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February 29, 1968

Geraldine SNELL, Miriam Ramos and Juan Malave, Individually and on Behalf of their minor children, and on Behalf of all other Parents of needy, dependent children, and Robert Whaley, Individually and on Behalf of all Others Similarly Situated, Plaintiffs,
George K. WYMAN, as Commissioner, New York State Department of Social Welfare, Mitchell Ginsberg, as Commissioner New York City Department of Welfare, Edna Lisle, as Director and Clara K. Linet as Supervisor, Fort Green Center, New York City Department of Welfare, Defendants

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

The welfare laws and administrative regulations of New York State contain provisions, more particularly described below, which impose upon welfare recipients an obligation to repay the cost of assistance benefits out of specified kinds of assets. The plaintiffs, who have received and are receiving various forms of welfare payments, brought this suit for declaratory and injunctive relief, urging that such provisions are invalid and unenforceable on one or more of several federal constitutional grounds. Predicating federal jurisdiction upon 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331(a), 1343(3) and (4), 2201 and 2202, plaintiffs moved for the convening of a three-judge court under 28 U.S.C. § 2281. The motion was granted. Thereafter, plaintiffs took some depositions, and the parties entered into two stipulations. The result of these steps is a record which, in the view of the court as well as the litigants, adequately poses the constitutional issues upon undisputed facts. Both sides have moved for summary judgment. For the reasons hereafter stated, the court will grant defendants' motion and dismiss the complaint.


 The problems of the plaintiffs which brought them to the welfare authorities and then to this court - problems which cannot fail to evoke profound sympathy from fellow humans, whether or not they warrant revision of New York law by federal judges - may be summarized as follows:

 Plaintiff Geraldine Snell is thirty-three years old, divorced, mother of four children ranging from four to seventeen years of age. She owns an equitable interest, worth about $900 as of September 1, 1967, in a three-room cooperative apartment where she and her children reside. She has a regular, part-time clerical job at which she earns net wages of some $32 per week. Pursuant to court order, she receives $25 weekly from her first husband toward the support of the children. Her second husband, from whom she was divorced in 1966, contributes nothing for her support or the children's. Since September 1965 (financed by state and private scholarship funds), she has been enrolled in a course of full-time college study, scheduled for completion in June of 1969, after which she hopes to pursue a teaching career.

 In February of 1967, Mrs. Snell applied and was found eligible for benefits under the state program of Aid to Families with Dependent Children (AFDC). *fn1" She receives currently what is described in the papers as "a complete, regular budget allowance."

 Purporting to act under sections 104 *fn2" and 360 *fn3" of the New York Social Services Law and accompanying regulations, *fn4" New York welfare officials took from Mrs. Snell a "Pledge Agreement" and "Assignment of Proceeds of Sale" relating to her cooperative apartment. Under the terms of these instruments, Mrs. Snell has obligated herself to repay the cost of all public assistance and care currently being supplied to her and her children, the obligation being secured by her interest in the cooperative apartment and the Commissioner of Welfare being empowered (subject to authority from the State Welfare Department, Social Services Law § 360(2), supra note 3) to sell the apartment and apply the proceeds to his claim for assistance furnished. According to the terms of section 360(2), supra note 3, the mortgage may not be enforced or assigned without the written consent of the State Department of Social Services while the apartment is occupied by Mrs. Snell and her children, and, further, "such consent shall not be given unless it appears reasonably certain that the sale will not materially adversely affect the welfare" of the Snell children.

 Plaintiff Miriam Ramos is the nineteen-year-old mother of three children, all under the age of three, who are dependent upon her alone for support. Her husband is in jail. Since 1963 Mrs. Ramos has been a recipient of AFDC benefits. On February 26, 1967, Mrs. Ramos and her oldest child were injured in an automobile accident. Three months later she was requested, as a condition to her continued receipt of public assistance, to execute an "Assignment of Proceeds of Lawsuit," a document which assigns (to the extent of assistance received) to the Department of Social Services the proceeds of any personal injury claim arising out of the accident. The assignment was taken pursuant to the general obligation set out in N.Y. Social Services Law § 104, *fn5" and the more specific authority of § 104-a. *fn6"

 The third plaintiff, Juan Malave, is the father of eight minor children. He earns $86 weekly and is the sole support of his wife and family. Prior to 1967 Mr. Malave had received AFDC benefits for brief periods, in 1955 and 1965. However, in March, 1967, he suffered personal injuries on the premises of the public housing project where he lives, and was unable to continue working; for several months the family received emergency AFDC assistance and disability insurance checks. In March, 1967, plaintiff Malave received $400 from the New York City Housing Authority as compensation for his injuries. These funds have been exhausted in providing necessities for the family.

