Attorney General of New York v. Soto-Lopez

PETITIONER: Attorney General of New York
LOCATION: Circuit Court of Jefferson County

DOCKET NO.: 84-1803
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 476 US 898 (1986)
ARGUED: Jan 15, 1986
DECIDED: Jun 16, 1986

Kenneth Kimerling - on behalf of the Appellees
Robert Hermann - on behalf of the Appellants

Facts of the case


Media for Attorney General of New York v. Soto-Lopez

Audio Transcription for Oral Argument - January 15, 1986 in Attorney General of New York v. Soto-Lopez

Warren E. Burger:

You may proceed.

Robert Hermann:

Mr. Chief Justice, and may it please the Court:

The veterans' preference granted in New York's Constitution was upheld by this Court a dozen years ago against an identical challenge, that it impermissibly discriminated against veterans who were not residents of New York at the time they were inducted.

That case was called August against Bronstein.

The Second Circuit felt that August against Bronstein was no longer good law in light of recent doctrinal developments in this Court, specifically the Zobel against Williams case, and presumably Hooper against Fernalillo County, although that had not been decided at the time.

We believe that these recent decisions do not overrule the August, and that New York's classification is reasonably designed to fulfill legitimate state purposes.

Veteran preference laws have a long history in this country, and their constitutionality is a well settled matter.

New York, as well as 15 other states, conditions the award on veterans' preference credits on residence in the state at the time of induction into the military.

Since the 1920's New York has promised in its Constitution that if a resident goes into the armed services, serves during time of war, and is honorably discharged, that person on passing a Civil Service examination is entitled to five additional points in competing for public employment.

That commitment has never been withdrawn, and the commitment can only be withdrawn, we emphasize, by amending the State Constitution.

Sandra Day O'Connor:

Mr. Hermann, is there any time limit imposed on the exercise of this privilege or benefit?

Robert Hermann:

No, I do not believe there is.

It's a one time privilege but there is no time limit on its use.

We believe that whether New York's constitutional provision is viewed as a right to travel matter or as an equal protection matter, the result here turns on whether at a minimum, New York's classification rationally furthers a legitimate state purpose, and the Court of Appeals, we know, is divided on this point.

We believe the essential error in the Second Circuit's opinion was that it failed to perceive that New York's law rationally does further legitimate state purposes because the Second Circuit viewed the law simply as a retrospective measure, a reward for past services.

It largely ignored the law's prospective function as an incentive measure, one designed to encourage service in the military, to encourage persons to return to the State of New York, and to engage in public service thereafter, and these are separate purposes which I'll discuss in a moment.

But, unlike the New Mexico and Alaska statutes struck down in recent cases of this Court, New York's Constitution is and has been for a long time forward-looking.

Forty years ago, in an informal... in a formal opinion the State's Attorney General described the law as largely self-executing, and by that he meant that as part of the State's Constitution it guaranteed these benefits, and the only function of the legislature was to prescribe the periods of award.

And the Attorney General's opinion 40 years ago specifically said that a veteran of a war who would have a cause of action in New York State courts for this right even if the Legislature failed to determine time of award.

Thus, this is not an after the fact attempt by the State simply to take care of its own, and we believe that the fact that the Court of Appeals overlooked this is the critical flaw in its whole--

Warren E. Burger:

Isn't the origin of that concept of taking care of their own, as you put it, something that goes back to at least the Civil War when the states raised the troops and sent them in, and of course that was true earlier?

Robert Hermann:

--That is correct, Your Honor.

We discussed some of that history, both the constitutional history and the legislative history, in our brief.

New York' statute goes back at least until the Civil War, and I think it's worth observing that the Second Circuit has no discussion whatsoever in its opinion of the nature of that history, or of the important fact we rely on here which is that it's a constitutional commitment.

The Second Circuit found that New York has no legitimate interest in encouraging its residents to serve in the military, but the Court offered no support or citation for that conclusion in referring simply to patriotism, as it described it.

We submit that New York has acted from patriotic motives, and that the Second Circuit was wrong in declaring illegitimate New York's interest in encouraging its residents to serve.

Lewis F. Powell, Jr.:

May I ask this question, does it apply to people who were drafted as well as those who enlist?

Robert Hermann:

Yes, it does, Your Honor.

Lewis F. Powell, Jr.:

But you've said in that respect--

Robert Hermann:

As to people who are drafted, it certainly doesn't serve to encourage service in the military, but it does serve two subsequent functions of encouraging them to return to the state and encouraging them to engage in public service thereafter.