281 F. Supp. 853

DISSENTING OPINION
IRVING R. KAUFMAN, Circuit Judge;
I do not dispute several commonplace principles set forth in the majority opinion. For example, I agree that the State of New York has the primary responsibility to develop standards for the distribution of the resources allocated to public assistance programs in which it has elected to participate. I agree also that the state may legitimately attempt to conserve resources by imposing some obligation to repay on persons who receive assistance. Nor do I take issue with the well established precept that federal courts sitting in constitutional judgment of state statutes should be guided by counsels of self-restraint so that “ill starred adventures of the judiciary [do not] jeopardize its essential usefulness.” R. JacÉson, The Struggle for Judicial Supremacy 321 (1941). My point of difference with the majority turns on whether the means adopted by the State of New York economically and effectively to further the objectives of public assistance deprive these recipients of the liberty and equality secured to them by the Fourteenth Amendment.
/'Where the state regulates or interferes with fundamental aspects of freedom, “precision of regulation must be the touchstone.”) Griswold v. State of Connecticut, 381 U.S. 479, 498, 85 S.Ct. 1678, 1689, 14 L.Ed.2d 510 (1965), quoting NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). If a statute or regulation impinges on critical personal interests, we are required to subject it to closer scrutiny, and to search with care for adequate justification. We must ascertain, therefore, whether the restriction is reasonably related to the public interest the legislature sought to secure, and if it could have been as effectively secured with less abrasive impact on the personal right involved. Because I believe the scheme designed by New York does not withstand the requisite inquiry, I disagree with my brothers. I hasten to add that I do not dissent because I believe that it is beyond the power of the state to devise a rational recovery provision. Instead, I am of the view that (by reason of the seriousness of the personal interest involved, the inelegance of the scheme designed, the ease of correcting it by more discriminating methods, and the insubstantiality of the interest served, the State of New York has not acted with adequate precision.''') Where substantial challenge is made to state regulations impinging upon increasingly important yet largely overlooked aspects of personal liberty, I believe the federal courts are obligated to do more than dismiss the complaint with facile reference to judicial attitudes toward state attempts to regulate business interests in order to foster personal dignity.
The recovery obligation as enforced by New York City fails to meet the test of minimal rationality, (it does not distinguish between true and substantial windfalls that are unrelated to the capacity to retain self-support and property acquired by purposeful effort that is essential to maintain whatever level of independence the welfare recipient has 'achieved. The policy of exempting accumulated income from attachment is concededly designed to meet this required '’distinction. I would hold, however, that the state is constitutionally required to go further and to exempt a modest interest in real property or insurance and at least some part of damages recovered for personal injury. It may be true that the Constitution does not impose an affirmative obligation • on the state to create the circumstances in which people will become independent and self-supporting. But I do suggest that it does prohibit the State from placing obstacles in the path of efforts to become independent of welfare bounty or to maintain the independence already achieved.^) The social benefit of public assistance would come to naught if this were not so.
If the property a welfare recipient is able to acquire by legitimate means is subject to attachment without regard to amount, the state thus fails to afford proper scope to one’s right to be an independent individual, not compelled to rely on government for the right to exist. The requisite precision and discrimination is not unattainable. It may be achieved by a fixed dollar value exemption, or, with respect to real estate, by an outright exemption for property used as a residence. And, while we should not concern ourselves with the precise terms of a valid regulatory scheme, we cannot ignore significant imperfections engendered by an indiscriminate obligation to repay the costs of public assistance. To require precision is not, as it is suggested, to demand that the State equalize the economic condition of its citizens. It simply serves to restrain the State from unnecessarily and arbitrarily hindering the personal strivings and ambitions of individuals to escape the inhibiting embrace of poverty.
Under the recovery provisions, Geraldine Snell’s $900 interest in a cooperative apartment has been assigned to the Department of Social Services; Miriam Ramos, Juan Malave and Robert Whaley have been obligated to repay the full cost of public assistance from potential recoveries for injuries sustained in accidents; and Helen Marley, who was dependent on public assistance during a serious illness from 1945 to 1954, is unable to obtain the proceeds of a small insurance policy because of a prior assignment to the Department.
It seems to me beyond question that we are dealing here with a facet of liberty. The federal purpose in providing aid to dependent children is, it is agreed, intended to afford recipients the opportunity to “attain or retain capability for * * * self-support and personal independence * * * ” 42 U.S.C. § 601. (The freedom to achieve “self-support añd personal independence” is within the compass of “liberty” secured by the Fourteenth Amendment against undue restraint?) The word “liberty” cannot be defined with precision; it “is not a series of isolated points pricked out '*• * * [but] a rational continuum,” Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting); Meyer v. State of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Liberty is not “confined to mere freedom from bodily restraint * * * [butUextends to the full range of conduct whmh the individual is free to pursue”)Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).