 The New York recovery provisions have been applied to Mr. Malave in the following ways: by requiring the endorsement over to the Department of Social Services of one of three disability insurance checks; and by asserting on June 13, 1967, a "Notice of Lien" in the amount of $420.29 for assistance furnished since the accident and after the receipt of the Notice. The same provisions invoked against plaintiff Ramos were the claimed authority in the case of Mr. Malave. *fn7"

 Plaintiff Helen Marley is a sixty-eight year old chambermaid who has worked for the YWCA since 1954. She currently earns $30 for a twenty-hour work week and supports herself solely on this salary and Social Security benefits totalling $86 a month. Her only asset is a $600 bank account.

 In 1943 Miss Marley became ill with cancer, and from 1945 to 1954 she was sustained on public assistance totalling $4,000. During this time of sickness and despondency, she assigned to the Department of Social Services an insurance policy on her life. With the help of a cousin Miss Marley finished paying the premiums on this policy in 1967. However, the insurance company will not release the proceeds of the policy to plaintiff Marley because of the prior assignment to the Department of Social Services. The statutory authority for the public welfare official's action is section 105 of the Social Services Law. *fn8"

 Robert Whaley is a twenty-six year old welfare recipient who lost his right leg in an accident on a New York City subway platform on July 31, 1966. Prior to this misfortune plaintiff Whaley earned his living as a free-lance photographer, a career which he hopes to resume. Eleven months after the accident, on June 30, 1967, Mr. Whaley applied for assistance in the form of Aid to the Permanently and Totally Disabled (APTD). *fn9" As a condition to granting this aid, the Department requested and received, pursuant to section 104-a, *fn10" an "Assignment of Proceeds of Lawsuit," which imposes the obligation to repay assistance out of the eventual personal injury recovery, if any, that plaintiff receives.

 In addition to the foregoing facts, which are not in dispute, plaintiffs have adduced some deposition testimony bearing mainly upon a species of "constitutional fact" - consisting, at least in large measure, of expert judgments designed to show that the New York repayment requirements are onerous, destructive of morale, and, generally, so negative in their impact on effective rehabilitation as to be arbitrary and irrational. Such testimony emanates mainly from Miss Barbara Lounds, a social work consultant, and Dr. Charles Grosser, assistant professor at the New York University School of Social Services, both extensively experienced in working with and for poor people. Among other things, these experts state that assignments of life insurance policies deprive welfare recipients of an effective symbol of independence and accomplishment; that there is similar symbolic import in the family home or apartment; that assignments of personal injury claims breed "tremendous resentment;" and that, in general, "any social work purpose in the recovery provisions is quite beyond * * * comprehension." Moreover, these witnesses testify, enforcement of the recovery requirements tends to cause return to the welfare rolls of people who might otherwise postpone or avoid such renewed dependence.

 Also in the record are depositions of the defendant Commissioners - both of whom, as the court may notice, have careers of recognized distinction for scholarship and active service in the field of social work. *fn11" Both Commissioners acknowledged that there are imperfections in existing welfare programs, and indicated their concern to seek improvements. Commissioner Ginsberg reaffirmed his published view that welfare assistance should be (though it may not be by either the state or federal legislature) viewed "as an entitlement and a right rather than as a handout." Neither found the recovery requirements significant deterrents to seeking welfare benefits though Commissioner Ginsberg listed a variety of reasons (pride, resentment of investigative procedures, etc.) why eligible people fail to apply. Commissioner Wyman expressed the view that the New York repayment requirements, as they are administered and limited, have no adverse effect upon the desire to become self-supporting. Asked if the provisions affirmatively promote this desire, Commissioner Ginsberg said:


"I don't know that they do basically. You have, of course, a dual responsibility.


"One is to the client and the other is to the accountability of the appropriate use of the public funds. * * * I think this provision goes to the second objective."


 Before stating and ruling upon plaintiffs' contentions, it will be useful to note the dimensions and the context of our problem. On the facts before us, recipients of assistance under the programs involved are subject to three forms of repayment obligation:


(1) A lien on interests they own in real property - specifically, Mrs. Snell's interest in her cooperative apartment.


(2) A lien on potential or actual recoveries for personal injuries - illustrated here in the cases of plaintiffs Ramos, Malave, and Whaley.


