of the child.

ncaa’

49

In addition, the U.S. Supreme Court in the

case of Ramos v. Montgomery, January 18,

1971, upheld making a higher payment for

foster care than was provided under a

state’s standard for AFDC payments.

Under 45 CFR 233.110(a)(1), states must

provide for aid in the form of foster care

for each otherwise eligible child as specified

in the Act and in 233.110(b). Federal finan-

cial participation is available for children

who are placed in a foster home or non-

profit private child-care institutions licensed

or approved by the agency which is respon-

sible for licensing or approval of such facil-

ities in the State. These provisions apply

regardless of whether the licensed or ap-

proved foster family home in which a child

is placed is operated by a relative (with no

legal responsibility to support the child).

When a child has been removed from his

home by judicial determination and is

placed in foster care under the various

conditions specified in Section 408 of the

Social Security Act and 45 CFR 233.110,

the foster care rate of payment prevails

regardless of whether or not the foster home

is operated by a relative. A non-legally

liable relative has no financial responsibil-

ity towards the child placed with him and

the income and resources of such a relative

are not factors in determining entitlement

to a foster care payment. It must be noted,

too, that the 1967 amendments to the Social

50

Security Act liberalized Federal financial

participation in the cost of foster care,

recognizing foster family care is more

costly than care in the child’s own home.

INQUIRIES TO:

SRS Regional Commissioners

/s/John A. Svahn

JOHN A. SVAHN

Commissioner

Assistance Payments Administration

—

ae Jem ne

o1

EXHIBIT D TO PLAINTIFFS’ MOTION FOR

PRELIMINARY INJUNCTION AND FOR

SUMMARY JUDGMENT

MEMORANDUM FOR THE UNITED STATES AS

AMICUS CURIAE

Filed February, 1975

[Caption Omitted in Printing]

This memorandum is submitted in response to this

Court’s order of October 15, 1974, inviting the Solicitor

General to present the views of the United States.

STATEMENT

The State of Illinois has a policy whereby it makes a

substantial foster care (AFDC-FC) payment pursuant to

the federal Aid to Families with Dependent Children

(AFDC) program when children are placed in a foster

home with persons who are not related, pursuant to a

judicial determination that the children’s original home

is unsuitable for them. If, however, the persons providing

the foster care in such circumstances are related to the

children, Illinois denies them foster care payments, un-

less they can show a need therefor. The foster family may

qualify for AFDC payments, which in Illinois are less

than the AFDC-FC payments.

Appellants in this case are foster parents caring for

children related to them, and the children themselves.

They brought a class suit in the United States District

Court for the Northern District of Illinois, contending

that the Illinois practice of providing higher payments

when the foster parents are unrelated to the children vio-

lates the Social Security Act and the Equal Protection

Clause. A three-judge district court rejected these con-

tentions and dismissed the suit (J.S. App. A).

52

ARGUMENT

We submit that the Illinois policy of denying foster

care AFDC benefits for children living with relatives is

invalid because it conflicts with specific criteria for eligi-

bility set forth in the Social Security Act; and that the

validity of this practice is a substantial question in the

administration of the Social Security Act which warrants

plenary review by this Court.

1. In order to qualify for AFDC benefits, a child must

be a ‘‘dependent child’’ as defined in 42 U.S.C. 606(a).

Under that definition, a child is dependent if it (1) has

been deprived of parental support for specified reasons,

(2) is living with a relative as defined in the section, and

(3) is under 18 (or, in certain circumstances 21) years of

age.’ The AFDC foster care program is provided under

42 U.S.C. 608, which extended the definition of ‘dependent

1. 42 U.S.C. 606(a) provides:

When used in this part—

(a) The term ‘‘dependent child’? means a needy

child (1) who has been deprived of parental support or

care by reason of the death, continued absence from

the home, or physical or mental incapacity of a parent,

and who is living with his father, mother, grandfather,

grandmother, brother, sister, stepfather, stepmother,

stepbrother, stepsister, uncle, aunt, first cousin,

nephew, or neice, in a place of residence maintained

by one or more of such relatives as his or their own

home, and (2) who is (A) under the age of eighteen, or

(B) under the age of twenty-one and (as determined by

the State in accordance with standards prescribed by

the Secretary) a student regularly attending a school,

college, or university, or regularly attending a course of

vocation or technical training designed to fit him for

gainful employment.

