Supreme Court of the
George K. WYMAN, Commissioner of New York Department of
Social Services, et al.
v.
Barbara JAMES.
No. 69.
Argued Oct. 20, 1970.
Decided Jan. 12, 1971.
Civil
rights action by recipient of state aid to families with dependent children for
declaratory and injunctive relief preventing termination of benefits for
failure to consent to welfare official’s entry into recipient’s home. A
three-judge District Court for the Southern District of New York, 303 F.Supp.
935, entered judgment in favor of recipient, and state and city social services
commissioners appealed. The Supreme Court, Mr. Justice Blackmun, held that even
if home visit which state statutes and regulations prescribed as condition for
assistance under AFDC program possessed some of characteristics of a search in
traditional criminal law sense, visit did not fall within Fourth Amendment’s
proscription against unreasonable searches and seizures, where visit was made
by a caseworker and was not permitted outside working
hours, and forcible entry and snooping were prohibited.
Reversed
and remanded with directions.
Brenda
Soloff,
Jonathan
Weiss,
Mr. Justice
BLACKMUN delivered the opinion of the Court.
This
appeal presents the issue whether a beneficiary of the program for Aid to
Families with Dependent Children (AFDC)[1] may refuse a home visit by
the caseworker without risking the termination of benefits.
*311 The New York State and City
social services commissioners appeal from a judgment and decree of a divided
three-judge District Court holding invalid and unconstitutional in application
s 134 of the New York Social Services Law, McKinney’s Consol.Laws, c. 55,[2] §175 of **383 the
New York Policies Governing *312 the Administration of Public
Assistance,[3] and §§ 351.10 and 351.21
of Title 18 of the New York Code of Rules and Regulations,[4] and granting injunctive
relief. James v. Goldberg, 303 F.Supp. 935 (S.D.N.Y.1969). This Court noted
probable jurisdiction but, by a divided vote, denied a requested stay. 397
The
District Court majority held that a mother receiving AFDC relief may refuse,
without forfeiting her right to that relief, the periodic home visit which the
cited
Judge
MaLean, in dissent, thought it unrealistic to regard the home visit as a
search; felt that the requirement of a search wearrant to issue only upon a
showing of probable cause would make the AFDC program ‘in effect another
criminal statute’ and would ‘introduce a hostile arm’s length element into the
relationship’ between worker and mother, ‘a relationship which can be effective
only when it is based upon mutual confidence and trust’; and concluded **384
that the majority’s holding struck ‘a damaging below’ to an important social
welfare program.
I
The
case comes to us on the pleadings and supporting affidavits and without the benefit of testimony which an extended
hearing would have provided. The pertinent facts, however, are not in dispute.
Plaintiff
Barbara James is the mother of a son, Maurice, who was born in May 1967. They
reside in
Two
years later, on May 8, 1969, a caseworker wrote Mrs. James that she would visit
her home on May 14. Upon receipt of this advice, Mrs. James telephoned the
worker that, although she was willing to supply information ‘reasonable and
relevant’ to her need for public assistance, any discussion was not to take
place at her home. The worker told Mrs. James that she was required by law to
visit in her home and that refusal to *314 permit the visit would result
in the termination of assistance. Permission was still denied.
On May
13 the City Department of Social Services sent Mrs. James a notice of intent to
discontinue assistance because of the visitation refusal. The notice advised
the beneficiary of her right to a hearing before a review officer. The hearing
was requested and was held on May 27. Mrs. James appeared with an attorney at
that hearing. They continued to refuse permission
for a worker to visit the James home, but again expressed willingness to
cooperate and to permit visits elsewhere. The review officer ruled that the
refusal was a proper ground for the termination of assistance. His written
decision stated:
‘The
home visit which Mrs. James refuses to permit is for the purpose of determining
if there are any changes in her situation that might affect her eligibility to
continue to receive Public Assistance, or that might affect the amount of such
assistance, and to see if there are any social services which the Department of
Social Services can provide to the family.’
A notice of termination issued on June 2.
Thereupon,
without seeking a hearing at the state level, Mrs. James, individually and on
behalf of Maurice, and purporting to act on behalf of all other persons
similarly situated, instituted the present civil rights suit under 42 U.S.C. s
1983. She alleged the under the First, guaranteed to her under the First,
Third, Fourth, Fifth, Sixth, Ninth, Tenth, and Fourteenth Amendments, and under
Subchapters IV and XVI of the Social Security Act and regulations issued
thereunder. She further alleged that *315 she and her son have no
income, resources, or support other than the benefits received under the AFDC
program. She asked for declaratory and injunctive relief. A temporary restraining order was issued on June
13, James v. Goldberg, and the three-judge District Court was convened.
II
The
federal aspects of the AFDC program deserve mention. They are provided for in
Subchapter IV, Part A, of the Social Security Act of 1935, 49 Stat. 627, as
amended, 42 U.S.C. §§601--610 (1964 ed. and Supp. V). Section 401 of the Act,
42 U.S.C. §601 (1964 ed., Supp. V), specifies its purpose, namely, ‘encouraging
the care of dependent children in their own homes or in the homes **385
of relatives by enabling each State to furnish financial assistance and
rehabilitation and other services * * * to needy dependent children and the
parents or relatives with whom they are living to help maintain and strengthen
family life * * *.’ The same section authorizes the federal appropriation for
payments to States that qualify. Section 402, 42 U.S.C. §602 (1964 ed., Supp.