(3) An assignment of the interest of an insured recipient in life insurance policies, evidently under New York Social Services Law § 105, which allows for recovery of welfare assistance payments from such policies in cases where "the estate of the assured is named as beneficiary, or no beneficiary is named" - the subject of complaint by plaintiff Marley.

 While § 104 of the New York Social Services Law (note 2, supra) appears on its face to authorize public welfare officials to recover "the cost of * * * assistance or care" from any "real or personal property" of the recipient (subject to a 10-year limitations period), authoritative regulations substantially limit this power. Notably, it is provided by regulation, and unequivocally represented to this court, that no such recovery may be sought from wages or salaries or from property acquired with such earnings. *fn12" This restriction, if we had nothing more before us, could probably be taken as an authoritative confinement of the statutory power, cf. Phyle v. Duffy, 334 U.S. 431, 441, 68 S. Ct. 1131, 92 L. Ed. 1494 (1948); Gerende v. Elections Board, 341 U.S. 56, 71 S. Ct. 565, 95 L. Ed. 745 (1951), discussed in Whitehill v. Elkins, 389 U.S. 54, 19 L. Ed. 2d 228, 88 S. Ct. 184 (1967), and would probably be enforceable against the welfare authorities in any event, Yellin v. United States, 374 U.S. 109, 121, 83 S. Ct. 1828, 10 L. Ed. 2d 778 (1963); Service v. Dulles, 354 U.S. 363, 379-380, 77 S. Ct. 1152, 1 L. Ed. 2d 1403 (1957); U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681 (1954); Bridges v. Wixon, 326 U.S. 135, 153, 65 S. Ct. 1443, 89 L. Ed. 2103 (1945). Moreover, we have no plaintiff before us from whom recovery has been sought out of the fruits of gainful employment and no suggestion in the record that the regulation and representations denying any such practice are not accurate reflections of the facts. Accordingly, whether or not it makes a constitutional difference, it is worth mentioning that none of the provisions plaintiffs attack have any deterrent or discouraging effect upon the incentives of welfare recipients to improve their lot by seeking and engaging in productive employment.

 To complete this brief sketch of our context, it may well be of at least some constitutional significance (as we note again below) that provisions for repayment by persons who receive welfare assistance are contained in the laws of some thirty-two states. *fn13" And the only decisions on the subject disclosed by our research have rejected constitutional attacks generally similar to those mounted by plaintiffs in this case. Lalic v. Chicago, Burlington & Quincy R.R., 263 F. Supp. 987 (N.D.Ill.1967); Newland v. Child, 73 Idaho 530, 254 P.2d 1066 (1953); Beck v. Buena Park Hotel Corp., 30 Ill.2d 343, 196 N.E.2d 686 (1964); Donoho v. O'Connell's Inc., 18 Ill.2d 432, 164 N.E.2d 52 (1960); Dimke v. Finke, 209 Minn. 29, 295 N.W. 75 (1940); Wallberg v. Utah Public Welfare Comm., 115 Utah 242, 203 P.2d 935 (1949). *fn14"


 While plaintiffs' briefs are neither terse nor tightly organized, their constitutional arguments appear ultimately to fall under three headings: first, that the state recovery provisions deny the due process guaranteed by the Fourteenth Amendment; second, that they deny the equal protection of the laws required by that Amendment; and, third, that they conflict with federal social security legislation, thus contravening the Supremacy Clause of Article VI, Clause 2. We consider the arguments in the order stated. *fn15"

 Due Process

 1. Alleged irrationality of the legislative judgment

 The repayment provisions are said by plaintiffs to be arbitrary, oppressive, and irrational. This is so, they say, because the State, by this requirement, defeats its own stated objective of seeking to make welfare recipients productive and self-supporting. Further, they argue, by demanding liens upon small property interests or contingent rights to recover for personal injuries, the statutes "tend to frustrate desire for human dignity and independence." Citing their deposition witnesses expert in the field of social work, they urge that the assignment of real property interests "is disastrous from a social work point of than realty has similar consequences of affronting human dignity and impeding the objective of rehabilitation. Plaintiffs denounce as trivial and insufficient what they find to be the "only conceivable rationale" of these recovery provisions - "to attempt to save the state money." The objective cannot justify the hurt, they say, and is not really served in any case because the amounts recovered are minuscule in comparison with the total of welfare expenditures. *fn16" Among the vicious consequences of the State's recovery demands, plaintiffs report, is the refusal of people eligible for welfare benefits to apply for them because they are unwilling to have liens put upon their real property, insurance policies, or personal injury claims.