Ss

53

child’ to include certain children who, even though not

living with relatives, live in foster homes as a result of a

judicial determination that they should be removed from

their regular homes.’ A child is eligible for AFDC-FC if it

2. 42 U.S.C. 608 (a) provides:

Effective for the period beginning May 1, 1961—

(a) the term ‘‘dependent child”’ shall, notwithstand-

ing section 606(a) of this title, also include a child (1)

who would meet the requirements of such section 606(a)

or of section 607 of this title except for his removal

after April 30, 1961, from the home of a relative (speci-

fied in such section 606(a)) as a result of a judicial de-

termination to the affect that continuation therein

would be contrary to the welfare of such child, (2)

whose placement and care are the responsibility of (A)

the State or local agency administering the State plan

approved under section 602 of this title, or (B) any

other public agency with whom the State agency ad-

ministering or supervising the administration of such

State plan has made an agreement which is still in

affect and which includes provision for assuring de-

velopment of a plan, satisfactory to such State agency,

for such child as provided in paragraph (f)(1) and

such other provisions as may be necessary to assure

accomplishment of the objectives of the State plan ap-

proved under section 602 of this title, (3) who has been

placed in a foster family home or child-care institution

as a result of such determination, and (4) who (A) re-

ceived aid under such State plan in or for the month in

which court proceedings leading to such determination

were initiated, or (B) (i) would have received such aid

in or for such month if application had been made

therefor, or (ii) in the case of a child who had been

living with a relative specified in section 606(a) of this

title within 6 months prior to the month in which such

proceedings were initiated, would have received such

aid in or for such month if in such month he had been

living with (and removed from the home of) such a

relative and application had been made therefore.

54

(1) is a “dependent child’’ as defined in section 608(a) ;

(2) lives in a ‘‘foster family home’’ or a ‘‘child-care in-

stitution’’ as a result of a judicial determination that the

child’s home is not suitable for him (Section 608(f));

and (3) meets other conditions of Section 608, not in issue

here.

Appellants concededly meet all of these conditions, and

therefore qualify for AFDC-FC. The additional require-

ment imposed by the State of Illinois that children are

entitled to AFDC-FC only if the foster home in which

they are living is maintained by non-relatives is contrary

to the decisions of this Court which have prohibited the

states from narrowing specific federal eligibility criteria

without congressional authorization. Townsend v. Swank,

404 U.S. 282, 285; Carlson v. Remillard, 406 U.S. 598, 601;

King v. Smith, 392 U.S. 309, 333.3

3. There have been several cases in which the state has

been permitted to impose additional requirements as con-

ditions of eligibility for AFDC. Snell v. Wyman, 393 U.S.

323, affirming 281 F. Supp. 853 (S.D. N.Y.); Wyman v.

James, 400 U.S. 309; Charleston v. Wohlgemuth, 405 U.S.

970, affirming 332 F Supp. 1175 (E.D. Pa.); New York

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

405. The requirements upheld in those cases, however,

were designed to further the purposes of the Social Secur-

ity Act, such as seeking employment, permitting a home

visit by social workers, or agreeing to reimburse the

state for assistance received if funds therefore become

available. Here, on the other hand, the Illinois system ex-

cludes from benefits a class of children who meet the

statutory qualifications and, as shown infra, (P. 5), the

disqualifying condition of living with a relative is op-

posed to rather than in furtherance of the design of the

Social Security Act.

55

Appellees argue (Motion to Dismiss or Affirm, p. 15)

that because the Social Security Act ‘‘indicates that child-

ren ought to be placed, when their return to their natural

home is rendered impossible, in the home of a relative, and

only thereafter in the home of a stranger * * * the law

considers relatives of a child on a nearly equal basis with

natural parents.’’ From this they conclude that the state

may treat children in foster homes of relatives as if they

were still living with their parents, and therefore deny

them foster-care payments. The argument is a non sequitur.

As already noted, the only qualification for foster-care

benefits is that the child be ‘‘dependent’’ and that it be

living in a foster home or a child-care institution as the

result of a judicial determination that its own home is un-

suitable. Those conditions were satisfied here, and the

child is therefore entitled to foster-care benefits.

Appellees’ argument, rather than supporting their con-

clusion, points in the opposite direction. The denial of

foster-care benefits to children living with relatives is

likely to make relatives unwilling to accept the children

and lead to the placement of children in foster homes of

non-relatives. This result would be inconsistent with the

policy stated in 42 U.S.C. 401 that the AFDC program is

aimed at ‘‘encouraging the care of dependent children in

their own homes or in the homes of relatives * * *.’’ In-

deed, this policy was the primary basis upon which a dist-

rict court invalidated, as inconsistent with the Social Se-

curity Act, the practice of South Dakota of denying foster-

care payments for children living with relatives. Clampett

v. Madigan, No. CIV73-4018, decided May 24, 1973 (D.