V), provides that a state plan, among other things, must ‘provide for granting
an opportunity for a fair hearing before the State agency to any individual
whose claim for aid to families with dependent children is denied or is not
acted upon with reasonable promptness’; must ‘provide that the State agency
will make such reports * * * as the Secretary (of Health, Education, and
Welfare) may from time to time require’: must ‘provide that the State agency
shall, in determining need, take into consideration any other income and
resources of any child or relative claiming aid’;
and must ‘provide that where the State agency has reason to believe that the
home in which a relative and child receiving aid reside is unsuitable for the
child because of the neglect, abuse, or exploitation of *316 such child
it shall bring such condition to the attention of the appropriate court or law
enforcement agencies in the State * * *.’ Section 405, 42 U.S.C. §605, provides
that
‘Whenever
the State agency has reason to believe that any payments of aid * * * made with
respect to a child are not being or may not be used in the best interests of
the child, the State agency may provide for such counseling and guidance
services with respect to the use of such payments and the management of other
funds by the relative * * * in order to assure use of such payments in the best
interests of such child, and may provide for advising such relative that
continued failure to so use such payments will result in substitution therefor
of protective payments * * * or in seeking the appointment of a guardian * * *
or in the imposition of criminal or civil penalties * * *.’
III
When a
case involves a home and some type of official intrusion into that home, as
this case appears to do, an immediate and natural reaction is one of concern
about Fourth Amendment rights and the protection which that Amendment is
intended to afford. Its emphasis indeed is upon one of the most precious aspects of personal security in the home: ‘The
right of the people to be secure in their persons, houses, papers, and effects
* * *.’ This Court has characterized that right as ‘basic to a free society.’
And over the years the Court consistently has been most protective of the
privacy of the dwelling. In Camara Mr. Justice White, after noting that the
‘translation of the abstract prohibition against ‘unreasonable searches and
seizures’ into workable guidelines for the decision of particular cases is a
difficult task,’ went on to observe,
‘Nevertheless,
one governing principle, justified by history and by current experience, has
consistently been followed: except in certain carefully defined classes of
cases, a search of private property without proper consent is ‘unreasonable’
unless it has been authorized by a valid search warrant.’
He pointed out, too, that one’s Fourth
Amendment protection subsists apart from his being suspected of criminal
behavior. **386
IV
This natural and quite proper protective attitude, however,
is not a factor in this case, for the seemingly obvious and simple reason that
we are not concerned here with any search by the
V
If however, we were to assume that a caseworker’s home
visit, before or subsequent to the beneficiary’s initial qualification for
benefits, somehow (perhaps because the average beneficiary might feel she is in
no position to refuse consent to the visit),
and despite its interview nature, does possess some of the characteristics of a
search in the traditional sense, we nevertheless conclude that the visit does
not fall within the Fourth Amendment’s proscription This is because it does not
descend to the level of unreasonableness. It is unreasonableness which is the
Fourth Amendment’s standard. And Mr. Chief Justice Warren observed in Terry .
There
are a number of factors that compel us to conclude that the home visit proposed
for Mrs. James is not unreasonable:
1.
The public’s interest in this particular segment of the area of assistance to
the unfortunate is protection and aid for the dependent child whose family
requires such aid for that child. The focus is on the child and, further, it is
on the child who is dependent. There is no more worthy object of the public’s
concern. The dependent child’s needs are paramount, and only with hesitancy
would we relegate those needs, in the scale of comparative values, to a
position secondary to what the mother claims as her rights.
2.
The agency, with tax funds provided from federal as well as from state sources,
is fulfilling a public trust. The State, working through its qualified welfare agency, *319 has
appropriate and paramount interest and concern in seeing and assuring that the
intended and proper objects of that tax-produced assistance are the ones who
benefit from the aid it dispenses. Surely it is not unreasonable, in the Fourth
Amendment sense or in any other sense of that term, that the Stae have at its
command a gentle means, of limited extent and of practical and considerate
application, of achieving that assurance.
3.
One who dispenses purely private charity naturally has an interest in and
expects to know how his charitable funds are utilized and put to work. The
public, when it is the provider, rightly expects the same. It might well expect
more, because of the trust aspect of public funds, and the recipient, as well
as the caseworker, has not only an interest but an obligation.
**387 4. The emphasis of the
5.
The home visit, it is true, is not required by federal statute or regulation. [FN6] But it has been noted that the *320
visit is ‘the heart of welfare administration’; that it affords ‘a personal,
rehabilitative orientation, unlike that of most federal programs’; and that the
‘more pronounced service orientation’ effected by Congress with the 1956
amendments to the Social Security Act ‘gave redoubled importance to the
practice of home visiting.’ Note, Rehabilitation, Investigation and the Welfare
Home Visit, 79 Yale L.J. 746, 748 (1970). The home visit is an established
routine in States besides
6. The means employed by the
7. Mrs. James, in fact, on this
record presents no specific complaint of any unreasonable intrusion of her home
and nothing that supports an inference that the desired home visit had as its
purpose the obtaining of information as to criminal
activity. She complains of no proposed visitation at an awkward or retirement
hour. She suggests no forcible entry. She refers to no snooping. She describes
no impolite or reprehensible conduct of any kind. She alleges only, in general
and nonspecific terms, that on previous visits and, on information and belief,
on visitation at the home of other aid recipients, ‘questions concerning
personal relationships, beliefs and behavior are raised and pressed which are
unnecessary for a determination of continuing eligibility.’ Paradoxically, this
same complaint could be made of a conference held elsewhere than in the home,
and yet this is what is sought by Mrs. James. The same complaint could be made of
the census taker’s questions. What Mrs. James appears to want from the agency
that provides her and her infant son with the necessities for life is the right
to receive those necessities upon her own *322 informational terms, to
utilize the Fourth Amendment as a wedge for imposing those terms, and to avoid
questions of any kind.[6]
8.
