Attorney General's Opinion
Attorney General, Richard Blumenthal
March 24, 1992
Senator John B. Larson
President Pro Tempore
State of Connecticut Senate
Legislative Office Building
Hartford, Connecticut 06106
Representative Edward C. Krawiecki, Jr.
State of Connecticut House of Representatives
Hartford, Connecticut 06106
Dear Sen. Larson and Rep. Krawiecki:
We are writing in response to your February 25, 1992, and February 27, 1992, requests for an Opinion on the constitutionality of proposed measures before the General Assembly which would impose durational residency requirements upon persons seeking General Assistance welfare benefits in the State of Connecticut. Specifically, you ask: 1) whether the State may deny General Assistance benefits to persons not satisfying a durational residency requirement; 2) whether the State may restrict General Assistance benefits for newcomers to a lower level of support than is available to longer term residents of Connecticut; and 3) whether any such restriction tied to the level of welfare support available in newcomers' previous states of domicile, is permissible. Under each scenario presented, new residents to the state would be ineligible for public welfare benefits which longer term residents could obtain.
It is unquestionably valid for States to guard against the depletion of resources by limiting their availability to only "bona fide" residents. A determination of bona fide residency generally depends on an individual's place of residence in a state, plus the intent to remain, as may be evidenced by one's voter registration, driver's license, and similar criteria. See 72 Conn.Op.Atty.Gen. (9/6/72).1 As observed in Attorney General of New York v. Soto-Lopez, 476 U.S. at 903 (n. 3):
"A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by residents. Such a requirement ... [generally] does not burden or penalize the constitutional right of interstate travel, for any person is free to move to a State and to establish residence there. A bona fide residence requirement simply requires that the person does establish residence before demanding the services that are restricted to residents." 461 U.S., at 328-329, 103 S.Ct., at 1842-1843."
While the requirement that individuals that receive state benefits be bona fide residents is appropriate, a "durational" residency requirement--a requirement that determines benefits based upon the length of time of residence--is subject to constitutional scrutiny.
The validity of durational residency requirements has been tested in a number of equal protection cases challenging states' classifications according to residency. Over the past 23 years, the United States Supreme Court has consistently found that durational residency requirements for state programs which provide substantial benefits to otherwise qualified residents implicate the constitutionally protected right to travel. Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 907-8 (1986); Hooper v. Bernalillo, 472 U.S. 612 (1985); Zobel v. Williams, 457 U.S. 55 (1982); Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974); Shapiro v. Thompson , 394 U.S. 618 (1969). This line of cases deals with "state laws which, by classifying residents according to the time they established residence, resulted in the unequal distribution of rights and benefits among otherwise qualified bona fide residents." Soto-Lopez, supra 476 U.S. at 903. The Court has explained that "[i]n addition to protecting persons against the erection of actual barriers to interstate movement, the right to travel, when applied to residency requirements, protects new residents of a state from being disadvantaged because of their recent migration or from otherwise being treated differently from longer term residents." Zobel v. Williams, 457 U.S. 55, 60 n. 6 (1982).
As we stated in an Opinion issued in 1990,2 these decisions of the Court have differed as to whether the right to travel is a fundamental right independent of the equal protection clause; see Shapiro v. Thompson, 394 U.S. 618, 630-31, quoting United States v. Guest, 383 U.S. 745, 757-58 (1966); or merely one aspect of the equal protection guarantee. See Zobel v. Williams, 457 U.S. 55, 60 n. 6 (1982) ("In reality, right to travel analysis refers to little more than a particular application of equal protection analysis. Right to travel cases have examined, in equal protection terms, state distinctions between newcomers and long term residents.") Regardless of the approach, however, the same guiding principle applies: "the right to migrate protects residents of a State from being disadvantaged, or from being treated differently, simply because of the timing of their migration, from other similarly situated residents." Attorney General of New York v. Soto-Lopez, 476 U.S. at 906.
The United States Supreme Court has treated the right to travel as independent and fundamental in cases where "very important"3 benefits or rights are at stake under statutes containing durational residency requirements. Accordingly, the statutes involved in Shapiro v. Thompson, Dunn v. Blumstein, Memorial Hospital v. Maricopa County, and Attorney General of New York v. Soto-Lopez,4 were reviewed under "strict scrutiny," a standard of analysis which requires the State to demonstrate that a compelling state interest supports the residency requirement under challenge. The Court has repeatedly characterized basic public health and welfare benefits as "necessities of life," the denial of which to newcomers in a state may be justified only by a compelling state interest. Shapiro v. Thompson, supra, at 627; Memorial Hospital v. Maricopa County, supra, at 259; Attorney General of New York v. Soto-Lopez, supra at 907-8. In contrast, Zobel v. Williams and Hooper v. Bernalillo5 the less stringent "rational basis" analysis used the residency requirements for benefits unrelated to basic health and welfare or "basic rights," were rationally related to one or more legitimate state objectives.6
There is no question that a durational residency requirement for General Assistance welfare benefits would be subject to the "strict scrutiny" standard of equal protection analysis. It is very unlikely that a durational residency requirement for General Assistance welfare could meet this heightened standard of judicial review. Without exception, states defending such durational residency requirements before the Court have been unable to establish a compelling state interest supporting their statutes, despite arguments that such rules promote the fiscal integrity of public assistance programs, reward longer term residents for past tax contributions, facilitate budget planning, encourage full employment, minimize the opportunity for fraud, and provide an objective test of residency. See, e.g., Shapiro, 394 U.S. at 628-34; Memorial Hospital v. Maricopa County, 415 U.S. at 263-269.