 We do not stop to analyze these arguments in particular detail. We note only by the way some patent difficulties in the things plaintiffs say: (1) Their major thesis that the State has undercut its own statutory objective of rehabilitation is hardly a point going to federal due process. (2) If it mattered, we might doubt the standing of persons accepting assistance to complain that other, unidentified people refuse welfare payments because of the conditions plaintiffs question. (3) There is no point in dwelling upon the repeated suggestion that personal injury recoveries are designed to make people "whole," so that exactions from such funds deny due process by making them less than "whole." It seems sufficient to say that the Constitution we are supposed to expound gives us no authority to follow the figurative trails of metaphors like this. *fn17"

 Apart from such passing observations, we assume that rational men could agree fully with plaintiffs' view that the painful consequences of the recovery statutes outweigh the measurable benefits the State seeks from them. We also accept without questioning the view of the scholar who testified in his deposition that "any social work purpose in the recovery provisions is quite beyond [his] comprehension." The plain flaw that none the less destroys plaintiffs' thesis is that it is brought to the wrong forum. Plaintiffs' complaints might move us to vote for changes if we sat as state legislators. But they do not approach the showing of irrationality or arbitrariness warranting exercise of the limited veto power of the federal judiciary under the Fourteenth Amendment.

 Against plaintiffs' views, as defendants point out, there are arguments of policy which can scarcely be dismissed as frivolous, whether or not we would find them convincing if the judgments of policy were for us. The State is entitled, they note, to consider relative need and available resources in distributing its limited welfare funds. Even "trivial" recoveries like $5,000,000 need not be deemed beneath notice. Whether they are correct or not, legislators could plausibly judge that a sense of obligation to contribute or repay if possible serves some function relevant to the concern for human dignity. Moreover, the objectives of rehabilitation and selfsupport are not seriously impeded at all; by exempting earnings, the statutes, as they are administered, leave wholly unfettered the desire and search for independence through gainful work.

 We sketch these countervailing points for the single purpose of indicating what seems plain to us - that we could hold the statutes unconstitutional only if we were invested by the "convenient vagueness" of the Due Process Clause *fn18" with a power, long since denied us, to invalidate state laws "because they may be unwise, improvident, or out of harmony with a particular school of thought." Williamson v. Lee Optical Co., 348 U.S. 483, 488, 75 S. Ct. 461, 464, 99 L. Ed. 563, (1955); see also Nebbia v. People of State of New York, 291 U.S. 502, 537-538, 54 S. Ct. 505, 78 L. Ed. 940 (1934); Olsen v. State of Nebraska, 313 U.S. 236, 246-247, 61 S. Ct. 862, 85 L. Ed. 1305 (1941); Queenside Hills Co. v. Saxl, 328 U.S. 80, 82-83, 66 S. Ct. 850, 90 L. Ed. 1096 (1946); Day-Brite Lighting, Inc. v. State of Missouri, 342 U.S. 421, 423, 72 S. Ct. 405, 96 L. Ed. 469 (1952); Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 47-48, 86 S. Ct. 1254, 16 L. Ed. 2d 336 (1966). To be sure, cases like those just cited reflect mainly the recognition of our highest Court during the last thirty years or so that it does not sit as final arbiter of state social policies affecting matters of business and industrial regulation. (Note, however, the claims of personal "liberty" involved in Ferguson v. Skrupa, 372 U.S. 726, 729-732, 83 S. Ct. 1028, 10 L. Ed. 2d 93 (1963); Fay v. People of State of New York, 332 U.S. 261, 281, 294-296, 67 S. Ct. 1613, 91 L. Ed. 2043 (1947); Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 28 30-33, 25 S. Ct. 358, 49 L. Ed. 643 (1905).) And, it is said, the subject of welfare administration, where the primitive needs of desperate people are at stake, is altogether different. There is a difference, certainly, but not a constitutional one - not any that commissions us to tell those the people elect how they should resolve competing values of the kind here in question. *fn19"

 It is appropriate from time to time to appreciate the full measure and continued vitality of what Mr. Justice Holmes meant when he said: "The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics." Lochner v. State of New York, 198 U.S. 45, 75, 25 S. Ct. 539, 546, 49 L. Ed. 937 (1905) (dissenting). Now that his dissenting thought has won the day, we ought not to trivialize the achievement by viewing it only as the interment of Spencer's social doctrines. The principle applies to the social philosophers that most of us, including judges, find more persuasive than Spencer. If we were free to enforce what we may modestly deem our more enlightened view, we might seriously consider the changes plaintiffs propose. But we have no such power, and it is better in the end for everyone that this is so.