We are not persuaded, as Mrs. James would have us be, that all information
pertinent to the issue of eligibility can be obtained by the agency through an
interview at a place other than the home, or, as the District Court majority
suggested, by examining a lease or a birth certificate, or by periodic medical
examinations, or by interviews with school personnel. Although these secondary
sources might be helpful, they would not always assure verification of actual
residence or of actual physical presence in the home, which are requisites for
AFDC benefits, or of impending medical
needs. And, of course, little children, such as Maurice James, are not yet
registered in school.
9. The visit is not one by police
or uniformed authority. It is made by a caseworker of some training[7] whose *323 primary
objective is, or should be, the welfare, not the prosecution, of the aid
recipient for whom the worker has profound responsibility. As has already **389
been stressed, the program concerns dependent children and the needy families
of those children. It does not deal with crime or with the actual or suspected
perpetrators of crime. The caseworker is not a sleuth but rather, we trust, is
a friend to one in need.
10. The home visit is not a
criminal investigation, does not equate with a criminal investigation, and
despite the announced fears of Mrs. James and those who would join her, is not
in aid of any criminal proceeding. If the visitation serves to discourage
misrepresentation or fraud, such a byproduct of that visit does not impress
upon the visit itself a dominant criminal investigative aspect. And if the
visit should, by chance, lead to the discovery of fraud and a criminal
prosecution should follow, then, even
assuming that the evidence discovered upon the home visitation is admissible,
an issue upon which we express no opinion, that is a routine and expected fact
of life and a consequence no greater than that which necessarily ensues upon
any other discovery by a citizen of criminal conduct.
11. The warrant procedure, which
the plaintiff appears to claim to be so precious to her, even if civil in
nature, is not without its seriously objectionable features in the welfare
context. If a warrant could be obtained (the plaintiff affords us little help
as to how it would be obtained), it presumably could be applied for ex parte,
its execution would require no notice, it would justify entry *324 by
force, and its hours for execution would not be so limited as those prescribed
for home visitation. The warrant necessarily would imply conduct either
criminal or out of compliance with an asserted governing standard. Of course,
the force behind the warrant argument, welcome to the one asserting it, is the
fact that it would have to rest upon probable cause, and probable cause in the
welfare context, as Mrs. James concedes, requires more than the mere need of
the caseworker to see the child in the home and to have assurance that the
child is there and is receiving the benefit of the aid that has been authorized
for it. In this setting the warrant argument is out of place.
It seems to us that the situation
is akin to that where an Internal Revenue Service agent, in making a routine
civil audit of a taxpayer’s income tax return, asks that the taxpayer produce
for the agent’s review some proof of a deduction the taxpayer has asserted to
his benefit in the computation of his tax. If the taxpayer refuses, there is,
absent fraud, only a disallowance of the claimed deduction and a consequent
additional tax. The taxpayer is fully within his ‘rights’ in refusing to
produce the proof, but in maintaining and asserting those rights a tax
detriment results and it is a detriment of the taxpayer’s own making. So here
Mrs. James has the ‘right’ to refuse the home visit,
but a consequence in the form of cessation of aid, similar to the taxpayer’s
resultant additional tax, flows from that refusal. The choice is entirely hers,
and nothing of constitutional magnitude is involved.
VI
Camara
v. Municipal Court, (1967), and its companion case, See v. City of
But
the facts of the three cases are significantly different from those before us. Each
concerned a true search for violations. Frank was a criminal prosecution for
the owner’s refusal to permit entry. So, too, was See, Camara had to do with a writ of prohibition
sought to prevent an already pending criminal prosecution. The community
welfare aspects, of course, were highly important, but each case arose in a
criminal context where a genuine search was denied and prosecution followed.
In
contrast, Mrs. James is not being prosecuted for her refusal to permit the home
visit and is not about to be so prosecuted. Her wishes in that respect are
fully honored. We have not been told, and have not found, that her refusal is
made a criminal act by any applicable
*326 VII
Our
holding today does not mean, of course, that a termination of benefits upon
refusal of a home visit is to be upheld against constitutional challenge under
all conceivable circumstances. The early morning mass raid upon homes of
welfare recipients is not unknown. See Parrish v. Civil Service Comm., 66
Cal.2d 260, 57 Cal.Rptr. 623, 425 P.2d 223 (1967); Reich, Midnight Welfare
Searches and the Social Security Act, 72 Yale L.J. 1347 (1963). But that is not this case. Facts of that kind present
another case for another day.
We therefore conclude that the home visitation as
structured by the New York statutes and regulations is a reasonable
administrative tool; that it serves a valid and proper administrative purpose
for the dispensation of the AFDC program; that it is not an unwarranted
invasion of personal privacy; and that it violates no right guaranteed by the
Fourth Amendment.
Reversed
and remanded with directions to enter a judgment of dismissal.
It is
so ordered.
Reversed
and remanded with directions.
Mr. Justice WHITE
concurs in the judgment and joins the opinion
of the Court with the exception of Part IV thereof.
Mr. Justice
DOUGLAS, dissenting.
We are
living in a society where one of the most important forms of property is
government largesse which some call the ‘new property.’ The payrolls of government are but one aspect
of that ‘new property.’ Defense contracts, highway contracts, and the other
multifarious forms of contracts are another part. So are subsidies to air,
rail, and other carriers. So are *327 disbursements by government for
scientific research. So are TV and radio licenses to use the air space
which of course is part of the public domain. Our concern here is not with
those subsidies but with grants that directly or indirectly implicate the home
life of the recipients.
