Shapiro v. Thompson

PETITIONER:Bernard Shapiro
RESPONDENT:Vivian Marie Thompson
LOCATION:Connecticut Welfare Department

DOCKET NO.: 9
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: Federal district court

CITATION: 394 US 618 (1969)
ARGUED: May 01, 1968
REARGUED: Oct 23, 1968 / Oct 24, 1968
DECIDED: Apr 21, 1969

Facts of the case

Thompson was a pregnant, nineteen-year-old mother of one child who applied for assistance under the Aid to Families with Dependent Children (AFDC) program in Connecticut after having recently moved there from Massachusetts. Connecticut denied her aid since she did not satisfy the state’s one-year residency requirement. This case was decided together with Washington v. Legrant and Reynolds v. Smith. In Washington, three people applied for and were denied AFDC aid on the ground that they had not resided in the District of Columbia for one year immediately preceding the filing of their application In Reynolds, two appellees, Smith and Foster, were denied AFDC aid on the sole ground that they had not been residents of Pennsylvania for at least a year prior to their applications as required by a Pennsylvania Welfare Code.

Question

Does the conditioning of AFDC aid on various residency requirements violate the Fourteenth Amendment’s Equal Protection Clause?

Earl Warren:

Number 813, Bernard Shapiro, Commissioner of Welfare of the State of Connecticut, appellant versus Vivian Thompson.

Mr. Shapiro.

Louis Bernstein:

Mr. Chief Justice and members of the Court.

I’m Louis Bernstein and I respectfully move this Court to permit Mr. Brian Hollander of the Connecticut bar to argue for the respondent in this matter.

Earl Warren:

Thank you, Mr. Bernstein.

Your motion is granted.

Mr. MacGregor.

Francis J. MacGregor:

Mr. Chief Justice and may it please this Court.

Before I start, the State of Connecticut has agreed to allot seven minutes of its time to the Assistant Attorney General of the State of Iowa, Mrs. Lorna Williams.

Now, the factual situation in this case is quite simple and I don’t think they are particularly in dispute.

Ms. Thompson, the appellee who was receiving aid to dependent children in the State of Massachusetts moved into Connecticut and was refused public assistant solely on the basis of the residency requirements of 17-2d and I think that the only question facing this Court is whether or not a state may pass a reasonable residency requirement in the field of public assistance particularly aid to dependent children, a law that is clearly not racially aimed.

A law that has no permanent effect on the persons aimed at.

A law that has no criminal sanctions and one that involves the spending of state tax raised funds and one actually that encourages new migrants into the State of Connecticut to enter the labor market and parenthetically, if I notice in this last part that the Congress in H.R. 12080 of the Social Security Amendments of 1967 has followed Connecticut’s very good lead in this case and their AFDC, Aid to Families of Dependent Children by establishing a work incentive program very similar to the regulations and policy of the State of Connecticut set up and the residency requirement.

I noticed it’s called Work Incentive Program probably the nickname for that would be WIP but I wouldn’t want to use that connotation in front of the Court when I’m arguing this type of case.

(Inaudible)

Francis J. MacGregor:

No, it isn’t, Your Honor.

It’s the — this is H.R. 12080 Your Honor of the Social Security Amendments of 1967 and actually the law was not passed until, I believe December 15th and I noticed that came out — was reported out in APWA Washington Report Volume 2 Number 7, dated December 22, 1967.

Now, it was always in my belief that the fundamental and central historical purpose of the Fourteenth Amendment was to protect persons from statutes that were first racially aimed and that seems to be what this Court has dealt with in the last few years and also cases involving acquired property rights.

However, I think that the Fourteenth Amendment in this case has been used to paraphrase Dr. Samuel Jackson as the last refuge of the constitutional bankrupt.

It has been used when the appellees could find no true legal precedent on which to base their decision.

Now, Judge’s Smith and Judge Blumenfeld when they wrote their majority opinion in the Thompson case was a vigorous decent from Judge Clary conceded that the purpose of Section 17-2d was to protect the public purse of the State of Connecticut.

A purpose which I always thought was wadable but they didn’t went on to indicate that the State of Connecticut had not born the burden of proving that this was justifiable purpose or that the classification was reasonable.

Now, since when does a state bear the burden of proving that their statute is constitutional.

It was stated in that Darlington case every possible presumption is in favor of the validity of the statute and this continues until the contrary is shown beyond the reasonable doubt.

When one looks at the memorandum not only in the Thompson case but in the Harold case and the Smith case, the companion case that to be argued here today, it is plainly apparent that the judges based their decision, however, benevolent and well meaning that it might be on their own personal, social philosophy and then went out and actually looked in vain for any cases that could support —

Thurgood Marshall:

Mr. MacGregor, suppose Connecticut the law and denied welfare aid to redheaded people, you think that has all the constitutionality and everything behind it?

Francis J. MacGregor:

Well, I think the problem —

Thurgood Marshall:

Once you classify, don’t you have to justify?

Francis J. MacGregor:

I’m wondering if the burden rests on the state to justify any — it seems to me in any type of civil matter that the plaintiff bears the burden of proof from the beginning of the case until the end.

Thurgood Marshall:

That’s right but the state — once the state has classified, the state has to justify.

Francis J. MacGregor:

Well they have —

Thurgood Marshall:

Well, suppose I used the word explain, do you think the state has a duty to explain the classification?

Francis J. MacGregor:

Well, in my brief, they explained the purpose of the statute.

The purpose of the —

Thurgood Marshall:

Well, don’t you think the state is obliged to do that?

Francis J. MacGregor:

I think that they’re obliged to do it and in this case, they said — they thought that the money that was going to be spent should be spent on those persons who first had helped contribute to the state’s economy.

This certainly isn’t an unusual statute.

It’s a statute that’s in 40 States in the District of Columbia and has long been sanctioned by Congress.

Byron R. White:

Well, I suppose of the pass cases that you mentioned indicated that the states stay completely silent.

But the Court can imagine or can see of some rational basis with the statute that it should sustain it.

Francis J. MacGregor:

Well, I think as a matter of common sense, Your Honor.

In fact I —

Byron R. White:

But wouldn’t you concede that if the Court couldn’t imagine any rational basis the classification and the state offered as in the case the redheaded people the statute should be (Voice Overlap).

Francis J. MacGregor:

Well, Your Honor, when Justice Cardozo had a problem fairly similarly in this event, Helvering versus Davis case, he didn’t have any problems to a matter of common sense, talking about the old age pensions being in every single state.

In fact, he said that it would seem that if it wasn’t put in every single state — that the states that did put them in would be haven of repulse for those people who desire to go there.

So I think certainly the state should put out with the purposes the state.

Byron R. White:

How about the answer to my question.

Francis J. MacGregor:

Well, I think the State of Connecticut from this case when they said the purpose of the —

Byron R. White:

Well I know but I just asked you about the redheaded people.

If the state can’t — if the state offered no explanation and the Court can’t imagine the rational basis for classifying redheaded people differently, would you say the statute falls?

Francis J. MacGregor:

Well, I would say in that case that it might well, except that it’s a question that seems so remote, a loaded question redheaded people.

I doubt if a case like that could come up.

Byron R. White:

Well, there’s a case here before us and the allegation is that there’s no explanation and the court shouldn’t or couldn’t imagine an explanation just like the redheaded people.

Francis J. MacGregor:

But I would imagine in this case, the Court could put a marginal — a rational explanation.

William J. Brennan, Jr.:

Do you want to suggest one?

Francis J. MacGregor:

Well, I would say that either one of the cases is that — particularly where states like Connecticut are having considerable problems in the amount of welfare funds they raised.

In fact Mr. Gladstone, the Comptroller of the State of Connecticut has indicated there probably be a $46 million deficit in the state budget because Connecticut has a very liberal program and an opening budget.

Byron R. White:

Why doesn’t Connecticut tend just to limit movement into the state if you think it can and if it’s empowered to do this one way or another, why doesn’t you do it the direct way or intend to do it (Voice Overlap) let in so many people a year in moving into Connecticut?

Francis J. MacGregor:

I think there’s a big difference in physically restrained persons from coming in.

There you have —

Byron R. White:

You can say that the purpose of this law is to restrain them from coming in or discourage them.

Francis J. MacGregor:

Well, there’s no question that the ultimate impact discourages has done but there’s still a difference in your question.

One, there’s a natural restraint.

The other, you’re saying that there should be subsidized travel and subsidized settlement.

Byron R. White:

Subsidized —

Francis J. MacGregor:

Well, of course, if the persons move in knowing that they’re going to get welfare and not enter the labor market, it would seem that you have a problem then on subsidized settlement and not of the restraint on the moving in.

In fact, in the Edwards case, Mr. Slaff pointed out what the real evil of the California statute was in his brief.

He said the evil of the California statute was it had a tendency to threaten under the guise of criminal prosecution.

Now, where the 17-2d threatened anybody?

It certainly didn’t threaten Ms. Thompson before the case was decided by the three-judge court, she was eligible for welfare and she drew her check starting in July, a few days after the case was decided and she’s still under oath so I don’t see where the impact of 17-2d threatens anybody.

