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

METCALF, etc., al., Plaintiffs- Ella et Appellants, SWANK, etc., al.,

Harold et O. Defendants-Appellees.

No. 18136. Appeals,

United States Court

Seventh Circuit.

April 30, 1971. 1, 1971. July

Rehearing Denied

Reynolds, Judge, District dissented opinion.

and filed

family pays of two or more which unit per month residence more than $90.00 per rental but receives less $90.00 from the month a shelter allowance Illinois, County, De Illinois and Cook partments Defendants of Public Aid.2 respective the de are the directors partments charged by law and are of the Illinois Public enforcement Code. Aid the Illinois Public Section 12-4.11 of Code, Ill.Rev.Stat.1967, 23, 12- Aid ch. § 4.11, public shelter deals with assistance provides, relevant allowances any part: for shelter standard “[T]he recipient, exclusive of household furnish- ings utilities, shall not exceed $90.00 per month, except adjustments for made in the 12-14.” manner authorized § 23, 12-14, Ill.Rev.Stat.1967, Section ch. 12-14, provides that Illinois De- partment may, Aid after con- Public Legislative Advisory sultation Aid, Committee on “de- Public authorize per viations” from the month $90.00 limitation. challenged originally

Plaintiffs Scott, provisions of these on Ben Gordon H. Robert W. S. nett, Ill., 1968, Chicago, Humphrey, face. On November Thomas P. judge appellants. three court find for issued its ing the statute on face. its Hanrahan, Atty., Edward Y. State’s Swank, (N.D. F.Supp. Metcalf v. Brannigan, Thomas E. Asst. State’s Ill.1968). The court found that “the ar Atty., Chicago, Ill., Scott, William J. bitrary nature maximum” was flat Atty. Ill., Chicago, Ill., ap Gen. for provision in the avoided for pellees. exceptions to the maximum.3 The $90.00 HASTINGS, Before Circuit Senior construed Judge, PELL, Judge, Circuit and REYN- granting exceptions OLDS, Judge.1 District necessary “provide whenever a liveli compatible hood with health and well- PELL, Judge. Circuit being,” as stated in Hav section 12-4.11. ing conclusion, pursuant This reached class action was three judge single to the Civil Act of 42 U.S.C. court remanded the case to a judge recipients ques pub resolution behalf of all factual lic aid in tions that Illinois who are of a remain. members Reynolds Judge children, behalf of of the United Dis- herself and her five States plaintiff. representative trict Court mains as a the Eastern District sitting by designation. Wisconsin is Dandridge 3. We note that under Wil- liams, 2. The district court found that all one but representative (1970), L.Ed.2d 491 after have been decided granted judge opinion issued, shelter three allowances sufficient a statute imposing cover their shelter costs a flat maximum would not since this action unconstitutionally Only per arbitrary. Metcalf, se initiated. Mrs. Ella Rights Act or otherwise. decision der the Civil did Plaintiffs Co., 232 U.S. v. Rutland Railroad rather filed Bacon but single L.Ed. 538 complaint amended (Wright also Barron Holtzoff judge. & amended See district Count I find ed.) we pp. Thus 355-56. renewed challenged case unpersuasive the instant Monroe II on its face. Count remedy ad- plaintiffs’ plainly is applied. provisions statutory challenged provisions on ministrative. III Count grounds. state law up- opinion, reliance In our Education, 373 on McNeese v. Board pre- because Count dismissed was 668, 1433, 622 10 83 S.Ct. L.Ed.2d U.S. viously by the court. decided (1963), misplaced the same is for much Count III for want was dismissed remedy McNeese reason. While pendent jurisdiction following formally administrative, the Court was of Count II with we missal judicial it in substance found that was primarily concerned. only power the administrator since II Count The district court dismissed of state to recommend the institution was ad- “for failure to exhaust available state proceedings. Under such circum- court stances, ** *,” and remedies ministrative “It the Court would be stated: consti- it no stated “substantial rem- anomalous to conclude such * * * justify the tutional claim [to] edy courts suit the federal forecloses ** assumption jurisdiction produce it is state when the most could ad- absent exhaustion available state such ef- court action would have no from this ministrative remedies.” * * * swpra.” Pape, fect. Monroe v. plaintiffs appeal. dismissal that 675, at Fur- 373 U.S. at 1437. 83 S.Ct. ther, appeal, plaintiffs contend the Court indicated doubt On its remedy “sufficiently ade- re- the state exhaustion of state remedies is never was 674, quired quate.” Id., brought pursuant at 83 actions S.Ct. Eights Alternatively, Civil Act. involved Administrative re- is sometimes assert if exhaustion upon by in the final three relied cases quired, proper this is not a for the California, plaintiffs. 