In 1969 roughly 127 billion dollars were spent by the federal,
state, and local **391 governments on ‘social welfare.’ To farmers alone almost four billion dollars
were paid, in part, for not growing certain crops. Almost 129,000 farmers
received $5,000 or more, their total benefits exceeding $1,450,000,000. Those payments were in some instances very
large, a few running a million or more a year. But the majority were payments
under $5,000 each.
Yet almost every beneficiary whether rich or poor, rural or
urban, has a ‘house’--one of the places protected by the Fourth Amendment
against ‘unreasonable searches and seizures.’ [8] [FN5] The question in this
case is whether receipt of largesse from the government makes the home of the
beneficiary subject to access by an inspector of the agency of oversight, even
though the beneficiary objects to the intrusion and even though the Fourth
Amendment’s procedure for access to one’s house or home is not followed. The
penalty here is not, of course, invasion of the privacy of Barbara James, only
her loss of federal or state largesse. That, however, is merely rephrasing the
problem. Whatever the semantics, *328 the central question is whether
the government by force of its largesse has the power to ‘buy up’ rights
guaranteed by the Constitution. But for the
assertion of her constitutional right, Barbara James in this case would have
received the welfare benefit.
We spoke in Speiser v. Randall of the denial of tax exemptions by
a State because of exercise of First Amendment rights.
‘It cannot
be gainsaid that a discriminatory denial of a tax exemption for engaging in
speech is a limitation on free speech. * * * To deny an exemption to claimants
who engage in certain forms of speech is in effect to penalize them for such
speech. Its deterrent effect is the same as if the State were to fine them for
this speech.’
Likewise,
while second-class mail rates may be granted or withheld by the Government, we
would not allow them to be granted ‘on condition that certain economic or
political ideas not be disseminated.’
In
Sherbert v. Verner, a State providing unemployment insurance required
recipients to accept suitable employment when it became available or lost the
benefits. An unemployed lady was offered a job requiring her to work Saturdays
but she refused because she was a Seventh
Day Adventist to whom Saturday was the Sabbath. The State canceled her
unemployment benefits and we reversed, saying:
‘The ruling
forces her to choose between following the precepts of her religion and
forfeiting benefits, on the one hand, and abandoning one of the precepts of her
religion in order to accept work, on *329 the other hand. Governmental
imposition of such a choice puts the same kind of burden upon the free exercise
of religion as would a fine imposed against appellant for her Saturday worship.
‘Nor
may the South Carolina court’s construction of the statute be saved from
constitutional infirmity on the ground that unemployment compensation benefits
are not appellant’s ‘right’ but merely a ‘privilege.’ It is too late in the day
to doubt that the liberties of religion and expression may be infringed by the
denial of or placing of conditions upon a benefit or **392 privilege * *
*. (T)o condition the availability of benefits upon this appellant’s
willingness to violate a cardinal principle of her religious faith effectively
penalizes the free exercise of her constitutional liberties.’
These
cases are in the tradition of
‘(T)he
rule is that the right to continue the exercise of a privilege granted by the
state cannot be made to depend upon the grantee’s submission to a condition
prescribed by the state which is hostile to the provisions of the federal
Constitution.’[9]
*330 What we said in those cases is
as applicable to Fourth Amendment rights as to those of the First. The Fourth,
of course, speaks of ‘unreasonable’ searches and seizures, while the First is
written in absolute terms. But the right of privacy which the Fourth protects
is perhaps as vivid in our lives as the right of expression sponsored by the
First. If the regime under which Barbara James lives were enterprise capitalism
as, for example, if she ran a small factory geared into the Pentagon’s
procurement program, she certainly would have a right to deny inspectors access
to her home unless they came with a warrant.
*331 That is the teaching of Camara
v. Municipal Court, and See v. City of
Is a
search of her home without a warrant made ‘reasonable’ merely because she is
dependent on government largesse?
Judge
Skelly Wright has stated the problem succinctly:
‘Welfare
has long been considered the equivalent of charity and its recipients have been
subjected to all kinds of dehumanizing experiences in the government’s effort
to police its welfare payments. In fact, over half a billion dollars are
expended annually for administration and policing in connection with the Aid to
Families with Dependent Children program.*332 Why such large sums are
necessary for administration and policing has never been adequately explained. No
such sums are spent policing the government subsidies granted to farmers,
airlines, steamship companies, and junk mail dealers,
to name but a few. The truth is that in this subsidy area society has simply
adopted a double standard, one for aid to business and the farmer and a
different one for welfare.’
If the
welfare recipient was not Barbara James but a prominent, affluent cotton or
wheat farmer receiving benefit payments for not growing crops, would not the
approach be different? Welfare in aid of dependent children, like social
security and unemployment benefits, has an aura of suspicion.[10] There doubtless are
frauds in every sector of public welfare whether the recipient be a Barbara
James or someone who is prominent or influential. But constitutional
rights--here the privacy of the home--are obviously not dependent on the
proverty or on the affluence of the beneficiary. It is the precincts of the
home that the Fourth Amendment protects; and *333 their privacy is as
important to the lowly as to the mighty.[11]
**394 ‘(S)tudies tell us that the
typical middle income American reaches retirement age with a whole *334
bundle of interests and expectations: as homeowner, as small investor, and as
social security ‘beneficiary.’ Of these, his social security retirement
benefits are probably his most important resource. Should this, the most
significant of his rights, be entitled to a quality of protection inferior to
that afforded his other interests? It becomes the task of the rule of law to
surround this new ‘right’ to retirement benefits with protections against
arbitrary government action, with substantive and procedural safeguards that
are as effective in context as the safeguards enjoyed by traditional rights of
property in the best tradition of the older law.’
It may
be that in some tenements one baby will do service to several women and call
each one ‘mom.’ It may be that other frauds, less obvious, will be perpetrated.