I would imagine any — many laws discouraged people from doing things but that doesn’t mean per se they are unconstitutional violation of the Fourteenth Amendment.

Byron R. White:

So once you consider this statute as though it resided that it’s in a Purpose Clause and the purpose here is to discourage movement into the State of Connecticut.

Francis J. MacGregor:

I would — I think we admitted that in our brief.

Byron R. White:

Of proper.

Francis J. MacGregor:

Oh, I think we admitted that in our brief.

We didn’t hide it.

We admitted that the statute was discriminatory and there’s no question that the impact of the statute is to discourage people who are coming to the state where a substantial factor for them coming to the state is get on the welfare rules and not a substantial factor when coming to the state to work and in fact, I think —

Earl Warren:

Do you claim this person who came for the purpose of getting under welfare rule?

Francis J. MacGregor:

The facts say that she came in to live with her mother but I’m wondering —

Earl Warren:

Is that unnatural?

Francis J. MacGregor:

No, it isn’t and in fact Your Honor, Connecticut does not have residency requirements for old age assistance because we figure that people have lived — who lived in the state years ago who might want to come back to live with their family and probably, at one time contributed to the Connecticut economy and we don’t have it an aid to disable but my argument there is she may well have come in to see her mother but a substantial factor and was the fact that welfare — she could get welfare and we question whether she would have come in if welfare was not available.

William J. Brennan, Jr.:

However, I gather your (Inaudible) of state remedies available for this purpose and that one year reputation makes it possible to take care of (Voice Overlap).

Francis J. MacGregor:

And may I point out to Your Honor before I get to that question.

The one year is the outside limitation.

William J. Brennan, Jr.:

Well are other states have provisions like this?

Francis J. MacGregor:

Well, the only thing — I think the only problem in the State of Connecticut is a question of economics.

William J. Brennan, Jr.:

There are so many dollars available.

Francis J. MacGregor:

There’s so many dollars available and in fact $46 million projected deficit right now and certainly, one of the results I think of an adverse decision in this case would be to penalize the state like Connecticut which the right at least is fourth in the type of grants they give now in aid to dependent children and with the new cost of living commission may well be first.

And I wonder and I don’t think it takes a great deal of imagination to wonder if the Connecticut statute is struck down.

The other ones will be — are struck down whether there’ll be a rush by the states to see who can reach the lowest common denominator of welfare so there won’t be anybody coming in to the state.

Francis J. MacGregor:

Now —

Thurgood Marshall:

Is there anything in the record that’s important there?

Francis J. MacGregor:

Well —

Thurgood Marshall:

Anything other than this woman who came from Massachusetts to Connecticut to live with the mother.

Francis J. MacGregor:

Well your Honor —

Thurgood Marshall:

Do we have anything?

Do we have any expert testimony about what will happen with all these purpose coming from Hawaii and any place else to Connecticut?

Francis J. MacGregor:

No.

I realize Your Honor that we — there’s nothing in the record.

Anymore than there’s anything in the record to support some of the so called objective writers in the field of the poor that have written extensively and I know that it’s quoted liberally by my brother in his brief and which unfortunate practice was followed by the amicus briefs for the appellee.

There’s no —

Thurgood Marshall:

I read Judge Smith’s opinion and I didn’t see anything in there about any of this and that’s what’s before us and not all of these other business.

Judge Smith’s opinion is before us.

Francis J. MacGregor:

Well —

Thurgood Marshall:

Technically the judgment on his opinion.

Francis J. MacGregor:

There’s no question.

It’s not in the record but I imagine how judges experience on hearing a case like this has no difficulty.

Thurgood Marshall:

Well, I do have great experiences of proper.

Francis J. MacGregor:

Well, I refer to Your Honor as an expert in the field, I realize that.

Thurgood Marshall:

The hard way.

Francis J. MacGregor:

And nobody questions the fact that this is a difficult problem.

I don’t question the fact that it’s a difficult problem but —

Thurgood Marshall:

I just don’t see the — except the one point that the state has a limited amount of money as I assume all 50 states are limited.

I fail to see any other grounds for this classification and if that is the only ground then that can be answered by cutting their amount.

Francis J. MacGregor:

Well, the only thing I can say to you Your Honor.

Thurgood Marshall:

Am I right?

Francis J. MacGregor:

Well, I was going to answer Your Honor this way.

In the same term — 41 term at the Edward’s case was decided, this Court denied certiorari without comment in the case of Sweeney versus Board of Public Assistance.

And that was a case very similar to this case in which a person and Pennsylvania claim that the regulations of the Board of Public Assistance of the State of Pennsylvania, denied them liberty to move and live where they please in violation of their Fourteenth Amendment rights.

And the case went up from the District Court without comment to the Circuit Court and without comment to this Court and I think the judge in that case said two things that were very pertinent.

Francis J. MacGregor:

One he said, there is no arbitrary restraint here to the plaintiffs right to live where they want.

The restraint is imposed only if they want to receive a grant of public assistance from the state and then he went on to say and it’s something that I think your Brother Mr. Justice Black has very recently said in his carpenter lectures at Columbia, “courts will proceed with great caution before overthrowing in the work of such board since the investigation and study have best enabled them to determine what regulations will produce the greatest good for the greatest number and this is the fundamental aim of democracy.”

Now, I say certainly, who should know more about the fiscal problems in the welfare, problems in the State of Connecticut than the elected legislative committee that recommended the statute?

Thurgood Marshall:

But I — I am agreeing with you that the only reason they have is that they don’t have enough money.

Francis J. MacGregor:

There’s no question — I think it’s just a problem in every welfare fields Your Honor.

I think Your Honor will agree to that.

Well which in your own case are on that ground?

Francis J. MacGregor:

Well, I think there’s —

Further question, supposing the government said we got X dollars to spend on welfare, can anyone move (Inaudible) draw lots and will give it to every person in need, person in every other block, would you take it then –?

Francis J. MacGregor:

No Your Honor but I think the residency has a long history —

Well I’m just putting it on hypothetical.

Francis J. MacGregor:

— in the most —

Have you seen this picture of whole case on the theory that because Connecticut that has got only limited amount of money, it can do anything to where it wants.

Francis J. MacGregor:

No, I wouldn’t — I don’t intend to give an impression Your Honor.

There’s no question that residency has historical phases.

The question of — and I — if you have to divide that but I can’t think about any other way that it can be done.

Earl Warren:

Suppose next year, the legislature comes to conclusion that it has still less money for welfare than it has this year.

Could it then say that we will just have to cut off all those who have been here for five years and be limited in that way, would that be alright?

Francis J. MacGregor:

Well, as a practical matter Your Honor under the Social Security laws, I don’t think with this Federal Government contribute in 46% than any of the state would do it.

They wouldn’t do it as a practical economic matter.

Earl Warren:

No, I mean (Voice Overlap) constitution.

Could they do that?

Francis J. MacGregor:

Well, some states if not Connecticut have the five out of nine year residency requirement already in their age of disabled and the old age assistance program.

Earl Warren:

Very well.

We’ll recess now.

Mr. MacGregor, you may call Mrs. Williams now.

Francis J. MacGregor:

Your Honor if — superior beauty and brains I hope.

Lorna L. Williams:

Mr. Chief Justice and other justices of the Court may it please the Court.

I’m glad that my associate in this case is the main counsel of course, didn’t hang his head entirely on the redheaded matter because I think that would be arbitrary and discriminatory but that isn’t this particular kind of case.

I’m also glad the he didn’t hang his head entirely on the economic problem although that is one of the things that’s involved but there are other considerations before this Court and that has to do with the whole fundamental reason and purpose of Aid of Dependency Law.

Lorna L. Williams:

It stand the course from the Federal Government prior to the Social Security Act in which this particular law was available to states who could qualify or willing to qualify the matter of welfare and helping the poor was on the conscience of those people in their local communities under the police powers though that type of help still continues in Iowa and I’m sure it does in the other states.

During this period of time while residency is being established for ADC, I took that time in my appendix to show the Court those particular laws.

The Board of Supervisors provide that kind of help for the indigent whether or not there are minor children involved who haven’t lived in the state for a year or not.

The — I mean I read yesterday really quickly, the briefs of a legal age societies and the church groups, my heart really was touched as I’m sure this Court says that this particular program does not cover every type of situation nor was it designed to cover every type of situation.

It was designed to cover a place where the children could be brought up as our children are brought up in a community where instead of just bread and butter money and milk money, they have some professional legal counseling which our Federal Government provides funds for, our state, the government provides some funds for.

And we do this to the people who have shown that they really want to be a resident of our states and how do they intend, how do they show that intention?

Up to the time of a year, they have — they are in dire need of welfare, they are as I said on the police powers taken care of by the states.

But if they show that they really want to be — live in that state, make it their home which they have a right to do, then, they can qualify because of that one year residency for aid to dependent children if otherwise qualified.

Therefore, I’m glad co-counsel said there are other considerations besides economic.

This is an overall program where the children are tied to a community where the people care about them, where we are more or less tied because of our occupations in rearing our children.

We are not free because of law of business in my case and other jobs, the machinist and seniority rights and the factory workers to move freely from state to state when they have young children to support.