8.D.). See, also, Jackson v. Ohio Department of Public

Welfare, No. C72-182, decided April 17, 1972 (N.D. Ohio).

56

Appellants contend that Ramos v. Montgomery, 331 F.

Supp. 1197 (S.D. Cal.), affirmed, 400 U.S. 1003, controls

this case. That case, however, merely held that where a

child was not eligible for foster-care benefits because he

did not meet the condition in Section 608 that he had been

removed from his home as a result of a judicial determin-

ation, the foster parents were not entitled to receive fos-

ter-care payments. The present case, however, involves

the totally different situation where the child does qualify

for foster-care payments but the state denies those pay-

merts because relatives provide the foster care.

2. The question is an important one in the administra-

tion of the Act. We are informed by the Department of

Health, Education and Welfare that in addition to Llinois,

13 other states currently deny full foster-care payments

to foster parents caring for related children. Approxi-

mately 23 percent of AFDC recipients are living in those

states. The issue thus has substantial impact, and war-

rants definitive resolution by this Court.

CONCLUSION

Probable jurisdiction should be noted.

Respectfully submitted.

ROBERT R. BORK,

Solicitor General.

FEBRUARY, 1975.

—

57

DEFENDANTS’ MOTION FOR SUMMARY

JUDGMENT

Viled June 14, 1976

[Caption Omitted in Printing]

NOW COME Defendants herein by and through their

attorney WILLIAM J. SCOTT, Attorney General of IIli-

nois and respectfully move this honorable court pursuant

to Rule 56 of the Federal Rules of Civil Procedure to

grant Summary Judgment in their favor, and against

Plaintiffs to this cause. In support of such motion Defen-

dants state:

1. This cause comes to be heard on remand from the

United States Supreme Court requiring consideration of

the statutory issue concerning alleged conflict of Illinois

policy and law with the Social Security Act.

2. The Social Security Act neither allows nor requires

or in the alternative allows but does not require the State

to pay full AFDC-FC funds to children who are wards of

the Juvenile Court and placed in the home of a relative.

3. The Illinois statutory foster care scheme is con-

sistent with the purpose, meaning and legislative history

of the Social Security Act, and does not therefore violate

said Act or the Supremacy Clause of the United States

Constitution. Nor does the Illinois Scheme conflict with

specific criteria for eligibility as set forth in the Social

Security Act.

4. The Program Instruction of the Department of

Health, Education and Welfare and the Amicus opinion

of the Office of the Solicitor General are inconsistent with

and in contravention to prior federal regulatory interpre-

tation of the Social Security Act and in addition are

contradictive of the meaning and purpose of the applica-

ble sections of said Act.

Cree et Ow

58

5. The Program Instruction of the Department of

Health, Education and Welfare #APA-PI-75-9 as issued

on October 25, 1974, and as it may be relevant to this

cause is not mandatory upon the states and does not carry

regulatory weight or force of law.

6. There exists no federal statutory or constitutional

right on the part of the Plaintiff class to receive subsid-

ized AFDC-FC foster care payments from the State of

Illinois or the federal government.

7. There are no material issues of fact in this matter

and relief depends solely on judicial interpretation of law.

8. Defendants, as have Plaintiffs, submit their brief(s)

as filed in the Supreme Court of the United States in sup-

port of this motion. Said brief is sufficient to address the

issue of the alleged statutory conflict as required by re-

mand instructions.

WHEREFORE in light of the foregoing motion and

supportive brief and argument, it is respectfully moved

that this honorable court grant Defendant’s motion for

summary judgment and deny summary judgment for

Plaintiffs, all costs to be taxed to Plaintiffs.

Respectfully submitted,

WILLIAM J. SCOTT,

Attorney General of Illinois

160 North LaSalle Street

Chicago, Illinois 60601

RICHARD L. RYAN

Special Assistant Attorney General

(Of Counsel)

Sg ee ee

59

SUPREME COURT OF THE UNITED STATES

No. 77-742

JEROME MILLER, etc., et al.

Appellants.

v.

MARCEL YOUAKIM, et al.

APPEAL from the United States Court of Appeals for

the Seventh Circuit. In this case probable jurisdiction is

noted. Mr. Justice Stevens took no part in the considera-

tion or decision of this matter.

February 21, 1978