 We were reminded only the other day, though the context was different, of the basic principle: "The purpose of the Constitution and the Bill of Rights, unlike more recent models promoting a welfare state, was to take government off the backs of people." Schneider v. Smith, 390 U.S. 17, 25, 88 S. Ct. 682, 19 L. Ed. 2d 799 (1968). The principle counsels that it is not for federal judges to be "liberal" or "conservative" in advancing and ordering measures which undoubtedly relate to basic matters of human decency and welfare. The constricted test in this forum is one of minimal rationality. By that test plaintiffs' due process argument must fail.

 2. The charge of vagueness

 There is a suggestion in plaintiffs' brief, somewhat obscurely expressed, that the New York recovery provisions deny due process because of the overbreadth with which they are drawn. The "vagueness" is said to inhere in the grant of discretion by which public welfare officials " may " demand assignments, enforce liens, or institute recovery actions. See N.Y. Social Services Law, §§ 104, 104-a, 105, and 360, notes 2, 3, 6, and 8 supra. It is not altogether clear whether the argument is meant as a proposed extension of the void-for-vagueness doctrine as it applies to problems of free expression, e.g., Kunz v. People of State of New York, 340 U.S. 290, 293-294, 71 S. Ct. 312, 95 L. Ed. 280 (1951) and criminal liability, e.g., Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939), or whether the claim relates to a supposed excess in delegating power to administrators. On either formulation, the position is not sound.

 The problem of "delegation," so denominated, may be put quickly to one side. The separation-of-powers principle, however pervasive it may be in American governments, is not in itself enforceable against the States as a matter of federal constitutional law. See Sweezy v. State of New Hampshire, 354 U.S. 234, 255, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957).

 Viewed as a charge that the state statutes are fatally "vague and standardless," Giaccio v. State of Pennsylvania, 382 U.S. 399, 402, 86 S. Ct. 518, 15 L. Ed. 2d 447 (1966), plaintiffs' theory fares no better. To begin with, it is not the case that the public welfare officials are left at large in enforcing the recovery provisions. The statutory complex reveals pertinent criteria, *fn20" including notably the mandate in Social Services Law § 131(1) that the responsible officials must, "whenever possible, administer such care, treatment, and service as may restore * * * [needy] persons to a condition of self-support or self-care * * *." This guideline would appear, at least in part, to account for the significant exemption, by administrative regulation, for employment earnings.

 Apart from the fact that the statutory subject matter provides explicit and implicit considerations to channel the exercise of discretion, plaintiffs' attack upon the existence of such leeway suggests an essentially absurd alternative of mandatory enforcement. Would they, or anyone, be better off if the statutes said welfare officials "must" rather than "may" insist upon recovery in every case? *fn21" The rhetorical question calls to mind the numerous and inescapable areas where decisions on the invocation of enforcement powers must be and are confided to discretion - for example, in pardoning, prosecuting, and sentencing. To argue, as plaintiffs do, that the very existence of such latitude offends the Federal Constitution is to suggest a fantastic judicial power to stop the States from governing. Cf. e.g., Oyler v. Boles, 368 U.S. 448, 454-456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962); Williams v. People of State of New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949); Moog Industries, Inc. v. F.T.C., 355 U.S. 411, 413, 78 S. Ct. 377, 2 L. Ed. 2d 370 (1958); Gross v. Bishop, 377 F.2d 492, 494 (8th Cir. 1967); Moss v. Hornig, 314 F.2d 89 (2d Cir. 1963); United States v. Shaughnessy, 180 F.2d 489, 491 (2d Cir.) 1950). *fn22"