They’re more or less tied because that’s what they want to give to their children for security.

Abe Fortas:

Mrs. Williams, I beg your pardon.

Does Iowa have residence requirements for other types of relief?

Lorna L. Williams:

Yes, they do, Your Honor and one reason that we are here are at the moment, I’m defending a constitutionality in the Northern District of Iowa District Court, Federal District Court on the residency of old age assistance.

Also —

Abe Fortas:

Is there any — is there any welfare program in which there is no residence requirement in your state?

Lorna L. Williams:

I don’t think we do on Aid of Dependent, Aid of the Blind or Aid — I can’t say for sure Your Honor but —

Abe Fortas:

Well now, why would there be any exception.

Lorna L. Williams:

I beg your pardon?

Abe Fortas:

Why would there be any exceptions (Voice Overlap)?

Lorna L. Williams:

Because in our state, our welfare laws are driven by apathy.

First there was only the assistance before there was any social security law in a federal basis and that was revamped to meet the federal requirements.

The Aid to Dependent Children Law came in many years later.

Before that time, they were just dependent upon having local relief under the police powers of the state.

But the hour at the moment is second highest in the amount of money paid to these children.

You see, when this federal law was passed, it was saying to the states such as Iowa who is depending on local relief to help the people.

If you folk want to help children to live in your community and become an integrated part in residence there and they show that they want to be residents by being there a year and if you will, if you will do these other things, we will match the money, we will match your money at 50/50.

In Iowa, it comes right from one-fourth of that 50% provided by the state, comes right from the county where the people are residents from local taxes.

The other one-fourth comes from general appropriations by the legislature.

Lorna L. Williams:

If this Court were to strike down this law, you would not Your Honors be helping the other people for whom this law was designed because our legislature considers the people by case load past experience in determining what they’re asking for the legislature is going to be and when the legislature meets and on a long projected basis as a family plans for its purchases over the few years to come as a corporation plans for few years to come as a state must plan for a few years to come, what the needs are going to be so that they know how much money they’ll be able to afford, there is just so many people included in that give or take level, there’s a little margin but in Iowa, even when those girls move to another state because they were in that appropriation in that projected calculation for one year if they need it.

In another state in the Code of Connecticut and before they qualify in Connecticut or wherever they will have a residency law, Iowa continues to pay and Iowa is second from the top in the payments.

And we continue to pay, therefore —

Potter Stewart:

Now, Massachusetts didn’t continue to pay in this case, did it?

Lorna L. Williams:

I beg your pardon.

Potter Stewart:

This appellee did not — Ms. Thompson –Mrs. Thompson did not continue to be eligible for relief from Massachusetts in this case, did she?

Lorna L. Williams:

In Connecticut Your Honor, you mean —

Potter Stewart:

No, after she came to Connecticut.

Lorna L. Williams:

Oh yes.

Potter Stewart:

Did she remain eligible for relief in that system?

Lorna L. Williams:

No, she didn’t Your Honor.

But Connecticut is —

Potter Stewart:

But you’re telling us that if she had come from Iowa, she would have remained eligible for help from Iowa for a year.

Lorna L. Williams:

True and we only have so much money.

So if this Court would strike this down as not being constitutional, everyone of our women who are planning to keep their children on a certain standard of living, they have to drop a course because it is equal to everyone whether they come in their role as new, whether they’d been there ten years as long as they need the money, they share equally.

No discrimination.

Abe Fortas:

You’re saying that you’re defending Iowa’s making a distinction between dependent children who have been in the state for a year and those who have not been in the state for a year on the grounds of fiscal necessity and administrative convenience.

Lorna L. Williams:

Probably fiscal but also, the whole purpose of the Social Security Law because now, I’m going back to the Congress.

The Congress said to the states, we will match your funds and you may have one year residency law which proves the intention of this people you are intending to help.

We are giving these children some security —

Abe Fortas:

Does the Equal Protection Clause of the Constitution have any application here in your judgment?

Lorna L. Williams:

In my judgment Your Honor, these people have equal protection of the law.

Abe Fortas:

No, you have to compare — do you have to compare a dependent child who does not get these payments with a dependent child who does on account of residence?

And does the Equal Protection affect that at all?

That’s really a basic constitutional question.

Lorna L. Williams:

That is correct and that is why we are, before this Court on this constitutional law questions.

The welfare briefs filed by the Welfare Department in one of the heart rendering, it’s not a question of poverty.

Again, this isn’t intended to cover all poverty.

We get right back to the constitutional law of questions and these are the three fundamental ones as I view them.

One, can there be reasonable classifications and is this reasonable?

Lorna L. Williams:

It’s reasonable because it affords the ones who want to have a sort of permanency in that community and have the professionally hired counselor come into their homes and help them on their family problems.

If the kids need some dentistry, they can talk with them about that and of course money is forth coming.

If they’re having trouble in school, they’re retarded, many times in my private practice attorney for the state, divorce matters.

They work with these people.

They help them.

They consult with them.

They have a friend in the community besides just bread and butter money coming from that.

It is tied to helping people.

It’s a reasonable classification to help the children.

It’s not Aid to Dependent Parents, it’s Aid to Dependent Children.

The parents qualify if in Connecticut, they didn’t qualify sooner than one year in fact, if the parents want to work and they’re able to work.

Many of us mothers work and our children will take care of their grandparents or neighbors.

So the Work Incentive Program which the Congress has now passed will be before this Court soon, sure enough.

I imagined that someone is going to say that constitutional right are infringed upon because they can’t get welfare because they want to not work.

Potter Stewart:

That’s one.

You said there were three.

What are the other two?

Lorna L. Williams:

The other one is brought out already.

On this budget proposition on long range planning, it’s necessary to have that and the other — the third when moral is tied with that also because it’s not the judiciary that says how much appropriations are going to be made.

In fact, the states –there’s no obligation on the states to make — to go in to this plan under ADC.

They want to do it because they can help their local citizens to a greater extent.

So those are my three.

Earl Warren:

Thank you.

Mr. Hollander.

Brian L. Hollander:

Thank you, Mr. Chief Justice.

Mr. Chief Justice and may it please the Court.

I’ll just take a brief moment before I address myself to the case at hand just to answer the arguments made by the married counsel from Iowa.

Firstly, as I understand her argument, she would define residents somehow differently than the law defines it.

She would expect that a person would have to be — establish something more than presence in the state and does intend to remain in the state.

She would expect that a person would have to somehow have a burden of proving that she really wanted to be a member of the community of that state.

She’s talking about the terms of domicile.

Brian L. Hollander:

Well I think even as to domicile at least in Connecticut, domicile is defined the same way as resident presence and intention and —

Potter Stewart:

How about voting in Connecticut for example.

Brian L. Hollander:

I don’t think that if the Court upholds the District Court’s opinion in this case then in anyway interferes with the —

Potter Stewart:

I am simply asking what the Connecticut law is about voting.

Brian L. Hollander:

You have to be a resident for six months not one year.

Potter Stewart:

So at least for some other purposes, Connecticut defines — it qualifies the people a little different from domicile from simply a presence there with an intent to remain there indefinitely.

Brian L. Hollander:

Well, I don’t think that Connecticut defines resident as a person who is in the state for six months.

Connecticut just says you have to be in the state for six months before you can vote.

It’s somewhat similar to the Duration of Residence law and issued before the Court.

Hugo L. Black:

You think it’s constitutional?

Brian L. Hollander:

No, I do not.

I think the state has a valid purpose in the support of that law, the voting law and I don’t think it’s put in issue by the issues in this case.

I think that —

Potter Stewart:

What is the difference constitutionally?

Brian L. Hollander:

Well, as the Court has said in — as it has been said recently, a District Court case which was not reviewed by this Court, there is a problem of potential fraud in voting and also, there is the requirement that a person have sufficient knowledge of the facts so that they can cast their vote in a reasonable way and the objectives of an election can be accomplished.

I think that that is reasonable.

I don’t think that — as I said, I don’t think the whole — this law unconstitutional in anyway, affects the constitutionality of that —

Abe Fortas:

Well, the residence requirement for voting, I shouldn’t think would affect the mobility of people when they travel from states whereas I think the principal point here is that the residency for this welfare of payments, requirement of residency for these welfare payments may have — maybe a burden on what is called the right to travel, is that right?

Brian L. Hollander:

Yes, I am sorry Your Honor.

Did you say that it would not —

Abe Fortas:

It’s not important, go ahead.

The voting would not — if I may just go direct to the facts and set them before the Court.

At the time that the appellee entered the state, she was unwed.

Her purpose in coming to the state has been stipulated too in the record as to be near her mother who had been resting in the State of Connecticut for eight years.

She had been receiving welfare from the State of Massachusetts and she came in to Connecticut and resided for approximately two-and-a-half months with her mother before she turned to the state for assistance.

She initially turn to the City of Hartford, Department of Public Welfare for what we call in Connecticut, temporary assistance and that was granted the day after it was applied for even though the residence requirement in Connecticut exist for purposes of AFDC, the Aid to the Families with Dependent Children.

It does not apply at least for a period of 60 days for temporary assistance which is submitted — administered by the local welfare units.