Shapiro v. Thompson, one of the first Supreme Court cases to apply the right to migrate analysis to statutory residency requirements, is particularly instructive. In Shapiro, the Court struck down three states' statutes which denied welfare benefits to persons who did not satisfy a one-year residency rule. The Court held that such a classification of residents constituted "invidious discrimination" denying equal protection of the laws.7 Shapiro v. Thompson, supra at 627-28. As we stated in our Opinion of April 11, 1990,
The Shapiro Court explained that the mandatory waiting period in each of the statutes divided needy resident families into two classes that were indistinguishable from each other except that one was composed of residents who had resided in the jurisdiction a year or more, and the other was made upon of residents who resided there less than a year. Shapiro, 394 U.S. at 627. "On the basis of this sole difference, the first class is granted and the second class is denied welfare aid upon which may depend the ability of the families to obtain the very means to subsist--food, shelter and other necessities of life." Id.
In Shapiro, the states argued for review of their "admittedly permissible state objectives" under the rational basis test. 394 U.S. at 634. The Court rejected this argument, stating that "since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest." Id. at 638. The Court found that none of the state interests advanced to support the residency requirements satisfied this standard. Moreover, even if the rational basis test for equal protection applied, the Court stated that "a classification of welfare applicants according to whether they have lived in the State for one year would seem irrational and unconstitutional". Id.
Given the Court's express recognition of the importance of public assistance availability, a durational residency requirement which results in limiting, rather than denying, welfare benefits to newcomers would not alter the constitutional analysis. The creation of a lower support structure for newly arrived residents was recently challenged in the state of Minnesota, which last year imposed a reduced level of welfare assistance for newcomers, tied to the amount of assistance received in their last state of residence. The State of Minnesota lost its case in the trial court in January 1992. Its appeal is now pending. Mitchell, et al. v. Steffen, Minn.Dist.Ct. (2nd Jud. Dist.), no. C8-91-11691 (1-8-92).
In summary, relevant case law does not support durational residency requirements for basic health and welfare benefits programs. Because they are viewed as a burden on the fundamental right to migrate, such requirements are subjected to heightened judicial scrutiny and are struck down if they do not serve a compelling state interest. This strict standard of review has yet to be satisfied by any state defending a durational residency requirement for welfare assistance. "The state may not favor established residents over new residents based on the view that the State may take care of 'its own', if such is defined by prior residence. Newcomers, by establishing bona fide residence in the State, become the State's 'own' and may not be discriminated against solely on the basis of their [later] arrival in the State...." Concurring opinion of Chief Justice Burger, in Attorney General of New York v. Soto-Lopez, 476 U.S. at 915-16, citing Hooper v. Bernalillo County Assessor, 472 U.S. 612, 623 (1985). Durational residency rules for basic rights and benefits are not sufficiently justified by budgetary or recordkeeping considerations. See Sosna v. Iowa, 419 U.S. 393, 406 (1975). Nor will the Constitution permit an apportionment of state services based upon the past tax contributions of those served. Such reasoning "would logically permit the State to bar new residents from schools, parks, and libraries, or deprive them of police and fire protection." Shapiro v. Thompson, 394 U.S. at 633. Moreover, durational residency requirements cannot be justified as "tool[s] for preventing fraud", since an applicant "could as easily swear to having been a resident ... for the preceding year as to being one currently". Memorial Hospital v. Maricopa County, 415 U.S. at 268.
Based on the foregoing analysis, we conclude that none of the proposals presented in your letters would survive an equal protection challenge. It is our opinion that any of the proposals' enactment into law would be unconstitutional.
Very truly yours,
Susan Brooks Flanders
Assistant Attorney General
1 Indeed, a sworn affidavit documenting one's place of abode and his or her intentions regarding the same constitutes evidence of bona fide residency.
2 Reference our Opinion of April 11, 1990, where we concluded that the residency requirements contained in three veterans benefits statutes were unconstitutional. 90 Conn.Op.Atty.Gen. (04/11/90).
3 Soto-Lopez, supra, 476 U.S. at 907.
4 Shapiro v. Thompson , 394 U.S. 618 (1969), invalidated several states one-year residency requirements for welfare assistance eligibility.
Dunn v. Blumstein, 405 U.S. 330 (1972), struck down a durational residency rule affecting the right to vote.
Memorial Hospital v. Maricopa County, 415 U.S. 205 (1974), overturned the State of Arizona's one-year residency requirement for free medical care eligibility.
Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986), invalidated New York's civil service preference for war-time veterans who were state residents when they entered the military service.
5 Zobel v. Williams , 457 U.S. 55 (1982), overturned an Alaska statute which distributed state mineral income dividends to residents based on their date of arrival.
Hooper v. Bernalillo, 472 U.S. 612 (1985), struck down a New Mexico statute granting a modest property tax exemption to veterans residing in the state before May 8, 1976.
6 Durational residency requirements are not always prohibited. The Supreme Court has distinguished residency rules for basic health and welfare benefits from those for such purposes as higher education tuition breaks. Shapiro v. Thompson, 394 U.S. 618, 638 n. 21 (1969). The Court's due process analysis on this issue in Vlandis v. Kline, 412 U.S. 441, 454 (1973) included dicta suggesting that a durational residency requirement could appropriately be imposed as one element of establishing the bona fide residence of a student seeking Connecticut's in-state college tuition rates. The Court cited Starns v. Malkerson, 326 F.Supp. 234 (Minn.1970), affirmed summarily, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), as well as the Connecticut Attorney General's Opinion mentioned above, 72 Conn.Op.Atty.Gen. (9/6/72). Starns upheld the State of Minnesota's one-year residency requirement for in-state college tuition purposes.
7 One of the statutes the Court held unconstitutional was Conn.Gen.Stat. § 17-2d, which denied Aid to Families with Dependent Children (AFDC) to women who had been in the state less than a year. See Shapiro v. Thompson, 394, U.S. 618, 622 (1968).