389 Damico v. imposition requirement.4 416, 526, 88 19 L.Ed.2d 647 U.S. S.Ct. 309, Smith, (1967); 392 88 v. U.S. rely Plaintiffs five decisions of 2128, (1968); 1118 and S.Ct. 20 They Supreme United Court. States Houghton Shafer, 392 88 v. U.S. Pape, cite first Monroe 365 U.S. (1968). S.Ct. 20 L.Ed.2d (1961), S.Ct. 5 L.Ed.2d 492 held there each these the Court cases remedy the effect that: “The federal no exhaustion. How- supple- [under Act] making ever, each circumstances involved mentary remedy, state and distinguishable clearly the in- sought latter need not be first stant case. fused before the one is invoked.” at Id. both which contains language upon remedy by plain- plain- state relied broadest available tiffs, Long King, chal- judicial statute was tiffs Monroe was a one. lenged Monroe, face. unconstitutional rule was established generally judicial normally that state In administrative cases law lingering as to need not there is some confusion be exhausted before relief sought the federal whether exhaustion will be whether un- courts rejected by Supreme Dan- Plaintiffs also assert Court. that dismissal .476-483, improper dridge, for the reason that the Illinois Act, Security un- Further consideration violates Social S.Ct. 1153. posi- necessary seq. 42 U.S.C. et Plaintiffs’ here. respect tion in this has been considered Indeed, chal- of a statute is lower level administrators. lenged specifically purpose. than as exists for that on its face rather Treatise, Davis, See Administrative Law by plain- relied final case Jaffe, 20.04; Con- Judicial tiffs, Houghton Shafer, Action, pp. trol of Administrative (1968), 20 L.Ed.2d emerging rule inapposite. held also There the Court appear since the ad- be “to exhaustion would resolve cannot demand a futile act” since the adminis- challenge, plaintiff could trator to whom the have not be unless the administrative already position appealed had taken the judicial determina- action make validly challenged rules “were question un- tion of the constitutional correctly petitioner applied [and] necessary. Com- See Utilities * * Public strictly Id. at enforced *.” States, mission United 355 U.S. then, Houghton, no is 539-540, 446, 2 L.Ed.2d 78 S.Ct. particular application more than a of (1958). general require- the rule that is no there King merely take de Damico and inadequate ment to exhaust administra- velopment step special one in the Davis, tive remedies. See Administra- They Rights of Act area cases. Treatise, 1958, tive Law 20.07. cases, hold that in such exhaustion however, ease, In instant as shall not be “where constitution remedy developed, be the administrative challenge sufficiently al is substantial fully plaintiffs available to ade- * * * convening a quate alleged misadmin- deal with King, supra, 392 U. court.” istration of the Illinois statute. S. at 312 at 2131.5 Thus we n. summary, to find a we are unable King only take Damico and to hold abrogation complete of the exhaustion special because of the federal nature Rights quirement in Civil Act cases Rights Act, and actions under the Civil Rather, by plaintiffs. the decisions cited general inadequacy because of the ad flexibility pattern find a we deal sub remedies to with imposing requirement the exhaustion challenges stantial un based special of the im- area. Because face, constitutionality of a statute on its portant aspects of Civil required in exhaustion should be cases, may requirement Act be more combining Any cases these elements. easily dispensed particular cases. with interpretation more plain liberal which however, indicate, This does not tiffs wish to draw from the broad may ignored.6 completely be language by of Damico seems foreclosed given interpretation the narrow that lan We then turn to the guage King. by the Court in proper whether a for dis case .is Thus, inapposite Damico pensing require statutory pro- here where the Illinois ment. not a ease Damico or This is like been visions have held on King where, because the is at statute their face sole is face, unlikely tacked is application by defendants. process will contribute case, process a the administrative anything to the the chal resolution of normally power has the lenge. only challenge Here is alleged wrongs worked reached the result and has same Eastman, 5. The cited Court Damico direct we do here. Eisen 1969) proposition. finding (2d Apparently for this 421 F.2d different, den., them the Court cited MoNeese 91 S.Ct. cert. signal and Monroe with the also.” “See Appeals The Second Circuit Court has recently dealt with the cases cited a laid to In such must be the statute. administration pursue they did. the course serves purpose. theAs sensible an obvious and a Mc- This case like is also aptly said: “Before district Houghton rem Neese or where the state measure takes drastic federal court edy patently inadequate As or futile. major assuming supervision over court, interpreted plain- program, state administrative requires shelter allow Illinois present record tiff must sufficient necessary exceptions ance whenever pro- manner show compatible “provide a livelihood gram consti- her administered violates ap well-being.” permits health and * * rights. can- tutional This “ * * * granting peals from decisions not rule that unconstitution- inade in an is deemed aid amount which ally her- administered when Ill.Rev.Stat.1967, quate.” 