Now, she then applied to the state for AFDC and she was denied assistance in the sole ground that she had not met the one year or the durational residence required in Connecticut.

This action was taken despite the fact that she was no longer a resident of Massachusetts.

Abe Fortas:

She had no intention of going back to Massachusetts.

She had no desire to go back to Massachusetts and in fact, is she’s going back to Massachusetts she would have been ineligible for AFDC.

Why was she being denied?

Brian L. Hollander:

Well, because Massachusetts at this time — at that time, Massachusetts also had a similar residence law.

So for purposes of receiving public assistance, if she could not receive assistance in Connecticut at least as to those other states that have residence requirements, she could not receive assistance there and specifically, Massachusetts from — the state from which she had come?

Hugo L. Black:

How long did it require that?

Brian L. Hollander:

One year.

Now —

Potter Stewart:

We were told that somebody who leaves Massachusetts loses his eligibility for any help from Massachusetts immediately.

At least that’s what I understood the question.How about somebody who leaves Connecticut after having been eligible in Connecticut?

Does Connecticut — decided somebody who live for awhile.

Brian L. Hollander:

No, Connecticut has no provision like Iowa has with —

Potter Stewart:

Neither to Connecticut or Massachusetts.

Brian L. Hollander:

No.

I personally don’t know of any other states that do another — maybe.

I just don’t know that — on the ground that the action taken by the State Welfare Department was illegally — we requested if their hearing — their hearing was held on the ground that she had not met the residence requirement and relief was denied.

The three-judge court panel was compelled and the action was brought before the District Court.

Now, during the period of time from the denial of benefits by the State of Connecticut and the termination of benefits from the Hartford Department of Public Welfare, the appellee was supported by private agents in Connecticut, Catholic Family Services.

Now, Catholic Family Services voluntarily provided assistance at a level below the level that the appellee would have received from the State of Connecticut for approximately 23 weeks.

It should be pointed out here that it’s in the transcript, the part of the unprinted record from the District Court that the Commission of Welfare in Connecticut states quite clearly that this is a unique situation that private charities cannot be called upon to render this type of assistance today.

They just do not have the funds to do this.

It was at the request and the uniqueness of the situation that the private charity did this.

Now, Connecticut has a basic welfare statute which is 17-85 which provides that any relative having a dependent child who is unable to furnish suitable support therefore in his own home shall be eligible to receive AFDC.

It should be made clear that the child gets the benefits derivatively through the parent.

A parent must apply.

The child has no status to apply individually.

Now, this means that if you turn to Section 17-2d that even though a person is without — is unable to furnish suitable support for the dependent child that that person will not receive assistance for the period of the Duration of Residence Law.

Now, on its phase, Section 17-2d makes ineligible those new residents who arrive in the state without visible means of support for the immediate future.

Now, as this statute has come to be administered, pursuant to regulations drafted by the Commission of Welfare and these regulations are set forth in the brief and in the printed appendix, benefits are denied all new residents in Connecticut for a period of three months regardless of under what circumstances they have to the stay for three months, they are denied with benefits.

Now, after the three-month period is up, the person who enters the state either with a job or with sufficient personal resources to have supported himself and his family for a period of three months is then eligible to receive assistance.

Brian L. Hollander:

Now, for the purposes of defining resources, the state excludes moneys which come from relatives, friends, public, private or voluntary agencies.

So what it boils down to is a person who comes into the state and has saved some money and has enough money saved to support themselves and the family for a period of three months or comes into the state with the job that that person is eligible for assistance after three months have elapsed.

As to all other persons, they’re ineligible for one year.

Now —

Abe Fortas:

Did you say that that applies to all types of assistance?

Brian L. Hollander:

This applies to — pursuant to the statute applies to AFDC and to what they call general assistance which is the Temporary Assistance Program administered by the local units.

It does not apply to the other welfare programs applied — administered by the state.

Abe Fortas:

Does that apply to old age?

Brian L. Hollander:

No, it does not.

Now, it should be pointed out that the testimony in the transcript makes clear that both as to the local units and as to the state that at the time that an applicant who is subject to this law applies for assistance.

They are told what the law is and that if they do not qualify because they do not have a job or sufficient resources to support themselves for three months that the only help that the state will give them is to send them back.

Now, the state defines this as voluntary return and it’s true that Connecticut no longer has a mandatory removal law.

But this information is passed on initially at the initial interview.

Now, in the case of this particular appellee, she was offered money to return to Massachusetts and she turned this down on the grounds that she had no intention to return to Massachusetts that her intention was to remain in Connecticut as a resident.

Now, at the time that the appellee applied for assistance, she was pregnant and as a result of that, as stipulated to by the parties in the lower court, she was unable to either enter a job training program or to go to work.

In addition to being pregnant, she is a mother of a child of less than one year of age and therefore her place was in the home.

This is also directed in the transcript and testified to by the Commissioner of Welfare that it is not the policy of the Connecticut Welfare Department to separate mothers and minor children at that age.

Now, the District Court made a finding that the purpose as admitted by counsel before the Court this morning —

Abe Fortas:

Excuse me Mr. Hollander but I’m not sure that I quite understand this.

You have this three-month disqualification of everybody, is that right?

And is there an additional period of disqualification for the ADC?

Brian L. Hollander:

Yes, Your Honor.

Abe Fortas:

Now, how does that work?

Brian L. Hollander:

Well, if you enter the state without a job at the time or without sufficient personal resources to support yourself for three months then you have to wait a year.

Abe Fortas:

But you mean to say that if a person migrates to Connecticut with dependent children and she comes there with a job then she is entitled to the ADC payments three months after she arrives.

Brian L. Hollander:

Yes, Your Honor.

Abe Fortas:

But if she comes there without a job and without personal resources as you have described them then she has to wait one year — for a year to pass.

Brian L. Hollander:

Yes, Your Honor.

Abe Fortas:

And what is the explanation of that — what is the facial explanation of that or the explanation of your adversary?

What’s the justification of that?

Brian L. Hollander:

I don’t think there is any justification.

I think that the only justification I have ever heard is the one suggested this morning and that is that this is the way that Connecticut felt that it could best protect its budget and that somehow this would accomplish this.

Byron R. White:

I suppose that the counsel suggested that Connecticut was innocent in keeping people out who are coming there only for the welfare payment.

And if they came there for jobs, they weren’t coming for that purpose and even if they loss the job or needed the payments at some point, they could get them.

Brian L. Hollander:

Well, yes Your Honor.

That is certainly —

Byron R. White:

The same point as to different way.

Brian L. Hollander:

Yes.

I think that highlights the purpose of the statute and that is to keep people out and then Connecticut would go on and say as they have in their brief that because they will give assistance to persons who have come to the state, wear the job or with sufficient resources that the real purpose of the statute, to rationalize the purpose of the law is to make sure that only people who contribute to the economy perceive assistance but I think to see that that is merely a rationalization and really not the fact.

You just have to look at the basic grant to persons who have lived there longer than a year and the only thing they have to prove is that they have the need and which means that if the person enters the state with enough money to live for three months — well, enters the state with enough money to live for a year, all they have to do is regardless of what they do in that either — if they dissipate the funds, if they just sit around and do nothing and at the end of that year and they come in and reply for welfare like anyone else who has lived in the state for a year that they will get to welfare if they can establish the need.

Byron R. White:

What’s the other possibility when you entered the state of being able to get aid at the end of three months instead of a year and you arrived at least with cash stake?

Brian L. Hollander:

With a sufficient cash stake, you’re right.

That’s —

Byron R. White:

So the first that comes in with enough to do what?

Support him and his children or her children in three months.

Brian L. Hollander:

Right.

Byron R. White:

And then runs out of — her money is exhausted, she may then secure ADC payment.

Brian L. Hollander:

Right, and the only thing she has — right.

The only thing she has to establish is need.

That’s the only thing.

Byron R. White:

And the only thing that she needs to do to establish that is to just run fresh out of money.

Brian L. Hollander:

That’s right after three months.

After three months.

Now —

Byron R. White:

But the person who came in without any money at all can’t get it after three months or has to wait a year.

Brian L. Hollander:

Must wait one year unless of course they work — they are interrelated and that is that job that would satisfy the statute but if they have either a job or the personal resources then of course they must wait for the year.

Hugo L. Black:

How long does Connecticut gather all that?

Brian L. Hollander:

I am not sure about the date of origin.

Well, this particular law, they have had for — this is the third year.

Hugo L. Black:

I’m talking about a law like this.

Brian L. Hollander:

Well, the law like this goes back into the 30’s?

Hugo L. Black:

Of where?

Brian L. Hollander:

Into the 30’s Your Honor.

Hugo L. Black:

It goes back in that time?

Brian L. Hollander:

Well, the —

Hugo L. Black:

It was like colonial days.

Brian L. Hollander:

A different kind of law.

Now —

Hugo L. Black:

What law do they call it there?

Brian L. Hollander:

Yes.

Well, I think the origin in this country was the removal statute and Connecticut has a removal statute from 1796 until 1965.

Hugo L. Black:

What was the removal statute?

Brian L. Hollander:

A removal statute provided that as to those persons who were resident — those persons who belong to another state that those persons could be forcibly removed from Connecticut.