 This is not to say, of course, that the power to mitigate the law's literal exactions is beyond constitutional scrutiny. Arbitrary or invidious application in any area may trangress the bounds of fundamental fairness and equality set by the Fourteenth Amendment. Cf., e.g., U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268, 74 S. Ct. 499, 98 L. Ed. 681 (1954); Continental Baking Co. v. Woodring, 286 U.S. 352, 367-368, 52 S. Ct. 595, 76 L. Ed. 1155 (1932); Corporation Commission v. Lowe, 281 U.S. 431, 438, 50 S. Ct. 397, 74 L. Ed. 945 (1930); Yick Wo v. Hopkins, 118 U.S. 356, 366, 6 S. Ct. 1064, 30 L. Ed. 220 (1886); Gross v. Bishop, supra, 377 F.2d at 495. But there is no showing by plaintiffs of capriciousness or irrational discrimination in the application of the recovery provisions, either generally or, more importantly, to plaintiffs themselves. Urging that the statutes be erased sweepingly on their face, plaintiffs ignore the fact that the discretion conferred upon administrators is subject to test and check both in administrative "fair hearings," N.Y.Social Services Law §§ 304(4) (APTD) and 353(2) (AFDC), and on judicial review under N.Y. CPLR Article 78. Cf. Laackman v. McManus, 43 Misc.2d 382, 251 N.Y.S.2d 191 (Sup.Ct.1964); Greenwood v. Taylor, 270 App.Div. 849, 60 N.Y.S.2d 452, rearg. denied, 270 App.Div. 1024, 63 N.Y.S.2d 216 (1946). And see Bourjois Inc. v. Chapman, 301 U.S. 183, 189, 57 S. Ct. 691, 81 L. Ed. 1027 (1937); American Power & Light Co. v. S.E.C., 329 U.S. 90, 105, 67 S. Ct. 133, 91 L. Ed. 103 (1946).

 Plaintiffs are wrong in believing that this is a case appropriate for holding statutes invalid on their face. This is not a situation, like that most familiarly encountered under the First Amendment, where the very existence of the enactment serves to "chill" or otherwise impair the exercise of protected freedoms. E.g., Thornhill v. State of Alabama, 310 U.S. 88, 98, 60 S. Ct. 736, 84 L. Ed. 1093 (1940); NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963). In other contexts, even where criminal liability is in issue, the adequacy of the statutory message is normally to be appraised "not only in terms of the statute 'on its face' but also in the light of the conduct to which it is applied." United States v. National Dairy Products Corp., 372 U.S. 29, 36, 83 S. Ct. 594, 600, 9 L. Ed. 2d 561 (1963). That restraining principle applies a fortiori to the statutes here in question.

 Equal Protection

 Considerations similar to those just canvassed apply to this branch of plaintiffs' argument.

 Plaintiffs list several "discriminations" which result, in their view, in a denial of equal protection:


(1) That the State supplies many benefits for which it does not seek repayment - Medicaid, public education, free milk, museums, etc.


(2) That the State discriminates between those who have property and those who do not.


(3) That the State makes arbitrary and indefensible distinctions when it puts liens on personal injury claims but exempts from such burdens workmen's compensation awards and benefits paid under the Volunteer Firemen's Benefit Law, McKinney's Consol.Laws, c. 64-a.

 There is no "logic" in such distinctions, plaintiffs say. But neither the inapposite appeal to "logic" nor any ground of constitutional law supports their view.

 Like the life of the law generally, the Fourteenth Amendment was not designed as an exercise in logic. It is ancient learning by now that a classification meets the equal protection test "if it is practical, and is not reviewable unless palpably arbitrary." Orient Insurance Co. v. Daggs, 172 U.S. 557, 562, 19 S. Ct. 281, 282, 43 L. Ed. 552 (1869). If the classification has "some reasonable basis," it cannot be held offensive to the Equal Protection Clause "because it is not made with mathematical nicety or because in practice it results in some inequality." Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 340, 55 L. Ed. 369 (1911). "The problems of government are practical ones and may justify, if they do not require, rough accommodations, - illogical, it may be, and unscientific." Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S. Ct. 441, 443, 57 L. Ed. 730 (1913).

 Measured against such familiar teachings, plaintiffs' arguments verge upon (or reach) the frivolous. *fn23" It will be sufficient to discuss briefly their relatively plausible contention that the exemptions for workmen's compensation and volunteer firemen's awards render invalid the lien upon personal injury claims.

 The special concerns which led to singling out the groups benefited by workmen's compensation laws are too well known by now to warrant restatement here. In a way, plaintiffs' views on this subject are reminiscent of unsuccessful arguments in another era that the laws were invalid because they excluded from coverage some classes of working people. E.g., Middleton v. Texas Power & Light Co., 249 U.S. 152, 157-160, 39 S. Ct. 227, 63 L. Ed. 527 (1919); New York Central R.R. v. White, 243 U.S. 188, 208, 37 S. Ct. 247, 61 L. Ed. 667 (1917). However that may be, there are characteristic features of New York's Workmen's Compensation Law, McKinney's Consol. Laws, c. 67, which further the refutation of plaintiffs' position. Section 33 of that Law exempts benefits "from levy, execution and attachment or other remedy for recovery or collection of a debt." There is no comparable general exemption for personal injury recoveries. Workmen's compensation benefits are generally given in small, periodic payments under schedules which exclude the kinds of uncertain and potentially substantial recoveries in personal injury suits for pain and suffering.