11-8.8 ch. explored ave- has not self available days appeal may taken within merely administration, nues and she rendered, if the after decision is speculates system ar- the entire promptly department on an act fails to bitrary.” application, days after it filed. argue however, Plaintiffs, ap Rev.Stat.1967, An ch. 11-8. first this action before pealed decision must reviewed and judge court, require- three it met appellant appear person, to entitled that and Damico that ments counsel, by pre represented to to be dispense is sufficient to with exhaustion. all sent relevant matter contend, result, Any they be other would Ill.Rev.Stat.1967, 23, 11-8.1. claim. ch. delay unfair because of involved Generally, rendered a decision must be the three their suit before unsuccessful filing ap days within agree. judge court. cannot We peal. Ill.Rev.Stat.1967, ch. 11-8.6. administra Judicial review of adverse The sole before action is available. Ill.Rev.Stat. tive judge three the constitution court was seq. face, its ch. et On ality its ex of the statute on face and fully rem appears adequate to a this be However, inappropriate. haustion was wrongs by alleged charged edy for the decision, question was after the sole plaintiff. applied and ex say appropriate. the administrative It was at But haustion became They practice inadequate. point require remedy in this appeal to to de- perceive unfairness contend that it is futile ment arose. no We three defendants know in this. came fendants Plaintiffs because exhausting system to judge and refuse current is bad without first right change point- previously they their state it. remedies as had out, system “bad” at is not to do. their ed its face unsuccessful by plaintiffs’ provides may not even criteria. on its tack face granting exceptions pleaded neces- now be as an for dis for whenever excuse sary compatible customary “provide pensing re a livelihood with alleged well-being.” resulting quirements. Any delay from health and with obtaining problems exceptions proceedings exist unsuccessful concepts Bisen, so need- federalism and 421 F.2d er lessly expressed courts federal con- burdensome Second Circuit similar * omitted.) (Footnote cern : consequences compelling fed- “[T]he sugges- agree pass complaints cannot eral courts all 8. We provision does not authorize tion that this of unconstitutional acts denying level, appeal with- local officials at the lowest exception any high- request al- to the shelter for an out ones, prop- maximum. er be so lowance destructive system depleted current is intrin- because the that such reserve was not sically unsatisfactory only because but action was commenced. allegedly administered in an unsatis- say re Plaintiffs next factory the administra- manner. While undepleted only serve remains because might process inadequate tive exceptions given upon request only change inadequate system, it is not qualified families often are particular to correct within abuses right exception. aware of their to an system. urge “surely Plaintiffs court can those officials take Plaintiffs further contend that protect affirmative action to those inadequate rights” by requiring exceptions alleged can deal given “automatically” qualified fam wrongs only on a case basis authority ilies. no Plaintiffs cite large cannot afford efficient relief to the proposition. allege they Nor do plaintiffs. They class of contend guilty defendants are faith bad unending delays would result if they purposefully nor that discriminate large class of against public some assistance families process the administrative be by keeping secret the existence of ex fore suit could be in federal ceptions. Apparently all claim require court. But there is no such that the defendants have failed to search ment. The was dismissed records for who families representative plaintiff because the had qualify give exceptions and to failed to exhaust her rem exceptions they families re have not edy because the entire class had so —not quested. prepared say We are not purposes failed. The to be served ex requires federal Constitution this. haustion plain would be served if the sought tiff Plaintiffs before the claim that court had first re notwith- standing statute, requirements of the lief from process. the administrative No long delays there are often before there required spectres more than this was and application is action an for an ex- place. administrative chaos out of are ception. However, plaintiffs al- do not Thus, it is our conclusion that is this lege they attempted pursue that have proper not a case in which to an make remedy specifically provided for such exception to the usual exhaustion re- delay by filing appeal days after 30 quirements. The district court therefore any allegation of inaction. Nor is there properly dismissed Count II of the com- indicating that such in is plaint for failure to exhaust an available way inadequate or futile. adequate and state administrative rem- Similarly, allege plaintiffs ex- edy. ceptions are denied for im- frivolous or proper But, again, agree reasons. We once these further with the district alleged improper plaintiffs appealable are decisions have failed state plaintiffs alleged Illinois statute cause of All action. say will not be heard plaintiffs the admin- depriving faults cited arbitrary istration rights of the statute them is of federal are either cor- there through has been no real effort to work rectable unexplored avenues statutory within the scheme. appeal provided by administrative Illinois plainly statute or are frivolous. Finally, plaintiffs complain of