Now, that’s the forerunner —

Hugo L. Black:

That was — that law is like all over the colonial —

Brian L. Hollander:

Yes Your Honor.

Hugo L. Black:

The descendants of America or the English colony.

Brian L. Hollander:

That’s exactly true.

Hugo L. Black:

Some of whom made crimes to come in.

Brian L. Hollander:

That’s exactly true.

Hugo L. Black:

That’s part of that history.

Brian L. Hollander:

That’s exactly true and they’re not — this law is not so different at least in purpose.

Now, this will also has a removal provision but it’s a voluntary removal and they’ll say to you that, no, you can’t stay here because you can’t receive assistance for a year.

Now, if you’d like, we’ll pay your way back and we’ll be happy to make sure that you go back to where you came from and they couple the two together, the fact that they can’t receive assistance and that the only assistance they can receive is voluntary return.

Hugo L. Black:

That law came into existence and then on the counter effect as one section gives higher full relief to have people from other sections to come in to that place to live.

Brian L. Hollander:

This may have been the origin Your Honor.

I think it’s certainly, the purpose was to keep — to keep out those persons who are indigents, right.

And I might point out that that issue was discussed by this Court in the Edwards case and I think that the Court made it very clear that loss of that nature have no place in our present system and the Court explicitly said that settlement laws or laws of that sort of a nature have no place in our system and that in fact is the basis of one of our arguments and that is that this law in fact breaches the right to travel as that right was discussed by the Court in the Edward’s case.

And in that particular point, we would rely expressly on the Court’s theory in that case where they said as I’ve stated that the settlement law notions no longer have any place in our system and that in fact, this is exactly what Connecticut is trying to do.

They’re trying to keep indigents out of the state.

Thurgood Marshall:

Am I correct when you have the removal statute, it picked you back and took you back but now, you come in without money.

They tell you that you need to go voluntary or to stay to death.

Brian L. Hollander:

That’s exactly true.

The most recent Connecticut removal statute was not quite that forcible.

The state had a little more leeway and they could turn the certain issues in deciding whether or not they should in fact remove a person merely because the person was poor and they did not automatically remove.

Hugo L. Black:

When do you think the Equal Protection law required in Connecticut immediately the first day or the first month or the sixth month?

Brian L. Hollander:

Well, I think that if the state can give no better reason for keeping them off the indigent roles and Connecticut has in this case, I think that they should be allowed to receive assistance immediately.

For instance, if the state said that it’s necessary to administer its laws that they go through some sort of an investigatory period.

I would say that the certain state has the right to do this but this is not a duration — what I’m suggesting now is not a durational period but a period which would enable the state to administer its laws properly, certainly, that’s a valid purpose but Connecticut has admitted that it has not such need.

Now, I just might turn to my legal arguments.

The statute as I have tried to describe it is firstly unconstitutional under the Equal Protection Clause because as the classifications are drawn between those persons who have resided in the state for less than one year that the classification is unconstitutional on its phase.

The classification is drawn — clearly drawn in the basis of wealth.

It’s drawn in the basis of when the person has a job, whoever person has sufficient resources to support themselves for one year and that clearly as this Court has held in the line of cases emanating with Griffin that that is clearly a classification between rich and poor.

Now, when I use the word rich, I may be using inadvertently but it is certainly a classification drawn in the basis of wealth.

Everyone is certainly poor but there is the factor of wealth.

Now, if you look at the facts and look once again to the facts in this case, we find that she was unable to work, she was unable to go into job training.

She was a resident of Connecticut.

The state admits this under any definable — any definition which Connecticut has laid down for residence or domicile, she qualifies and the only reason why she was denied with the assistance was because she was a newly arrived indigent without the sufficient resources to satisfy the statute.

Now —

Abe Fortas:

How do you say that she qualifies as a resident, on what basis?

Is it just because her intention to reside there indefinitely.

Is there anything in Connecticut law that would indicate or any purpose that standing alone is enough?

Brian L. Hollander:

There is nothing in Connecticut law which says that the standard which the Connecticut Supreme Court has set down to which I have sighted in my brief applies to all programs and for all purposes but it is clear that as to ponder that standard, she does qualify as a domiciliary.

Now, the state has stipulated that she is a resident.

Abe Fortas:

And actually, your submission does not depend upon residence, does it?

Your submission as I understand it, does not depend upon how the state chooses to define resident for state purposes regardless of how the state defines resident for straight purposes that there is a supervening federal constitutional principle here that requires that dependent children all be treated alike, allowing of course for whatever period of administration or investigation might be necessary.

Is that your position by making that statement?

Brian L. Hollander:

That is correct Your Honor.

Byron R. White:

What happens if the lady got a — this lady had come to Connecticut to take care of her mother for — during an illness for three months at no intention of staying there that one led to another and she was is there six months — if Connecticut wouldn’t have to furnish ADC payments during that period, why wouldn’t they?

Brian L. Hollander:

Well, I think the point I’m in response to Mr. Justice Fortas’ question was that we do not rely on that fact.

Brian L. Hollander:

That is not essential.

I think that for the purposes of this case —

Byron R. White:

Would the Constitution require Connecticut to make payments during that period?

Brian L. Hollander:

I think that if Connecticut could satisfy itself that the person and in fact was not a resident of the state —

Byron R. White:

(Inaudible)

Brian L. Hollander:

Well, in this sense, a state does not have the obligation to pay benefits to a person in a neighboring state who somehow can come in to the state but yet remain in the neighboring state.

That person would be clearly outside the state’s responsibility.

Abe Fortas:

Well, that means that Connecticut can satisfy itself if the person lives there.

It should get away from technical definitions of residence or domiciliary wouldn’t you?

Brian L. Hollander:

Yes.

William J. Brennan, Jr.:

Well, really?

Are you saying anything more than that if Connecticut disqualifies this lady for no reason except that she’s not been in the state for one year, otherwise she’d be qualified as everyone else who’s been in the state over a year would be qualified.

Constitutionally, your Equal Protection argument is that cannot be done, is that it?

Brian L. Hollander:

No, that can’t be done.

William J. Brennan, Jr.:

That’s really your argument.

Brian L. Hollander:

Yes.

William J. Brennan, Jr.:

You don’t have to get into the nuances of what is residence or domiciliary.

Brian L. Hollander:

That’s correct.

That’s right.

Now, we make a right to travel argument in the brief and I think that we relied solely on the Edward’s case on the fact that this Court has clearly said that there is a right to travel that the tied here is to the Edward’s case is the fact that basically the same issues are being pressed here by Connecticut that was being pressed by California in that case.

California had a tremendous burden financially with indigent persons who are coming in to the state at that time.

Probably a greater burden that Connecticut currently has and that —

William J. Brennan, Jr.:

That was total exclusion.

No and in fact it wasn’t.

It wasn’t total exclusion.

In fact, the Act was directed — the criminal statute was directed against to the person to move someone in and not the person who is coming and certainly at the time that the action was brought, the person have to be in the state exactly the same way that the appellee was in the State of Connecticut when this action was brought in.

And the Court made it clear that where a state that has it as its purpose and the basic effect to the statute is to exclude indigent persons from the state that that statute is impermissible.

Now, my final point is also a — the broader equal protection argument and that is the one that there is a distinction drawn between persons who have been here for one year and the persons who have not — and we would just say that that is arbitrary and unsupportive on the Constitution.

Thank you very much.

Earl Warren:

Number 1134, Walter E. Washington et al., appellants versus Clay Mae Legrant et al.

Earl Warren:

Mr. Barton.

Richard W. Barton:

Mr. Chief Justice and may it please the Court.

This is the second of the three related cases before the Court today, dealing with the constitutionality of residency requirements for public assistance.

This case I think, presents the question in a little cleaner posture than the case which has just been heard and that the statute in the District of Columbia makes a classification between those who have been here for one year and those who have not, clean across the board without ifs, ands or buts.

It applies to all five classifications or categories of public assistance.

It is unlike the Connecticut statute in that way and the statutes of many other states that have subclassifications within the single classification of a one year residency requirement.

Now, of course residency requirements are not new.

46 of the 50 states have a residency requirement for at least one category of public assistance.

Many of them as the District of Columbia have a residency requirement for all categories of public assistance.

Others have it for some but not all.

There are of course all set of residency requirements in other fields of law voting, holding both public and semi-public office entitlement to licensure of various profession and colleagues and in many other areas.

As we see the problem presented in this case, it turns upon what standard is to be applied in judging this classification.

Now, this Court over the years has have run out to general standards toward judging the constitutionality of legislative acts.

That is what I would call the general standard which is applied in most cases and under that standard, the Court has said that legislatures have a very wide scope of discretion in classifying the citizens in the two different classes.

Potter Stewart:

You’re talking about cases arising under the Equal Protection Clause before?

Richard W. Barton:

Yes, Your Honor.

Potter Stewart:

This of course does not directly apply to this case except through Bolling against Sharpe.

Richard W. Barton:

Well, I think the same standards — the two standards had been applied in various different constitutional attacks that is whether a particular Act is constitutional or not and it has been applied in many circumstances in which the contention similar to those that is equal protection contentions are made.