 Equally pertinent details bear mention, without being essential, on the subject of benefits for volunteer firemen. The statutes providing such benefits declare and assume a public debt to volunteer firemen for "service which [they] render to others without remuneration." N.Y. Volunteer Firemen's Benefit Law § 2. In this way, the State undertakes both to encourage service of this kind and to recognize a "moral obligation" upon the community to compensate at least for injury or death incurred in the line of such duty. See Bauman v. Town of Irondequoit, 204 Misc. 494, 500, 122 N.Y.S.2d 47, 52, aff'd, 282 App.Div. 916, 125 N.Y.S.2d 250 (1953), aff'd 307 N.Y. 926, 123 N.E.2d 574 (1954).

 The exemptions plaintiffs attack do not approach the kind of caprice which could generate serious doubts under the Equal Protection Clause. We agree with and follow the views of Justice Schaefer, rejecting for a unanimous Court essentially the same arguments under an essentially similar statutory scheme. Donoho v. O'Connell's, Inc., 18 Ill.2d 432, 164 N.E.2d 52, 55-56 (1960):


"It is true that the statute does not provide comprehensively for a lien upon all potential assets that might be or become available to a recipient. But the validity of legislation does not depend upon complete comprehensiveness, nor does the constitution require that it conform to an ideal pattern of orderliness. It is enough if the selection of subjects for inclusion and exclusion rests upon a rational basis. * * * We think that such a basis exists here.


"The Workmen's Compensation Act, the Workmen's Occupational Diseases Act and the Wrongful Death Act fix maximum limits of recovery, regardless of the extent of the actual loss that was sustained. Payments under the Workmen's Compensation and Occupational Diseases acts are ordinarily made periodically and liens upon those payments are forbidden. Ill.Rev.Stat. 1959, chap. 48, pars. 138.21, 172.56. * * * The limited recoveries under these statutes do not include an allowance for pain and suffering, an element of damage which looms large in personal injury cases. It is common knowledge that the amounts recovered under these statutes are far smaller than amounts recovered in common-law actions. These are genuine differences of situation, which will support legislative classification. Furthermore, the small amount of the periodic payments under the Workmen's Compensation and Occupational Diseases acts might make collection a difficult and expensive task, and the legislature could properly act upon this practical consideration."

 See to similar effect the cases cited at the end of "II," supra.

 A few words should be added to deal with plaintiffs' reliance upon recent decisions which have struck down statutes requiring a prior period of state residence as a condition of eligibility for welfare assistance, Thompson v. Shapiro, 270 F. Supp. 331 (D.Conn.1967); Green v. Department of Public Welfare, 270 F. Supp. 173 (D.Del.1967); Smith v. Reynolds, 277 F. Supp. 65 (E.D.Pa.1967), *fn24" and upon a decision invalidating a state regulation which made the immoral conduct of the mother grounds for denying AFDC assistance to her children, Smith v. King, 277 F. Supp. 31 (M.D.Ala.1967). We do not presume to question any of these cases, the results of which are scheduled for early examination by the Supreme Court. *fn25" It is enough to say that they are clearly distinguishable from this one. Residence requirements, resulting in denials of aid, as compared with grants conditioned upon obligations to repay, touch an always delicate subject of discrimination favoring state residents over non-residents. They have been thought, moreover, by the courts finding invalidity, to trench upon a specifically defined constitutional freedom, the right of interstate travel as it was specifically enforced in Edwards v. People of State of California, 314 U.S. 160, 62 S. Ct. 164, 86 L. Ed. 119 (1941). The differences from the situation before us are patent. Similarly far removed is the problem presented by secular commandments that would visit upon children the sins of their parents.

 The Supremacy Clause

 The Social Security Act contains among its provisions for aid to families with dependent children the statement of a federal purpose to enable recipients of assistance "to attain or retain capability for * * * maximum self-support and personal independence * * *." 42 U.S.C. § 601. Similar language appears in the titles relating to assistance for the blind and disabled. 42 U.S.C. §§ 1201, 1351. Plaintiffs say the New York recovery provisions are in irreconcilable conflict with these federal statutes. The argument lacks merit.

 As noted already, New York specifically exempts wages and salaries from the repayment obligation. The statutes plaintiffs attack reach only to property already owned or to acquisitions which have more or less the character of "windfalls" - at least in the sense that such acquisitions do not result from purposeful efforts to "attain or retain capability for self-support or self-care." 42 U.S.C. § 1351.