While the precise contours and boundaries of the term may be vague, its reach is determined from the traditions and history of the land. /No principle has firmer roots in that tradition than that the security of meager property interests is an aspect of self-carethat the goals of participatory democracy are furthered by an independent and secure citizenry. We err if this tradition is forgotten. See generally Philbrick, Changing Conceptions of Property in Law, 86 U.Pa.L. Rev. 691 (1938); Reich, The New Property, 73 Yale LJ. 733, 771-774 (1964). It is still true today that “the only dependable foundation of personal liberty is the economic security of private property.” W. Lippmann, The Method of Freedom 101 (1934). And Professor Reich has noted that “more than ever the individual needs to possess, in whatever form, a small but sovereign island of his own.” Reich, The New Property, 73 Yale L.J. at 774.
The majority carefully reminds us that the purpose of the Bill of Rights was “to take government off the backs of people.” Supra, p. 863, quoting Schneider v. Smith, 390 U.S. 17, 88 S.Ct. 682, 19 L.Ed.2d 799 (1968). But it is just that purpose that commands us to require care and precision from the state when it deals with “matters of human decency and welfare” (supra p. 863) — when the net effect may well be appreciably or unnecessarily to increase the burden on the individual. “Paradoxical though it may seem, (¡the most serious threat to freedom in our programs of public service and public benefits is to the freedom of the recipient. * *' * It behooves us to be constantly on our guard lest, out of zeal to bettér people’s lot, we impose on them patterns of behavior in matters in which, under our scheme of things, government ought not to meddle.”) Willcox, Patterns of Social Legislation Reflections on the Welfare State, 6 J. of Pub. L. 3, 7 (1957).
My brothers also seem to detect a distinction in the New York scheme between acquisitions “which have more or less the character of windfalls” and property acquired by “purposeful efforts to ‘attain or retain capability for self-support or self-care’.” Whatever the constitutional propriety of this distinction, I cannot see that the statutes before us draw any such line. Nor can I understand how the majority can apply its assumed distinction since we do not know whether Geraldine Snell’s apartment interest or Helen Marley’s insurance policy were bought solely with “income from employment” or not. Surely the Department was not concerned with the source of the recipients’ assets when it protected its claim by prior assignment. I see no reason, therefore, why the burden of raising the issue should be placed on welfare recipients, jíf a welfare recipient begins work, extricates himself from welfare, and accumulates $500 or $1000 in income, as I understand the recovery provisions applied in New York City, his obligation to repay will depend on whether his savings are invested in real property (or insurance), or placed in a bank accountt) In the first illustration, the realty is attached, in the latter the bank account is secure — at least until another Welfare Commissioner determines otherwise. Mat is not a distinction based on the 'statutory purpose to encourage independence; and it is not a distinction with rational justification in terms of the state’s interest in minimizing public expenditures]
It cannot be argued that the statutes distinguish between property acquired after the period of assistance and that accumulated while on the rolls. Snell had her apartment before receiving aid, and she was obliged to assign it as a condition to participation in the program. In any event, the obligation to repay would attach as firmly if she acquired the property within 10 years after receiving aid. Also, it appears that some premiums on Marley’s policy were paid after a long illness with cancer and- she was no longer receiving public aid, yet the full proceeds are subject to the lien and beyond her dominion.
Plaintiffs Ramos and Whaley have pending claims for personal injury damages arising out of accidents. Each has assigned the potential recoveries to the Department of Social Services to repay the cost of assistance. Plaintiff Malave actually received $400 from the Housing Authority as compensation for injuries, and the welfare officials have filed a “notice of lien” against these funds. The law provides all persons access to the courts in order that they might seek compensation for injuries caused by another. It is surely inadequate to restore a full measure of comfort to the victims of negligent behavior but it is nevertheless the best means yet devised; Whaley’s limb is exchanged for cash, and Ramos’ unspecified damage is “corrected” with money- — the law can do no more. The money transferred will serve many purposes — not only does it pay for medical care but it replaces income that might have been earned but for the disability and, however crudely, it alleviates suffering by offering material aid. This inept and inexact exchange is described as “making whole”. The majority tells us that the Constitution “gives us no authority to follow the figurative trails of metaphors like this.” (14) We might not like the trail but it represents a process with clear purposes, and once the design is laid bare it surpasses credulity to deny our authority to examine the relationship of technique to objective.