Thus practice contend that the num- whereby spe exceptions procedures ber plainly cial is insufficient are to obtain an “exceptional meet exception” the need. But it is uncontro- of over $135. urge exceptions verted that practice number of is Plaintiffs ar is bitrary and has periodically been in exception increased is denied exceptions reserve of depleted pending procedures in special toto is granted The in U.S.C. 1983 and U.S.C. § rather than the amount subject pay the balance more for $135 all class members special procedures. Plaintiffs’ to the pur- than receive shelter suggestion deter- two grants pose public in their assistance eligibility rather than one. minations this sit- and contend that the cause of provides alone a rational basis This public is that certain Illinois as- uation No more the method now followed. unconstitutionally provisions are sistance required. Dandridge, supra, 397 U.S. at applied the defendants. them 484-486, 90 S.Ct. 25 L.Ed.2d began originally lawsuit Plaintiffs

Thus, proper dismiss also July from the Count II for failure to a cause of of 1968. state This action. their amended lower court’s dismissal of complaint, filed properly amendment was I and III dis-

Counts given by single the trial missed for the reasons after the case remanded court. judge by court. district Accordingly, the of the trial holding The affirms the respects. court is affirmed all are lower court that Affirmed. wrong they must exhaust forum-—-that remedies.

REYNOLDS, Judge (dissent- District ing). district I dissent. granting the motion court erred in is a suit This action welfare class Rights Act, state administra- under the 42 miss.1 Exhaustion applying outset, of defendants dle action At have serious doubts pro- administering power the shelter allowances about the district court Code, Public Aid of the Illinois vision have dismissed the amended 12-14, 12-4.11, Ill.Kev. If secs. this case. Ch. is claimed preliminary Stat., regulation applica and a statute or of state-wide injunction against bility con- unconstitutional, applied permanent plaintiffs, application judges administration if the tinued provisions coupled manner.” these claim injunctive a demand for ambiguity Fouche, involved There relief. Turner precise ascertaining accurately n. in ground dis (1970) ; Wright, the lower on which complaint. plaintiffs’ (1970 ed.), p. the amended Law of Federal 190 missed Courts II was to that court stated Count and cases cited The therein. plaintiffs’ failure to appear of The lower court not to dismissed does However, regarded requiring that it also stated have the exhaust. plaintiffs’ case as one allegations judges, did appear constitutional three it does not “approach requested convening plaintiffs constitutional dimensions the the ju assumption justify majority of the which would such court. regards clearly absent exhaustion this court herein claim risdiction applied” reme state administrative an “as of available constitutional attack. majority original three-judge this herein notes dies.” The ground in court plaintiffs attacking later refers but also were dismissal case stated failure the dismissal face and as action, page opinion, above. in 1358 footnote state cause of their 1 judges original lower to me whether the three complaint note unclear dismissing requisite federal because the failed make court “insubstan for a demand declaration of unconsti- (Wein clearly tutionality injunctive tial,” could do relief which (7th ground Hanrahan, F.2d 461 435 and state that v. this defect traub 1970)), reason other or for to be resolved some have on remand to single judge. powers single remand, of a with the On inconsistent judge properly complaint, heard II filed an amended Count below, begins judges. be discussed of which as follows: As declaratory to whether doubt as “1. This considerable Count seeks a have may judgment unconstitutionality been not have the lower