Now the exception to the general rule is of course in cases where preferred First Amendment rights or freedoms are concerned.

This exception also applies where there are classifications based upon race, color, nationality and so forth.

But except where a preferred First Amendment freedom is concerned or where there is a classification based upon the race, the general rule which has been applied by the Court is that the statute itself is given a presumptive constitutionality and it may only be held unconstitutional where there is no conceivable set of facts or circumstances which would justify the classification.

If the Court can conceive of any possible justification for the classification then its constitutionality must be upheld.

Now, that of course does not apply in the exceptional cases where First Amendment freedoms are concerned.

The shoe is always on the other foot.

The government is required to show a compelling reason for any legislation which infringes upon preferred First Amendment rights.

And furthermore, the remedy, the provisions of the statute can be no wider, no broader than the evil which they are sought to control or the problem which is presented.

That is of course the over breadth argument which is applied in that classification of cases.

Potter Stewart:

There might be countless reasons of why a statute might unconstitutional or at least could be attacked as constitutional, one that had violated the right to free speech, violated the Establishment Clause, another that it was a Bill of Attainder and other that it was beyond the Article I, Power of Congress to an Act.

Surely, you’re not just talking in gross about the constitutionality down under the law passed by a Congress or a State?

Are you confining yourself to attacks — to questions arising under the Equal Protection Clause of the Fourteenth Amendment?

Richard W. Barton:

Well, my argument is Your Honor that the court below here clearly applied a standard for judging the constitutionality of a Legislative Act applicable to First Amendment areas only.

Potter Stewart:

You’re saying that it’s not a First Amendment case.

Richard W. Barton:

Yes, and that is as we see it, the principle vice of the majority opinion below that the Court apply to the wrong standard in judging the constitutionality of this particular Act of Congress.

Thurgood Marshall:

Mr. Barton.

Richard W. Barton:

Yes sir.

Thurgood Marshall:

You’re not going to make the same argument that Connecticut made that the government is too broke, are you?

Richard W. Barton:

To some extent Mr. Justice Marshall.

I think that one of the legitimate purposes of this Act is to protect the local fisc that is a conceivable purpose.

Now, not to keep indigent people out of the state as such, the appellees violates except to this or perhaps arguendo as a conceivable, acceptable legislative purpose, say that it is just nonexistent factual issue that there is no need for any such legislation as this, to keep indigent people out of the District of Columbia.

They just don’t come here for that purpose that people come to the District of Columbia in the great majority of the cases at least for purposes unassociated with public assistance.

They don’t even think how much public assistance if any that they will get when they come here.

But I think Congress could well have had in mind a extraordinary circumstances such as we are faced right of this moment in this city as the Court is I’m sure aware there is plan and has been for some time and would probably be in progress right now but for the untimely death of Dr. Martin Luther King, poor people’s marched on Washington whereby it was proposed to bring up to 100,000 poor people into the District of Columbia to remain here indefinitely until they obtain the rights to which they believe they were entitled.

Now, let us assume that happens and it is certainly not beyond the realm of possibility that it may a 100,000 poor people suddenly descend upon Washington.

If we are to judge their eligibility for public assistance by the standard that the court below said was proper, number one, you are physically present in the District of Columbia.

Number two, you have an intention to remain here indefinitely.

Every one of those 100,000 people if they were needy would be eligible for public assistance.

That would just open the drain, pull the plug out of the fiscal bathtub and there would be no money left for the administration of the program for the rest of the year.

Thurgood Marshall:

What argument would you have made assuming Martin Luther Kind didn’t die and they weren’t marching here?

Richard W. Barton:

Well, I think that that could have been a conceivable purpose that such an unusual situation such as this could have come about that Congress could have had in its mind.

Thurgood Marshall:

Important to any debate, any piece of paper that says there —

Richard W. Barton:

No Your Honor, I cannot.

There is nothing in the legislative history of the Act that I am aware of that would support the proposition that the Congress had in mind a poor people’s march on Washington.

There is I think mentioned of extraordinary circumstances but not anything specific like this.

The legislative history of this particular Act, that is the Act that was — a Bill that was enacted as this Act is rather skimpy.

There were Bills introduced in prior sessions of Congress, containing almost identical provisions upon which there were very extensive hearings and as to the contention incidentally that the Congress just threw this in as an after thought without giving much attention to it or without really considering what it meant or what its purpose was.

I think it is destroyed by the hearings on the prior Bills.

There were very extensive hearings on Bill as 2363 of the 86th Congress, second session and before the committee at that time, every conceivable argument against the residency requirement, I think it was advanced upon the committee and upon the Congress.

So the Congress was familiar with every one of these arguments against it and they still enacted a one year residency requirement.

Abe Fortas:

I suppose really to protect the treasury of the District of Columbia, the best thing to do would be to prevent these 100,000 people from coming here because it will be a burden on the District Treasury if they come here.

Perhaps a burden which in totally will make the ADC payments look like nothing at all.

Richard W. Barton:

Yes, that is conceived but I do not think the Congress or the District of Columbia could consist with the constitution and prevent them from coming here.

Abe Fortas:

Why not?

Is that just because of Edwards?

Richard W. Barton:

Yes, I think it would be.

Well, I don’t know if it’s just because of Edwards but I think that the constitutional rights to travel would definitely prevent a absolute prohibition against coming here.

Abe Fortas:

Yes sir.

Now, is it your position that the — when your residence requirement does not affect the travel of people between the District and the various states.

Richard W. Barton:

Not to any extent which infringes upon constitutional — the constitutional right to travel.

Abe Fortas:

Well, that implies if it does affect in your information.

Richard W. Barton:

Yes, I think to some extent it would.

That is if someone get it for a year that may discourage her from coming here but of course we have similar (Audio Cut)–

Abe Fortas:

And that the excess sunshine which California had attracted people from the other states in California are to be able to offset by reasonable rule and regulation.

Richard W. Barton:

I was not aware of that specific argument but of course, the statute involved in Edwards was quite different from this.

This was — that statute was close to our prohibition against coming in at least a criminal penalized anybody who assisted an indigent from entering the state.

Abe Fortas:

What you’re saying then on the commerce part of the argument is that — as I understand it is that the effect of the one year restriction maybe a burden on free movement of people in commerce but it is not an unreasonable burden because of its relatively small impact, is that it?

Richard W. Barton:

Yes, I am saying that and I think I have to go beyond that Your Honor to say that it is not a sufficiently severe restriction upon the right to travel to infringe any other provision of the Constitution because you recall in Guest, the justices split as to the source of the constitutionally protected right to travel.

It is not an agreement as to where it is to be found in the Constitution although there is agreement that it exist but whether it’s in the Commerce Clause or in any other provision, our position is that this restriction does not arise to constitutional proportions.

Thurgood Marshall:

Do you think the government points out every core person that had been held less than a year, merely because he was here less than a year without work.

Richard W. Barton:

I think that the Congress could, consisted with the Constitution say that for the purposes of public assistance, you are not a resident of the District of Columbia unless you have been here for one year —

Thurgood Marshall:

Do you think public assistance is controlled by the equality provisions of our Constitution?

Richard W. Barton:

Yes, I would not say that it is outside the scope of them.

I do not make the argument.

Thurgood Marshall:

I don’t want to give you the redhead question but how — what is there in this record that shows the reason for one fencing out anybody who’s been here less than a year, and two, picking the year instead of 11 months, 13 months, two years, five years and ten years.

Is there anything deriving on that?

Richard W. Barton:

No, I do not think there is specifically.

The legislative history of this particular act is somewhat skimpy.

Now the court below suggested three possible grounds or reasons fro the Congress enacting this particular provision.

One was to protect the local fisc that we have already discussed.

Two was to prevent fraud and three was what the other side calls administrative convenience that is there are all kinds of difficult, factual and legal problems which can arise in determining whether or not one is a resident in various context.

Whether or not — of course you have to be physically be here but what about your intention to permanently remain here or indefinitely remain here.

Richard W. Barton:

If you’re here just to treat a sick relative, you meet that.

Thurgood Marshall:

How long do you have to be a resident before you go to the District?

Richard W. Barton:

One year I think Your Honor.

Would that have done it?

There is nothing to indicate in the congressional history that I know of that they acquitted those two.

Prior to the enactment of this particular Act, the 62 Act, there were other acts of Congress covering public assistance, separate Acts as to each category and each category had a different residency requirements.

Some of them are up to five years and above all the legislative history of this Act shows is, that it was the intention of Congress to make the residency requirement for each classification the same and to make it at one year.

Now, there may have been another possible reason under the federal legislation which funds most of these programs.

There is a limitation of one year maximum on the residency requirement of a state that is in order to receive federal funds, you have to have an approved program of public assistance in the state, and the program will not be approved if the residency requirement exceeds one year.

So the Congress has specifically authorized in that sense all states to establish a residency requirement of up to one year but no more.

Now, the state of course is not required to accept federal funds if he wants to conduct a program entirely of its own funds, it can do so and have any residency requirement he wants to as far as that legislation is concerned.

But from the practical standpoint, the states want the federal funds so they have cut their residency requirement down to one year.