But if inspectors want to enter the precincts of the home against the wishes of
the lady of the house, they must get a warrant. The need for exigent action as
in cases of ‘hot pursuit’ is not present, for the lady will not disappear; nor
will the baby.
I
would place the same restrictions on inspectors entering the homes of welfare
beneficiaries as are on inspectors entering the homes of those on the payroll
of government, or the homes of those who contract with the government, or the
homes of those who work for those having government contracts. The values of
the home protected by the Fourth Amendment are not peculiar to capitalism as we
have known it; they are equally relevant to the new form of socialism which we
are entering. Moreover, as the numbers of functionaries and inspectors
multiply, the need for protection of the individual becomes*335 indeed
more essential if the values of a free society are to remain.
What
Lord Action wrote Bishop Creighton [FN12]
about the corruption of power is increasingly pertinent today:
‘I cannot accept your canon that we are to
judge Pope and King unlike other men, with a favourable presumption that they
did no wrong. If there is any presumption it is the other way against holders
of power, increasing as the power increases. Historic responsibility has to **395
make up for the want of legal responsibility. Power tends to corrupt and
absolute power corrupts absolutely. Great men are almost always bad men, even
when they exercise influence and not authority: still more when you superadd
the tendency or the certainty of corruption by authority.’
The
bureaucracy of modern government is not only slow, lumbering, and oppressive;
it is omnipresent. It touches everyone’s life at numerous points. It pries more
and more into private affairs, breaking down the barriers that individuals
erect to give them some insulation from the intrigues and harassments of modern
life.[12] Isolation is not a
constitutional guarantee; but the sanctity of the sanctuary of the home is
such--as marked and defined by the Fourth Amendment. What we do today is to
depreciate it.
I would sustain the judgment of the three-judge court in the present case.
*338 Mr. Justice MARSHALL,
whom Mr. Justice
BRENNAN joins, dissenting.
Although
I substantially agree with its initial statement of the issue in this case, the
Court’s opinion goes on to imply that the appellee has refused to provide
information germane to a determination of her eligibility for AFDC benefits. The
record plainly shows, however, that Mrs. James offered to furnish any
information that the appellants desired and to be interviewed at any place
other than her home. Appellants rejected her offers and terminated her benefits
solely on the ground that she refused to permit a home visit. In addition,
appellants make no contention that any sort of probable cause exists to suspect
appellee of welfare fraud or child abuse.
Simply
stated, the issue in this case is whether a state welfare agency can require
all recipients of AFDC benefits to submit to warrantless ‘visitations’ of their
homes. In answering that question, the majority dodges between constitutional
issues to reach a result clearly inconsistent with the decisions of this Court.
We are told that there is no search involved in this case; that even if there
were a search, it would not be unreasonable; and that even if this were an
unreasonable search, a welfare recipient waives her right to object by
accepting benefits. I emphatically disagree with all three conclusions. Furthermore,
I believe that binding regulations of the Department of Health, Education, and
Welfare prohibit appellants from requiring the home visit.
I
The
Court’s assertion that this case concerns no search ‘in the Fourth Amendment
meaning of that term’ is neither ‘obvious’ nor ‘simple.’ I should have thought
that the Fourth Amendment governs all intrusions by agents of the public upon
personal security. *339 As Mr. Justice Harlan has said:
‘(T)he
Constitution protects the privacy of the home against all unreasonable
intrusion of whatever character. * * * ‘(It applies) to all invasions on the
part of the government **398 and its employe s of the sanctity of a
man’s home,”
This Court has rejected as ‘anomalous’ the contention
that only suspected criminals are protected by the Fourth Amendment. In an era
of rapidly burgeoning governmental activities and their concomitant inspectors,
caseworkers, and researchers, a restriction of the Fourth Amendment to ‘the
traditional criminal law context’ tramples the ancient concept that a man’s
home is his castle. Only last Term, we reaffirmed that this concept has lost
none of its vitality.
Even
if the Fourth Amendment does not apply to each and every governmental entry
into the home, the welfare visit is not some sort of purely benevolent
inspection. No one questions the motives of the dedicated welfare caseworker.
Of course, caseworkers seek to be friends, but the point is that they are also
required to be sleuths. The majority concedes that the ‘visitation’ is
partially investigative, but claims that this investigative aspect has been
given too much emphasis. Emphasis has indeed been given. Time and again, in
briefs and at oral argument, appellants emphasized the need to enter AFDC homes
to guard against welfare fraud and child abuse, both of which are felonies.[13] The New York *340
statutes provide emphasis by requiring all caseworkers to report any evidence
of fraud that a home visit uncovers, N.Y. Social Services Law s 145. And appellants
have strenuously emphasized the importance of the visit to provide evidence
leading to civil forfeitures including elimination of benefits and loss of
child custody.
Actually, the home visit is precisely the type of
inspection proscribed by Camara and its companion case, See v. City of
The
Court attempts to distinguish See and Camara by telling us that those cases
involved ‘true’ and ‘genuine’ searches. The only concrete distinction offered
is that See and Camara concerned criminal prosecutions for refusal to permit
the search. The Camara opinion did observe that one could be prosecuted for a
refusal to allow that search; but, apart from the issue of consent, there is
neither logic in, nor precedent for, the view that the *341 ambit of the
Fourth Amendment depends not on the character of the governmental intrusion but
on the size of the club that the State wields against a resisting citizen. Even
if the magnitude of the penalty were relevant, which sanction for resisting the
search is more severe? For protecting the **399 privacy of her home,
Mrs. James lost the sole means of support for herself and her infant son. For
protecting the privacy of his commercial warehouse, Mr. See received a $100
suspended fine.