My brothers would have us believe that for purposes of constitutional inquiry there is little difference between denying eligibility for assistance to one with substantial assets in hand derived from a tort claim, and recovering ' assistance from a former welfare recipient who succeeds in receiving compensation for injuries. In the first case, however, the victim has the means of immediate subsistence — a test of eligibility; if the recovery had been $500 instead of $500,-000 he might-ptill be eligible for aid. In the second, |he attachment of a meager recovery can effectively destroy the means for future subsistence independence as well as remove the financial comfort given as compensation for physical pain. As a result, self-sufficiency may be jeopardized, and return to relief hastened))
I have more regard than the majority for the contentions made to us by the plaintiffs, supported by their experts, and not refuted by Commissioners Ginsberg and Wyman. ('The plaintiffs suggest that ownership of a home or insurance policy represents a symbol of independence among the poor, that the protective assignments generate resentment and frustrate social purposes of rehabilitation, and that the obligation to repay, with which we are concerned, exerts a deterrent influence that is partly responsible for the fact that one in two eligibles fails to apply for public assistance^ These assertions of the potential detrimental effects of recovery are consistent with the experience and comments of welfare specialists, and the arguments accord with common understanding.
In sum, while I do not question the power of the State through appropriate regulation to recover public assistance expenditures, I would declare the statutory scheme with which we are presented in violation of the Fourteenth Amendment. The proper objective of conserving resources can be achieved by a more discriminating pattern. It is but a modest burden to impose if we require that the Department of Social Services tailor its regulations so that the guide is not the mere availability of some property"but a genuine ability to repay without sacri-. ficing the basic, incidents of. self-supports. Such a course of decision would better serve our responsibility to secure individual liberty against purposeless restraint. At the same time, it in no way compromises Justice Brandéis’ suggestion that “one of the happy incidents of the federal system [is] that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932) (dissenting). Especially where the infirmity may be remedied without new legislation, our mandate to demand more precision from regulations that constrain liberty will challenge the ingenuity and inventive spirit of the states while ensuring fuller freedom for all the people.
. The plaintiffs before us received public assistance under programs administered by the Commissioner of Social Services in New York City and we are thus presented with statutes as applied in New York City. The policy of exempting savings derived from accumulated income, quoted by Judge Frankel at note 12 supra, is a directive issued by the Commissioner of Social Services for the City of New York. The defendant State Commissioner, however, has stated that the policy exempting earnings is statewide.
. California, with seventeen other states, imposes no obligation to repay on welfare recipients. In computing eligibility, the California statute indicates the form of exemption that might also be applied to recovery. Thus Section 11261, Ann.Calif.Code, “Welfare and Institutions” does not permit consideration of personal property “directly connected with efforts to become self-supporting.” Section 11255 permits AFDC recipients to own realty valued at no more than $5,000. Section 11152 permits a blind, disabled or aged recipient to retain realty, of any value, “if it provides [him] with a home.” Section 11154 permits a reserve “for future contingencies” of $2,000 for a married couple on Old Age Assistance, Aid to the Disabled, or Aid to the Blind programs.
. Chapter 29 of Magna Carta declared that “No freeman shall be taken or imprisoned or disseised of his free tenement, liberties, or free customs * * * unless by the law of the land.” In The Federalist No. 10 James Madison recognized, as John Locke had before him, the connection between liberty and property. The Federalist 52-54 (I-I. O. Lodge ed. 1888).
. It should be noted that there is no question here of concealment of assets or fraud. The plaintiffs met the standards , of eligibility during the period they received assistance, and their objection is to the obligation imposed to repay costs of assistance after they regain self-sufficiency. The Department of Social Services need not show any fraud or concealment to exercise its right of recovery. See Hodson v. Bloise, 173 Misc. 69, 16 N.Y.S.2d 49 (1939); In re Beaman’s Estate, 171 Misc. 578, 13 N.Y.S.2d 188 (1939).
. See generally, Calm & Calm, The War on Poverty: A Civilian Perspective, 73 Yale L.J. 1317 (1964); tenBroek &> Wilson, Public Assistance and Social Insurance — -A Normative Approach, 1 U. C.L.A. L.Rev. 237 (1954); Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245 (1965); Wickenden & Bell, Public Welfare — Time for A Change (1961); Wickenden, Memorandum: Poverty and the Law, The Constitutional Rights of Assistance Recipients, March 25, 1965; Moynihnn, The Crisis in Welfare, The Public Interest, p. 3 (Winter, 1968); Advisory Council on Public Welfare, Report to the Secretary of Health, Education and Welfare (June, 1966)..
We might indicate additional potential dangers adverted to by the expert witnesses. The provisions as constituted add another influence that promotes family instability, since potential husbands are discouraged from entering a family and risking an action against their property. Although the purported justification for the recovery obligation is one of economy, the net effect may be to increase the burden on the state by preventing former recipients from maintaining a position of self-support. The obligation to hand over tort recoveries to the state inhibits the recipient from bringing claims under the law that are freely pursued by non-recipients. Dr. Charles Grosser, a noted expert in Social Services, tells us that these provisions operate in effect to leave recipients in continuous need of assistance, unable to get off the lists for long, because they are unable to retain a measure of self-support.

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