1360 Rights pro- lying required action Act was ‘to tive is not in an Civil remedies remedy properly brought I dis the federal courts under vide § any agree majority’s interpretation supplementary id., 672, Supreme have,’ is at decisions on S.Ct. [83 Court State 1435], sue v. Cali that Damico at we held that ‘relief under fornia, 416, 526, 19 L. 389 88 may U.S. S.Ct. Act not be defeated Civil (1967), Ed.2d controls this case. 647 sought not first because relief was Further, analytical dis provided under ad- state law [an which appears tinction flow id., remedy,’ at 671 [83 ministrative] relating S.Ct., Pape, Monroe, v. 1435]. See requirement form of constitution 473, 167, S.Ct. [81 365 U.S. (i. e., al applied) to be attack facial or as *” * * 492], Id. at 416- 5 L.Ed.2d par in error. I also believe sup- 417, (Emphasis 88 S.Ct. ticular im class action welfare suit is plied.) proper requiring case for during term, administrative Later the Su- remedies. same preme public as- Court decided another Exhaustion Smith, supra. case, Aft- sistance v. seeking is not before noting er court be- rights vindication of one’s constitutional “correctly adjudicated merits properly low had an action brought Pape, v. controversy requiring ap- 1983. Monroe without 167, 473, 365 U.S. 81 492 S.Ct. 5 L.Ed.2d pellees to exhaust state administrative (1961); Education, v. McNeese Board of remedies,” the Court stated: 668, 373 U.S. S.Ct. argument reject appellants’ “We (1963); California, Damico v. appellees were U.S. 19 L.Ed.2d 647 prior (1967); King Smith, bringing Pursuant this action. (1968); 20 L.Ed.2d 1118 Security Act of the Social Houghton Shafer, 88 S. grant appli that States must AFDC Ct. 20 L.Ed.2d oppor cants who are denied ‘an aid California, supra, pub- Damico v. awas hearing tunity for a fair lic assistance case where the adminis- agency,’ (4) 602(a) State 42 U.S.C. § remedies, out, trative point (1964 ed., provides Supp. II), Alabama substantially identical to those for administrative de review Supreme this case. nials. Alabama for Admin Manual Court stated resort ad- to those I, Assistance, pt. istration of Public pre- remedies was not a II, pp. V-5 to Decisions of this V-12. requisite beginning an action fed- Court, however, plain establish that eral court for relief under the Civil tiff an action under the Rights Act. The Damico court stated: Rights Act, 42 U.S.C. “ * * * three-judge The 1343, District required U.S.C. is not to ex § solely Court complaint remedies, dismissed the haust administrative where appear because ‘it to the Court [ed] the is constitutional suffi that all ciently here, substantial, require failed [had] to adequate to convening administrative court. of a California, remedies.’ This In was Mc error. Damico v. 389 416 U.S. [88 Education, 526, 19 Neese (1967). v. Board of 373 U.S. S.Ct. See L.Ed.2d 647] 1433, 622], 668 Education, S.Ct. [83 10 L.Ed.2d also McNeese v. of Board noting purposes 1433, of 668, one under- L.Ed. U.S. [83 S.Ct. view, type higher disagree of some of factor —a view with I which substantiality standard believe to be error. required where exhaustion was a properly Pape, in cases (1963); 365 haustion not 2d Monroe v. 622] Rights Act. L. S.Ct. [81 U.S. * * *” majority’s Id., only the at not Ed.2d 492] ex- above-quoted, statement about broad 4, page 312, page n. but also me haustion troubles supra, Finally, Houghton Shafer, ap- through majority analysis which pris- brought by a 1983 action pattern flexi- pears to find a broad courts had oner where the lower bility. majority appears formu- The to ex- missed the for failure regarding dichotomy the ex- late a novel remedies, the haust state administrative haustion said, Court 88 S.Ct. 392 U.S. con- form of is related 2120: stitutional attack. The “As we the submission understand majority imply that exhaustion seems to Pennsyl Attorney General governed by 1983 case should be Court, vania the rules following re- not rule: Exhaustion correctly ap prison validly and judicial quired or where the remedies are plied petitioner; these rules are regulation attacked where strictly enforced said unconstitutional; however, on its face throughout sys the entire correctional exhaustion is to be light Pennsylvania. tem in of this the stat- remedies are likely peti it seems ute, etc., regulation, un- is attacked as Deputy tioner to Com constitutional as Correction, missioner of the Commis mechanical above sioner, Attorney or to the General regarding re- distinction would be to demand futile act. quirement Initially, is in error. I be- any event, resort these applied- majority’s lieve unnecessary light our decisions facial attack distinction does not flow Pape, in Monroe v. 183, 180- controlling from the decisions of 492]; [81 S.Ct. 5 L.Ed.2d Supreme Court on 1983 exhaustion Education, McNeese v. Board of quirements. majority’s in- I believe the 668, 671, U.S. 10 L.Ed.2d [83 S.Ct. terpretation in er- of those cases ; California, 62 2] Damico ror. majority’s even the inter- ” pretation appear * * * to me to fur- does (Emphasis supplied.) applied- nish for the as by saying The Court closed that “[o]n facial attack distinction. decisions,” the basis of these lower above, I believe indicated As judgment to be reversed California, stands Damico v. remanded. of