 This alone would appear to refute plaintiffs' claim of inconsistency. *fn26" At any rate, this is certainly not a case where "the repugnance or conflict is so 'direct and positive' that the two acts cannot 'be reconciled or consistently stand together.'" Kelly v. Washington, ex. rel Foss Co., 302 U.S. 1, 10, 58 S. Ct. 87, 92, 82 L. Ed. 3 (1937). And although it is true that "[local] regulations which would pass muster under the Due Process Clause might nonetheless fail to survive other challenges to constitutionality that bring the Supremacy Clause into play," Bibb v. Navajo Freight Lines, 359 U.S. 520, 529, 79 S. Ct. 962, 967, 3 L. Ed. 2d 1003 (1959), "unless the state law, in terms or in its practical administration, conflicts with the Act of Congress, or plainly and palpably infringes its policy," Southern Pacific Co. v. State of Arizona, ex rel. Sullivan, 325 U.S. 761, 766, 65 S. Ct. 1515, 1518, 89 L. Ed. 1915 (1945), the Supremacy Clause is not violated.

 There are other, perhaps more decisive answers to plaintiffs' theory. The federal statutes say nothing about repayment, except to recognize and make provision for at least some forms of recovery from people who have received assistance. In providing for computation of grants to the States, the Social Security Act declares that each State's periodic grant is to be "reduced by a sum equivalent to the pro rata share to which the United States is equitably entitled, as determined by the Secretary of Health, Education, and Welfare, of the net amount recovered during any prior quarter by the State * * *." 42 U.S.C. § 603(b)(2) (AFDC), § 1353(b)(2) (APTD). If these provisions do not positively authorize, they certainly accommodate hospitably, the repayment obligations plaintiffs assail.

 Plaintiffs cite committee reports referring to the originals of the foregoing statutes where it was observed that the States might be collecting back from recipients (or their estates) and that such recoveries might happen, "for example, because those persons had been defrauding the State * * *." H.R.Rep.No. 65, 74th Cong., 1st Sess. 17 (1935); S.Rep. No. 628, 74th Cong., 1st Sess. 29 (1935). From these items of legislative history, plaintiffs reason that (a) the "example" of recoveries for fraud was meant to be exhaustive and (b) the implication is to forbid any other kind of recoveries. The reasoning is heady but unpersuasive.

 Concluding the thin subject of plaintiffs' Supremacy argument, we recall the wide prevalence among the States of statutes like those in question; the duty of HEW's Secretary to disapprove, and withhold federal funds from, unlawful state programs, 42 U.S.C. §§ 304, 604, 1204, 1354; cf. Smith v. King, 277 F. Supp. 31, (M.D.Ala.1967); and the apparent acquiescence of Congress (including steady appropriations) over the years in state arrangements which are so common that they must be deemed to be known at least to the responsible and interested Committees of the Congress. There is authoritative weight both in the practical administrative construction by those responsible for the federal programs, United States v. Republic Steel Corp., 362 U.S. 482, 490 n. 5, 80 S. Ct. 884, 4 L. Ed. 2d 903 (1960); F.T.C. v. Mandel Brothers, 359 U.S. 385, 391, 3 L. Ed. 2d 893, 79 S. Ct. 818 (1959); F.H.A. v. Darlington, Inc., 358 U.S. 84, 89-90, 79 S. Ct. 141, 3 L. Ed. 2d 132 (1958); McLaren v. Fleischer, 256 U.S. 477, 481, 41 S. Ct. 577, 65 L. Ed. 1052 (1921), and the seeming acceptance (and support) by the Congress itself of the measures plaintiffs denounce, e.g., cf. Ivanhoe Irriq. Dist. v. McCracken, 357 U.S. 275, 293, 78 S. Ct. 1174, 2 L. Ed. 2d 1313 (1958); Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116, 67 S. Ct. 1129, 91 L. Ed. 1375 (1947); Brooks v. Dewar, 313 U.S. 354, 360, 61 S. Ct. 979, 85 L. Ed. 1399 (1941); Alaska Steamship Co. v. United States, 290 U.S. 256, 262, 54 S. Ct. 159, 78 L. Ed. 302 (1933). Against arguments as tenuous as the ones plaintiffs marshal, such considerations alone would be sufficient to sustain the state legislation.

 We conclude, in sum, that the complaint is without merit. Judgement will be entered ordering its dismissal. *fn27"

 It is so ordered.

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