Conceding
for the sake of argument that someone might view the ‘visitation’ as a search,
the majority nonetheless concludes that such a search is not unreasonable. However,
its mode of reaching that conclusion departs from the entire history of Fourth
Amendment case law. Of course, the Fourth Amendment test is reasonableness, but
in determining whether a search is reasonable, this Court is not free merely to
balance, in a totally ad hoc fashion, any number of subjective factors. An
unbroken line of cases holds that, subject to a few narrowly drawn exceptions,
any search without a warrant is constitutionally unreasonable. In this case, no
suggestion that evidence will disappear, that a criminal will escape, or that
an officer will be injured, justifies the failure to obtain a warrant. Instead,
the majority asserts what amounts to three state interests that allegedly
render this search reasonable. None of these interests is sufficient to carve
out a new exception to the warrant
requirement.
First,
it is argued that the home visit is justified to protect dependent children
from ‘abuse’ and ‘exploitation.’ *342 These are heinous crimes, but they
are not confined to indigent households. Would the majority sanction, in the
absence of probable cause, compulsory visits to all American homes for the
purpose of discovering child abuse? Or is this Court prepared to hold as a
matter of constitutional law that a mother, merely because she is poor, is
substantially more likely to injure or exploit her children? Such a categorical
approach to an entire class of citizens would be dangerously at odds with the
tenets of our democracy.
Second,
the Court contends that caseworkers must enter the homes of AFDC beneficiaries
to determine eligibility. Interestingly, federal regulations do not require the
home visit. In fact, the regulations specify the recipient himself as the
primary source of eligibility information thereby rendering an inspection of
the home only one of several alternative secondary sources. The majority’s
implication that a biannual home visit somehow assures the verification of
actual residence or actual physical presence in the home strains credulity in
the context of urban proverty. Despite the caseworker’s responsibility for
dependent children, he is not even required to see the children as a part of
the home visit.[14] Appellants offer scant explanation for their refusal even to attempt
to utilize public records, expenditure receipts, documents such as leases,
nonhome interviews, personal financial records, sworn declarations, etc.--all
sources that governmental agencies regularly accept as adequate *343 to
establish eligibility for other public benefits. In this setting, it ill
behooves appellants to refuse to utilize informational sources **400
less drastic than an invasion of the privacy of the home.
We are told that the plight of Mrs. James is no different from
that of a taxpayer who is required to
document his right to a tax deduction, but this analogy is seriously flawed. The
record shows that Mrs. James has offered to be interviewed anywhere other than
her home, to answer any questions, and to provide any documentation that the
welfare agency desires. The agency curtly refused all these offers and insisted
on its ‘right’ to pry into appellee’s home. Tax exemptions are also
governmental ‘bounty.’ A true analogy would be an Internal Revenue Service
requirement that in order to claim a dependency exemption, a taxpayer must
allow a specially trained IRS agent to invade the home for the purpose of
questioning the occupants and looking for evidence that the exemption is being
properly utilized for the benefit of the dependent. If such a system were even
proposed, the cries of constitutional outrage would be unanimous.
Appellants
offer a third state interest that the Court seems to accept as partial
justification for this search. We are told that the visit is designed to
rehabilitate, to provide aid. This is strange doctrine indeed. A paternalistic
notion that a complaining citizen’s constitutional rights can be violated so
long as the State is somehow helping him is alien to our Nation’s philosophy. More
than 40 years ago, Mr. Justice Brandeis warned:
‘Experience
should teach us to be most on our guard to protect liberty when the
Government’s purposes are beneficent.’
*344 Throughout its opinion, the
majority alternates between two views of the State’s interest in requiring the
home visit. First we are told that the State’s purpose is benevolent so that no
search is involved. Next we are hold that the State’s need to prevent child
abuse and to avoid the misappropriation of welfare funds justifies dispensing
with the warrant requirement. But when all the State’s purposes are considered
at one time, I can only conclude that the home visit is a search and that,
absent a warrant, that search is unreasonable.[15]
Although the Court does not agree with my conclusion that
the home visit is an unreasonable search,
its opinion suggests that even if the visit were unreasonable, appellee has
somehow waived her right to object. Surely the majority cannot believe that
valid Fourth Amendment consent can be given under the threat of the loss of
one’s sole means of support. Nor has Mrs. James waived her rights. Had the
Court squarely faced the question of whether the State can condition welfare
payments on the waiver of clear constitutional rights, the answer would be
plain. The decisions of this Court do not support the notion that a State can
use welfare benefits as a wedge to coerce ‘waiver’ of Fourth Amendment rights. In
Sherbert v. Verner, this Court did not say,
‘Aid merely ceases. There is no abridgment of religious freedom.’ Nor did the
Court say in Speiser v. Randall, ‘The **401
tax is simply increased. No one is compelled to relinquish First Amendment
rights.’ As my Brother DOUGLAS points out, the majority’s statement that Mrs.
James’ ‘choice (to be searched or to lose her benefits) is entirely hers, and
nothing of constitutional magnitude is involved’ merely restates the issue. To
Mr. Justice DOUGLAS’ eloquent discussion of the law of unconstitutional
conditions, I would add only that this Court last Term reaffirmed Sherbert and
Speiser as applicable to the law of public
welfare:
‘Relevant
constitutional restraints apply as much to the withdrawal of public assistance
benefits as to disqualification for unemployment compensation * * * denial of a
tax exemption * * * or * * * discharge from public employment.’
II
The
Court’s examination of the constitutional issues presented by this case has
constrained me to respond. It would not have been necessary to reach these
questions for I believe that HEW regulations, binding on the States, prohibit
the unconsented home visit.