ad- proposition that exhaustion majority opinion herein, The after an- prerequi- remedies is alyzing cases, Supreme the above Court under § site to court suit states: con- case alone Damico “ * * * to find a we unable in this case this issue decision of trols abrogation complete of the exhaustion similarity of Damico in Civil Act cases majority However, the the instant case. by plaintiffs. in the decisions cited having “narrowed” been reads Damico as Rather, pattern find we flex- subsequent deci- “limited” ibility imposing the exhaustion re- ap- v. Smith. sion ” * quirement special area. great importance on the parently places King stated phrase I am of the Court Supreme in Court 1983 action cases on do not exhaustion yield “pattern flexibility impos- in not ing chal- but, requirement,” exhaustion remedies “where the here, substantial, rather, yield sufficiently lenge as the broad rule that ex- convening three-judge three-judge could require certain court cases McNeese, cases,2 applied” (Citing and be “as exhaustion would court.” Monroe.) Thus, applied many not cases. states: as plaintiff If a attacked a of state- “ * * and Damico Thus we take applicability wide unconstitu- as King only hold injunctive applied sought tional as special federal nature of actions restraining operation relief and en- Rights Act, and because the Civil statute, three-judge forcement general inadequacy of administra- hence, and, required,4 court would be substantial tive remedies deal with interpretation even under the assumed challenges upon the unconsti- based King question, exhaustion of admin- face, tutionality ex- of a statute istration remedies not be neces- would required in haustion should not be sary. Hence, even the unrealis- above combining Any elements. cases these tically King, interpretation narrow interpretation which more liberal limiting courts, three-judge Damico to draw wish to does not seem to for the furnish language broad Damico seems fore- majority’s applied-facial as attack interpretation closed the narrow tinction. given language by the Court King. anything I do not con- Supreme tained in the recent Court cases “Thus, King inap- Damico requirements exhaustion statutory posite here where the Illinois provisions have been held constitution- ground majori- cases furnishes for the ty’s applied-facial as attack distinction al on the sole their face and where explicitly implicitly. either or challenge application is to de- * * *” page fendants. See A apparently further rationale which (Emphasis supplied.) above. majority’s applied-fa- underlies as King I do not understand can rea- how cial attack appears formulation to be interpreted narrowing sonably “adequacy” or as related to the of the admin- limiting Damico. do not believe applied istrative remedies in as cases. King reasonably the having implies can be read The majority that where at- applied, held that the broad no-exhaustion tack is as the administrative policy “fully summarized enunciated in adequate” remedies are three-judge plaintiffs’ grievances. Damico limited to doI not un- assuming cases.® even such an derstand the form how of the constitu- arguendo interpretation (al- King tional attack can be seen as automatical- though untenable), ly dictating adequacy the ma- of the admin- jority’s applied-facial dichot- attack istrative or other omy Assuming still does not follow. case. Garson, Likewise, requirement See Hall v. F.2d exhaustion (5th 1970). n. 9 I submit that such could turn on whether a constitutional interpretation an of Damico and was made to a of state- unrealistically applicability merely would be wide mechanical or to a local practical applicabili- would make little sense. Read- ordinance statute of limited ing ty. three-judge Damico as limited Two of the three cases cited King, mean, McNeese, court cases under § 1983 would Court Monroe did example, Hough- involve courts. conceivably ton, hinge day supra, King, could on whether or decided the same requests only judgment below declara- for hav- reversed tory ing required declaratory relief or both and in- exhaustion of administrative junctive (Since assuming non-three-judge relief. remedies in a at- court case. applica- tack a statute of state-wide dissenting opinion. n. See bility, require the former claim would not judges, a court of three whereas the IUd. latter judges.) a court of three However, propo- is in- where an individual for the I believe Damico stands resolving volved, potential a there is a not undertake that courts need sition necessity “adequacy” dispute of de- of the the the without to determination as ciding although is, constitutional issues. That as- the remedies. In state suming part the of the desire on the “ade- stated be the remedies were simply agency agency so, do can the quate,” of administrative exhaustion grant Hence, grievance un- the claim or required. remedies was challenge. In derlies the constitutional quiring on the basis exhaustion involving plaintiff in a an instance one “adequacy” the state of administrative administrator, view, dispute misses, low level my central a the might procedure avoid- such a lead to the that “one thrust of Damico which underlying is- ance of a on constitutional purposes a provide sue. ‘to Act a supplementary courts allegations of where class ” Damico, remedy any have.’ State issue, unconstitutionality are at I submit 416-417, always that administrative remedies are (Emphasis supplied.) case, inadequate. In the the ma instant jority plaintiff ex would have named regarding any distinction if This haust her administrative remedies. adequacy action and the the form of the ap in this case attempted the state remedies to be of pears the fact to stem from above, (which, I think un- as indicated plaintiff, herself and named behalf necessary), a more submit that many challenges many, others, uncon logical practical distinction would applied. stitutionality as of the statutes involves in terms of whether action I fail see a difference. how makes grievance the constitu- an individual or exhausting plaintiff the named How does tional of a of individuals. claims class her administrative remedies resolve 5 The class constitutional ? claims my view, cannot claims of the class constitutional aspect, always inadequate, in one are plain by requiring the named be resolved present constitutional constitution tiff exhaust whether the challenges. is, the That applied. as Just or al claims facial agency properly the arbiter cannot hearing agency fair welfare disputes is a constitutional because validity adjudicate aof cannot the facial question. judicial or Where statute regulation, neither can statute or regulation unconsti- is attacked adjudicate properly face, agency cannot tutional pattern application dispute. This resolve that constitutional regulation plaintiffs. or to a class herein. conceded that the admin instances I submit both prop- However, just agency as the cannot inadequate. istrative remedies are erly resolve a constitutional regulation statute, Hence, regard “adequacy” nei- of a or face remedy, my view, they, I am ther can resolve of the state administrative surrounding that, first, dispute constitutional recent Su- regulation preme is un- exhaus- claim that indicate that Court cases turn on the cases does not tion “ * * who, fear, ignorance, or if the others challenges resources, proceed through agency, fail to mount first lack of own, governed clanger agency proceed- to be there is of their continue constitutionality.” ings questionable will terminate in an individual settle- a rule of complaint, Note, Un- Remedies ment which satisfies but Exhaustion State subjects Rights Act, changes 68 Columbia neither the rule der the Civil nor scrutiny. happens, external Where this L.Rev. and, remedy;6 poten- adequacy the state resources. I event, second, majority’s procedure at- in tial of this where- unfairness by requirement tempt “adequacy” admin- of the “arises” relate remedy applied the con- to the form of when the court turns to the “as istrative under 1983 issue” is illustrated in stitutional attack advanced the instant suit. money directly in Plaintiffs’ error.7 claims relate budgets attempt in utilized to to sus- disagree- conceptual In addition tain what are at levels best subsistence regarding majority’s I ments have of existence. Their relate to mat- claims distinction, I applied-facial attack as ters that are immediate and crucial. misgivings also have some about years, plaintiffs After two and one-half practical application distinction of such a told, effect, in over now all start general in in case. the context of this again and to their administra- majority states: tive remedies before their claim under question the three “The sole the Civil any Act be considered constitutionality judge court was the federal courts. on its face and exhaus- inappropriate. tion aft- was regard- I would add one further note decision, er its was sole ing adequacy the actual of the adminis- applied particular trative in this case. appropriate. exhaustion became None of the was told that point that the exhaustion began they originally must exhaust when ” * * * requirement (Em- arose. plaintiff this lawsuit. Now the named phasis supplied.) must exhaust. I my experience exceedingly It is in common is now doubtful that she will court, permitted Chapter when faced with both facial to exhaust.8 challenges, 11-8, applied Ill.Rev.Stat., 1967, in the ma- noted pass upon allegations jority opinion ap- above, the facial first. states that an case, procedure peal such a outlined from an adverse majority agency may days.” would mean that the exhaus- be taken “within 60 plaintiff’s tion in could often Since her “arise” adverse decision on request ongoing (after exemption the middle in of an lawsuit a shelter highly probable Court had considered the facial think it that an va- lidity issue) longer plain- permissible with the result that is no governing tiffs provision agency ap- could find above themselves out of court peals. after expenditure time considerable practical inadequacy 6. For a discussion of some of the difficul cusses the potentially adequacy ties in inherent welfare cases. remedy approach, Note, of the state such as Federal Judicial Review State precisely Practices, a state is to be L.Rev. Welfare 67 Columbia adequate, Chevigny, 84, 103-106, p. Eisen, deemed see Section cited Reply, supra. pages 1983 Jurisdiction: A 83 Harv.L. [See also Rev. 1352 Eisen not articulate a rule Note.] did whether the con- of exhaustion related to above, majority implies