Now, that — it may have been the intention of the Congress in enacting this legislation to make the residency requirement which it was permitted of all states, a one year residency requirement the same as that in the District of Columbia.

But again, I cannot point to anything specifically in the legislative history which would support that.

Now, there is the contention made here by the appellees.

It has been made in the other three cases here of the right to travel, freedom of movement argument.

Now, it does not appear that the majority of the Court here expressly relied upon that ground and declaring this statute unconstitutional.

Their stated ground was Fourteenth Amendment, the Equal Protection.

But their reliance upon such cases as Edwards and Kent, Aptheker, I think clearly indicated that at least as an alternate ground or perhaps a part of their original ground, they were relying upon a violation of the right to travel.

Now, that comes back to the appropriate standard.

The argument is made here that the standard which this Court has applied in First Amendment cases is the proper standard here.

And I think I would have to concede that if the Court is to judge this legislation by the standards that it applies to a legislative Act which infringes directly a First Amendment right of association, communication religion that it could not stand out.

The question is, is that the appropriate standard?

And I think there is where the court below went off and the courts in the other cases which stricken down such legislation have gone off.

Earl Warren:

Do you make any distinction between the different categories of assistance Mr. Barton?

Richard W. Barton:

No, I do not as I say.

Our statute has the same one year residence —

Earl Warren:

I know what you do but I mean, is there any constitutional limitation on any of those that does not apply to other?

For instance, old age assistance, is that govern by the same standard would you say as this is in this case?

Richard W. Barton:

Frankly, Mr. Chief Justice, I have not given too much thought to that distinction.Perhaps, there are distinction between old age assistance and the others.

Richard W. Barton:

As a matter of fact, under our statute, you’re not only have to be here for one year immediately proceeding the date of your application for old age assistance but you had to have lived in the District of Columbia for five out of the last nine years I believe it is.

Earl Warren:

That’s why I was asking that question because I know many states do have different standards there and I wondered if they’re in your opinion —

Richard W. Barton:

Old age assistance is the only category which is not before the Court in this case.

The other four categories are.

Abe Fortas:

In old age assistance, I suppose that the residence requirements applies equal at all the people of the same age, doesn’t it?

Richard W. Barton:

Yes, Your Honor.

Abe Fortas:

And is it a point of distinction here with respect to aid of a benefit of dependent children.

You may have children who are exactly the same age, exactly the same circumstances, exactly the same situation with respect to being born with or without benefit of clergy and there is a differentiation made on the basis of the residence of their other —

Richard W. Barton:

Yes, that is true.

It’s a clear classification here either you have been here one year or more or you haven’t and what other considerations, age, illegitimacy or anything are not considered but the point about the right to travel I think the argument is made that this is a — if not really a First Amendment freedom right, at least something so akin to it that it should be judged by the same standard that a infringement upon a First Amendment right is judged by.

William J. Brennan, Jr.:

Well have our cases suggested that the constitutional guarantee of the right to travel was a First Amendment guarantee?

Richard W. Barton:

No Your Honor, in Zemel versus Rusk —

William J. Brennan, Jr.:

By contrary.

Richard W. Barton:

Exactly the contrary but —

William J. Brennan, Jr.:

But I gather your argument is that because it is — there is a broader latitude to the government with the state or federal to regulate the right travel and that would be to regulate the right to freedom of speech — is that your point?

Richard W. Barton:

Yes, it is.

Byron R. White:

Well, at least that’s a different equal protection standard once it comes into play.

Richard W. Barton:

Yes, I think it could be stated that way.

Byron R. White:

And you say the court below applied the wrong equal protection standard in casting this law.

Richard W. Barton:

Yes.

Byron R. White:

And you don’t suggest that — if we agree with you, do you suggest we remand it or then do we say that we should then test the law here against the right standard?

Richard W. Barton:

I would say the Court should and could test the case here by the proper standards.

Byron R. White:

Have you then given us the — what that right standard — correct standard is and suggested some satisfactory basis for this classification?

Richard W. Barton:

Yes, Your Honor.

I think the standards which the statute should be judged by are those declared in McGowan, McLaughlin and so forth.

And if judged by those standards, I think there are conceivable rational basis for this particular —

Byron R. White:

Are those the ones that the court below suggested?

Richard W. Barton:

Yes, Your Honor.

Byron R. White:

You agree with those?

Richard W. Barton:

Yes.

Byron R. White:

And those are sufficient in your view to sustain this law.

Richard W. Barton:

Those are sufficient, yes Your Honor.

Thank you, Your Honor.

Earl Warren:

Mr. Smith.

Peter S. Smith:

Mr. Chief Justice and may it please the Court.

I want to deeply mention the facts in this case if I may, because I think they make it somewhat easier to understand some of the legal arguments.

There were four appellees; one as the Court knows recently passed away, three of them, all but one Vera Barley who was residing in St.Elizabeth’s Hospital came to the District of Columbia from Arkansas, New York, South Carolina respectively for reasons which are elaborated in some details in the complaints and in the affidavits to support a motion for preliminary injunction which is part of this record and we referred to them extensively our case.

These people came here for the reasons we think that people do move.

Mrs. Harold came here because she was ill with cancer and she had three children and she wanted to be assured that her brother and her sister could take care of those children if something happened to her.

Ms. Brown had been here on a numerous occasions before had gone to school here and was returning here for very good reasons because she was unable to live in Fort Smith, Arkansas anymore because she was not eligible for public housing.

I think the facts of this case show two things.

First of all the record very clearly show why the appellees here moved and motivation and so on and I think the second thing they show is the typical reasons why people move.

They move to be with family.

They move to seek employment and new horizons.

I think those facts need to be kept in mind as we analyze the issues here.

Hugo L. Black:

I understood you want to move here for the purpose of getting more public aid?

Peter S. Smith:

No.

None of them moved here for the purpose of getting public aid Mr. Justice Black.

Two of them —

Hugo L. Black:

— resources you have with that.

Peter S. Smith:

No, I was referring to the families.

They have families here and those families could take care of their children in the case of Mrs. Harold.

She was ill with cancer and if she die, she wanted to know that there was a family here who could then take care of her children and she had a brother and a sister here and so it was important for her to move here for that reason.

William J. Brennan, Jr.:

Yes, but you also said I think that Ms. Brown, is that her name, came here because in Fort Smith, Arkansas there was not available with public housing that would be available here, is that it?

Peter S. Smith:

One of the reasons according to her affidavit, it’s proper to remove but only one reason, was that her mother left Arkansas for Oklahoma, had give up public housing so she had no place to live and so there she was, wondering what to do and it’s a very logical thing for her to come to new horizon in the District of Columbia where she have family, where she could come with her children and where she could seek a better life.

Hugo L. Black:

Unless you could get better housing.

Peter S. Smith:

I don’t suppose she knew and there’s nothing in the record which reflects that she knew what sort of housing she would get here.

She didn’t know that she have relatives here that she could stay with and of course she did for 14 months until she later found housing.

William J. Brennan, Jr.:

Well, in any event, I gather your position that it doesn’t rest on the reasons why people came here.

Peter S. Smith:

No.

Peter S. Smith:

Fundamentally, it does not but I think one of the things that seem to have troubled a number of counsels in these many cases and I think a number of judges is the gut feeling that one has that people are running around the country seeking to gain public assistance and if that really were so, I don’t suggest that constitutional issues would be different but I think one needs to recognize that that sort of underlying feeling is involved when we look at these issues and I think largely it’s not completely, it’s unsupportable.

Now, the theory of our case is equal protection.

We believe that there are two classifications here or rather a classification of two groups.

The first, anyone who has lived here more than a year and the second, anyone who has lived here less than a year and I might emphasize — Mr. Barton mentioned this fact that the district statute is quite difficult here.

As far as I know, Connecticut has the only statute that has this subclassification — the District of Pennsylvania that you’ll hear about shortly and that all of the others are just straight forward, once year residence requirements is a very clear classification.

Hugo L. Black:

And all have been seeking the same aid out of the same type of fund.

Peter S. Smith:

Are all of the — all of the parties?

Hugo L. Black:

Yes.

Peter S. Smith:

In the case of the District of Columbia one of the appellees would be seeking aid of the permanently and totally disabled that is Vera Barley, the one who resided in St. Elizabeth’s Hospital, all the others seek AFDC, Aid for Dependent Children.

In the case of Connecticut and in case of — I believe there are two appellees in Pennsylvania.

They are all seeking AFDC.

So the exception of the person who is residing in St. Elizabeth’s who of course would not be eligible for AFDC.

They are all seeking the same kind of aid.

Now, as I indicated I think the classification in the two groups is clear.

Now, this Court of course has annunciated that long ago what the applicable test for equal protection are.

In the Gulf case which we refer to in our brief and many cases since McLaughlin and so on.

The Court has indicated that a statue will violate equal protection either because of the classification itself must fall and we’re not suggesting and our theory is not bad here or if the classification does not per se unconstitutional or perhaps this may only be suspect as in the many cases.

It must be reasonably related to lawful governmental purpose and I upsize two things.