*346 The federal Handbook of Public
Assistance Administration provides:
‘The (state
welfare) agency especially guards against violations of legal rights and common
decencies in such areas as entering a home by force, or without permission, or
under false pretenses; making home visits outside of working hours, and
particularly making such visits during sleeping hours * * *.’
Although the tone of this language is
descriptive, HEW requirements are stated in terms of principles and objectives,
Handbook, pt. I, §4210(3); and appellants do not contend that this regulation
is merely advisory. Instead, appellants respond with the tired assertion that
consent obtained by threatening termination
of benefits constitutes valid permission under this regulation. There is no
reason to suspect that HEW shares this crabbed view of consent. The Handbook,
itself, insists on careful scrutiny of purported consent, pt. IV, §2400. Section
2200(a) is designed to protect the privacy of welfare recipients, and it would
be somewhat ironic to adopt a construction of the regulation that provided that
any person who invokes his privacy rights ceases to be a recipient.
Appellants
next object that the home visit has long been a part of welfare administration
and has never been disapproved by HEW. The short answer to this is that we deal
with only the unconsented home visit. The general utility and acceptance of the
home visit casts little light on whether HEW might prefer not to impose the
visit on unwilling recipients. Appellants also remind us that the Federal
Government itself requires a limited number of home visits for sampling
purposes. *347 However, while there may well be a special need to employ
mandatory visits as a part of quality **402 control samples, Mrs. James’
home was not a part of such a sample. Furthermore appellants admit that s
2200(a) governs the quality control program; so it is not clear that
unconsented home visits are allowed even for sampling purposes. Although there
appears to be no regulatory history, appellants tell us s 2200(a) merely
permits a recipient to refuse a particular home visit and does not allow him to
forbid home visits altogether. I suppose
that one could read such a limitation into the section, but given the
regulation’s explicit language, given that HEW does not require home visits and
views the visits as only one of several alternative sources of eligibility
information, given HEW’s concern for the privacy of its clients, and given the
durable principle of this Court that doubtful questions of interpretation
should be resolved in a manner which avoids constitutional questions. I would
conclude that Mrs. James is protected by §2200(a).
III
In
deciding that the homes of AFDC recipients are not entitled to protection from
warrantless searches by welfare caseworkers, the Court declines to follow prior
case law and employs a rationale that, if applied to the claims of all
citizens, would threaten the vitality of the Fourth Amendment. This Court has
occasionally pushed beyond established constitutional contours to protect the
vulnerable and to further basic human values. I find no little irony in the
fact that the burden of today’s departure from principled adjudication is placed
upon the lowly poor. Perhaps the majority has explained why a commercial
warehouse deserves more protection than does this poor woman’s home. I am not
convinced; and, therefore, I must respectfully dissent.
[1]
In Goldberg v. Kelly, 397 U.S. 254, 256 n. 1, 90
S.Ct. 1011, 1014, 25 L.Ed.2d 287 (1970), the Court observed that AFDC is a
categorical assistance program supported by federal grants-in-aid but
administered by the States according to regulations of the Secretary of Health,
Education, and Welfare. See
[2]
Ԥ 134. Supervision
‘The
public welfare officials responsible * * * for investigating any application
for public assistance and care, shall maintain close contact with persons
granted public assistance and care. Such
persons shall be visited as frequently as is provided by the rules of the board
and/or regulations of the department or required by the circumstances of the
case, in order that any treatment or service tending to restore such persons to
a condition of self-support and to relieve their distress may be rendered and
in order that assistance or care may be given only in such amount and as long
as necessary. * * * The circumstances of a person receiving continued care shall be reinvestigated as frequently as
the rules of the board or regulations of the department may require.’
Section
134--a, as added by Laws 1967, c. 183, effective April 1, 1967, provides:
‘In accordance with regulations of the department, any investigation or reinvestigation of eligibility * * * shall be limited to those factors reasonably necessary to insure that expenditures shall be in accord with applicable provisions of this chapter and the rules of the board and regulations of the department and shall be conducted in such manner so as not to violate any civil right of the applicant or recipient. In making such investigation or reinvestigation, sources of information, other than public records, shall be consulted only with the permission of the applicant or recipient. However, if such permission is not granted by the applicant or recipient, the appropriate public welfare official may deny, suspend or discontinue public assistance or care until such time as he may be satisfied that such applicant or recipient is eligible the therefor.’
[3] ‘Mandatory visits must be made in accordance with law that requires that persons be visited at least once every three months if they are receiving * * * Aid to Dependent Children * * *.’
[4]
‘Section 351.10. Required
home visits and contacts. Social investigation as defined and described * * *
shall be made of each application or reapplication for public assistance or
care as the basis for determination of initial eligibility.
‘a.
Determination of initial eligibility shall include contact with the applicant
and at least one home visit which shall be made promptly in accordance with
agency policy. * * *’
‘Section
351.21. Required contacts. Contacts with recipients and collateral sources
shall be adequate as to content and frequency and shall include home visits,
office interviews, correspondence, reports on resources and other necessary
documentation.’
Section 369.2 of Title 18 provides in part: ‘(c) Welfare of child or minor. A child or minor shall be considered to be eligible for ADC if his home situation is one in which his physical, mental and moral well-being will be safeguarded and his religious faith preserved and protected. (1) In determining the ability of a parent or relative to care for the child so that this purpose is achieved, the home shall be judged by the same standards as are applied to self-maintaining families in the community. When, at the time of application, a home does not meet the usual standards of health and decency but the welfare of the child is not endangered, ADC shall be granted and defined services provided in an effort to improve the situation. Where appropriate, consultation or direct service shall be requested from child welfare.’