7. At n. 5 facial stitutional attack was Second Circuit the case of Eisen Eastman, (2d 1969), only “remedy” F.2d 560 assume dealing plaintiff reached the same result must exhaust under the mandate problem. majority Eisen. was not a welfare her welfare hearing” suit and it was not a class action. “fair since the concedes analysis Judge judicial his remedies need not ex- Friendly (In stated that was difficult hausted under this connection § 1983. hearings majority opin- see what resort to state fair I do not understand accomplished judicial agen- including could have and referred in ion review regard open cy appeal to a well known article deal- as one of the remedies ing judicial case.) with federal review of state practices welfare wherein the author dis- their administrative ther at this time. from the in this case should sum, ^[131] majority I do not position be I therefore remedies affirming to exhaust any dissent fur- Just subject.” decisions City of this court Redding, California an “insubstantial” L.Ed. Water Service Co. as U.S. to foreclose (1938). federal ground. proper- not lower constitutional claim will court dismissal ly jurisdiction re- found in a case majority page 1355 above The states by quired by its nature to be heard plaintiffs’ that the lower court dismissed judges, a neither will court of three complaint for failure exhaust avail- found claim same constitutional able state administrative remedies jurisdiction properly heard in a case complaint no ‘sub- because “stated single judge. Hence, not a I do ** stantial claim [to] language King from ad- believe that justify assumption jurisdiction verting substantiality of the con- * * * absent exhaustion of available three-judge court stitutional claim in a ” As remedies.’ new, establishing case can read be earlier,9 indicated I low- higher substantiality standard for the opinion er court indicates the court single judge constitutional claim a § may language King have read the of ad- 1983 case before higher requiring v. Smith as some substantiality standard of for constitu- inter- To the extent such be waived. tional claims under 1983 where exhaus- King dis- pretation underlies tion of herein, complaint I dis- missal of required. To the extent that such an agree. interpretation King in- v. Smith was complaint, however, volved in the herein, dismissal of this also disagree. complaint I I do not re- believe that typifies dismissal of ferring substantiality the standard of based below three-judge cases, ac- “[T]he state a claim.10 failure to higher establishing thereby court was complaint should cepted rule [is] standard for 1983 cases in which ex- to state for failure not be dismissed accomplished haustion had not been beyond appears doubt that unless claim plaintiffs. I do not understand facts prove no set can substantiality standard of of the consti- en- claim which his potential three-judge tutional claim ain Gibson, Conley v. him to relief.” title higher than that 41, 45-46, 78 S.Ct. quired single for a 1983 action. The constitutional claim a insuffi- court case it is must “insubstantial.” am the Vincent, present ciently Utica Mutual Insurance record Co. on the clear 1967). en- (2d 375 F.2d 129 of facts prove “The lack set cannot substantiality titling warrant to relief them may appear either this basis. obvious- missal ly without dismiss merit or unsound- because its denied the motion would have clearly previous ness so results from the answer. the defendants 1, supra, dissenting opinion. page 9. See note above. 10. See

Case Details

Case Name: Ella Metcalf, Etc. v. Harold O. Swank, Etc.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 1, 1971

Citation: 444 F.2d 1353

Docket Number: 18136

Court Abbreviation: 7th Cir.