[5] It is true that the record contains 12 affidavits, all essentially identical, of aid recipients (other than Mrs. James) which recite that a caseworker ‘most often’ comes without notice; that when he does, the plans the recipient had for that time cannot be carried out; that the visit is ‘very embarrassing to me if the caseworker comes when I have company’; and that the caseworker ‘sometimes asks very personal questions’ in front of children.
[6] We have examined Mrs. James’ case record with the New York City Department of Social Services, which, as an exhibit, accompanied defendant Wyman’s answer. It discloses numerous interviews from the time of the initial one on April 27, 1967, until the attempted termination in June 1969. The record is revealing as to Mrs. James’ failure ever really to satisfy the requirements for eligibility; as to constant and repeated demands; as to attitude toward the caseworker; as to reluctance to cooperate; as to evasiveness; and as to occasional belligerency. There are indications that all was not always well with the infant Maurice (skull fracture, a dent in the head, a possible rat bite). The picture is a sad and unhappy one.
[7] The amicus brief submitted on behalf of the Social Services Employees Union Local 371, AFSCME, AFL--CIO, the bargaining representative for the social service staff employed in the New York City Department of Social Services, recites that ‘caseworkers are either badly trained or untrained’ and that ‘generally, a caseworker is not only poorly trained, but also young and inexperienced * * *.’ Despite this astonishing description by the union of the lack of qualification of its own members for the work they are employed to do, we must assume that the caseworker possesses at least some qualifications and some dedication to duty.
[8] ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’
[9]
Flemming v. Nestor, 363
The
majority stated Nestor’s property had not been taken without due process
because Nestor had no property rights; his interest was ‘noncontractual’ and
could ‘not be soundly analogized to that of the holder of an annuity.’ 363
If it was unconstitutional in Speiser to condition a tax exemption on a limitation on freedom of speech, it was equally unconstitutional to withhold a social security benefit conditioned on a limitation of freedom of association. A right-privilege distinction was implicitly rejected in Speiser and explicitly rejected in Sherbert. Today’s decision when dealing with a state statute joins Flemming as an anomaly in the cases dealing with unconstitutional conditions.
[10]
Juvenal wrote:
‘Poverty’s
greatest curse, much worse than the fact of it, is that it makes men objects of
mirth, ridiculed, humbled, embarrassed.’ Satires 39 (
In the
1837 Term the Court held in City of
I regretfully conclude that today’s decision is ideologically of the same vintage.
[11]
An individual who refuses
to allow the home visit could either be a welfare recipient at the time or an
applicant for assistance. In neither case would the outcome of the refusal be
different. If the mother is already a recipient, Social Services Regulations s
351.21, 18 NYCRR s 351.21, requires continuing contacts at home between the
recipient and the social worker. Should a recipient refuse a visit then s 175
of the Policies Governing the Administration of Public Assistance (‘Mandatory
visits must be made in accordance with law that requires that persons be
visited * * *.’) would require termination. When the decision to ‘discontinue, suspend or
reduce’ benefits is made, the recipient would receive a hearing under s 351.26
at which the recipient could present ‘written and oral relevant evidence and
argument to demonstrate why his grant should not be discontinued, suspended or
reduced.’ Since s 134 of the Social Services Law requires visits, the refusal
to allow the visit would apparently be dispositive of the matter.
That
seems to be conceded here by the commissioner. In light of that fact, the
failure of appellee, who went to a hearing and was denied relief, to pursue any
further state remedy seems irrelevant as the only question posed was the
constitutionality under the Fourth Amendment of the termination of assistance
for failure to agree to the warrantless entry into her home.
Except
in very limited circumstances (Social Services Regulations ss 351.10 and 372
(Emergency Assistance)) an initial home visit and investigation is necessary
before receiving benefits. Should a potential recipient refuse the initial
visit, he would be notified under s 351.14(b) of the reason for the denial.
Then he could request a ‘fair hearing’ under Board Rule 85 and Social Services
Regulations s 358. Again it appears that refusing the visit would be
dispositive of the claim.
The extent to which a person could receive emergency assistance after refusal of a visit is unclear. Social Services Regulations s 372.3 recognizes that emergency assistance could be available to a person while the ‘fair hearing’ is pending. It would seem, however, that implicit in s 372.3 is the notion that, if the claim is disposed of, then the emergency assistance would terminate. Also emergency assistance is limited to periods not in excess of 30 consecutive days in any 12-month period. Social Services Regulations s 372.1.
[12] Mass raids upon the homes of welfare recipients are matters of record. See Parrish v. Civil Service Comm’n, 66 Cal.2d 260, 57 Cal.Rptr. 623, 425 P.2d 223, where an inspector was discharged because he refused to engage in such ‘illegal activity’ and was granted relief by way of back pay.
[13] For example, appellants’ Reply Brief offers two specific illustrations of the home visit’s efficacy. In the first, a man was discovered in the home and benefits were terminated. In the second, child abuse was discovered.
[14] Appellants respond by asserting that if the caseworker becomes suspicious concerning the child’s absence, further investigation may take place. One certainly would hope that the caseworker would continue his investigation, but the fact remains that the failure to require that the child be seen undercuts the argument that the home visit is designed to protect the child’s welfare and necessary to verify his presence in the home.
[15] Since the majority refuses to sanction the warrant procedure in any form, I have not discussed what standard should be required for a warrant to issue. Certainly, if one of the purposes of the welfare search is to obtain evidence of criminal conduct, that is no reason to permit less than probable cause. And because the home visit is a more severe intrusion than is the housing inspection and there are less drastic means to obtain eligibility information, I would apply the analysis of Camara and would be inclined to utilize a traditional probable cause standard.