One, reasonably related and the second, a lawful purpose because as I will demonstrate shortly, it is we believe in some respects not reasonably related to some purposes and in other respects, it is reasonably related to a purpose I believe but I think that purpose is clearly unconstitutional per se so it must meet those two tests.

Now, I think the lines are fairly, clearly drawn here on the question of the approach of this Court.

Mr. Barton has conceded of course that if the Court would adjudge the statute and understand this strict scrutiny.

Now, our contention is that this case should be judged by those standards and I would not concede at all that we’re judged under any standards, it would fall because I think it’s going to be clear that they’re just on any lawful objectives at all that it has been offered or that can be drained up.

In any event, it seems clear to me that the standards that should apply here when this Court used this case are those strict standards.

Now, reference is made to First Amendment cases and a reference was made to cases involved in racial discrimination but that factor doesn’t stop there.

The Court supplied it in other areas many years ago in Skinner versus Oklahoma involving the fundamental rights appropriation did not involved racial discrimination and it did not involve the First Amendment right.

Griswold versus Connecticut although parts of it might be said to stem from emanations of the First Amendment basically, that’s not a First Amendment right.

Byron R. White:

What is that?

Peter S. Smith:

Griswold?

Well, I suppose it depends which opinion you focus on there Mr. Justice White.

Byron R. White:

That’s why I’m asking you.

Peter S. Smith:

I have intended mainly to focus on the majority of the several concurring opinions and I understand you to —

William J. Brennan, Jr.:

That take you to from the First to the Ninth Amendment.

Peter S. Smith:

That’s right.

I understand you Mr. Justice White to put it clearly on —

Byron R. White:

— I’m just wondering when you say it isn’t the First Amendment.

I wonder what you thought it was.

Peter S. Smith:

Well, I personally feel that it’s a Fifth Amendment case.

Byron R. White:

Due process.

Peter S. Smith:

I feel it is due process.

I feel abstention of liberty from what my personal —

Byron R. White:

Do you think any due process case that you want to be able to —

Peter S. Smith:

I wouldn’t go that far.

It’s obvious that this case involved peculiar situations.

The fundamental rights of merits and so on which you eluded to and which a number of the other opinions eluded to and of course Harper versus Board of Elections.

There’s language in the majority opinion in that case which squarely states that when this sort of a classification is involved, we must use a strict scrutiny.

Racial discrimination?

First Amendment?

No.

It was an equal protection case.

Now, it seems to me therefore that —

Byron R. White:

— the voting.

Peter S. Smith:

Pardon?

Byron R. White:

Voting.

Peter S. Smith:

The voting?

Byron R. White:

Right.

Peter S. Smith:

It was a voting case and that’s correct but of course that’s not a First Amendment case and it’s not another race case.

I’m simply trying to demonstrate that one cannot solve this question of strict scrutiny by merely applying the labels of the First Amendment and racial discrimination.

William J. Brennan, Jr.:

I’m not sure I know what you mean quite by strict scrutiny.

What does that mean?

Peter S. Smith:

By strict scrutiny, I mean that when this Court considers the justifications, it must look at them with great care first of all.

Peter S. Smith:

Secondly, I think the Court should be far more reluctant to some possible–

William J. Brennan, Jr.:

I thought — usually, when you’re talking with the First Amendment area, you’ll talk about justifications, terms of governmental reasons as compelling state reasons.

That’s what — are there areas where you don’t search for compelling state reasons?

Peter S. Smith:

Well, I think that’s fair characterizatio.

You search for compelling state reasons but your search perhaps starts from a different end of the spectrum when you’re dealing with the more typical, economic regulation case, you say, is there any conceivable state of facts and if the Court may think of one that even if counsel has thought of one, you set that forth.

Here, the search is just more careful, it’s more thorough and that any possible factual situation that can be suggested I believe, is not sufficient to decide the case.

Thurgood Marshall:

Do you urge the position that where there is a classification and the particular side that’s trying to get it declared constitutional is unable to give any reason for it that in such a case we could take a look?

Peter S. Smith:

Well, if as I believe — well here, there has been some purpose suggested but supposing the appellants had not suggested any purpose at all, no purpose is found in the statute or its legislative history and so all the Court is left with is the classification itself and now I’m suggesting that whether —

Thurgood Marshall:

What I mean is if it’s an obvious — everybody can see the reason for the classification then there’s no problem.

Peter S. Smith:

If everyone can see the reason for the classification, well then, one simply has to examine at that point the constitutionality of that reasoning.

Thurgood Marshall:

Now, where do you go to the other end?

That’s one end though.

What’s the other end?

Peter S. Smith:

Which —

Thurgood Marshall:

What’s the other end?

One is its obvious, the other, it’s not obvious or it’s obviously a dead classification?

Peter S. Smith:

Well, do you mean if the classification, if the justification is offered by the state?

Thurgood Marshall:

That’s right.

Peter S. Smith:

Well, if the justification is offered by the state and I think then the Court really has to do two things.

First, it obviously must examine that classification and see how it comports with the constitutional things that the state would constitutionally do.

Thurgood Marshall:

But you don’t lose your burden of showing that it’s an unreasonable classification, didn’t I understand you?

Peter S. Smith:

I don’t suggest that —

Thurgood Marshall:

You’re not trying not to talk.

Peter S. Smith:

I’m not suggesting that the burden is reversed.

I’m simply suggesting that the Court must examine very closely and should be less prone to simply justifying the statute on some ground which no party is offered because it might conceivably justify the law.

Abe Fortas:

Is Edwards against California have any bearing upon a District of Columbia problem?

Peter S. Smith:

Yes, I do — I believe it does Mr. Justice Fortas because —

Abe Fortas:

That’s not the Commerce Clause.

Peter S. Smith:

Of course the majority opinion was commerce and I think it’s clear that Congress can burden commerce or not burden commerce in that sense.

Abe Fortas:

Can Congress constitutionally enact a law saying, only so many people from each state wouldn’t be allowed to enter the District of Columbia in any period of time.

Peter S. Smith:

I would say no.

The Congress could not act such a — enact such a law not because of any lack of power that Congress has under the Commerce Clause because presumably, that’s plenary and it can either inhibit it or it can remove inhibitions but I think that Edwards cuts much further, it clearly cuts much further in the opinions of four concurring justices.

Abe Fortas:

That’s because you think — you think that the individual whom they want to end in the District of Columbia despite the quotas where it has some sort of a right to do so.

Peter S. Smith:

I think that there is a right and a corresponding limitation of power in the part of both Congress and the states in that area.

Now, I think Edwards as I was saying, obviously, in the opinions of the four concurring justices but even in the opinion of the Court cuts much deeper than merely a syllogistic commerce case.

People of commerce, the commerce is burdened.

So that’s the ball game.

There’s much law there, there’s all the discussion about —

Abe Fortas:

Don’t lose me now because I’m trying to follow you.

What is the — I want to ask you again, what is your contention with respect to your point that the individual has a right to travel as against congressional legislation as distinguished in the state legislation?

Peter S. Smith:

Well, I think that that simply must be described in terms of the national — a privilege of national citizenship of movement which this Court has discussed in numerous cases.

It’s not wholly clear exactly what provision of the Constitution that may stem from but of course in Kent in that factor and in Guest, in other cases —

Abe Fortas:

And is it your argument that that right to travel so derived or I assume that it’s so derived is a fundamental right which is entitled to sort of quasi First Amendment status.

Peter S. Smith:

Yes.

Now, it was mentioned earlier that of course it’s not in terms of First Amendment right.

We don’t suggest that it is but Mr. Justice Goldberg in that factor did refer to it as akin to the First Amendment right.

In any event, it’s obviously a very important fundamental right.

The Court has recognized that in numerous occasions.

Now, so much for —

Hugo L. Black:

You said for that reason that Congress can be without power under any circumstances to pass along regulated travel into the District of Columbia?

Peter S. Smith:

No, Mr. Justice Black, I would not say that under no circumstance, Congress would have this power — would not have this power.

Obviously, it’s going to depend on the facts.

I’m simply emphasizing that there’s a right here.

There’s a right that goes out against the Federal Government as well as the State Government and of course we’ll have to take the cases —

Potter Stewart:

As well as against private interference.

Peter S. Smith:

Exactly.

Now, I also want to call the Court’s attention briefly to the other aspect of the strict scrutiny and it’s clearly treated in our brief and that is when the disadvantaged minorities necessarily feel the brunt of a case.

Now, it’s obviously seen here as a factual matter.

Now, in —

Byron R. White:

— minority always be in the front view?

Peter S. Smith:

Some minority always is Mr. Justice White but it’s not always a minority of this character.

Now, in your concurring opinion in Griswold, I think that you —

Byron R. White:

(Voice Overlap) the minority up here —

Peter S. Smith:

Pardon.

Byron R. White:

I felt the drop in number of minority up here.

Peter S. Smith:

I’m sure you have it.

In your concurring opinion of course in Griswold, you specifically mentioned the fact of the special burden of the Connecticut law on four people who have to depend on birth control clinics and again, I’m not suggesting that the law was unconstitutional or constitutional for this reason.

I am suggesting that in terms of approach, this is a very important thing and I believe in the —

Byron R. White:

To win this — to win this case, do you?

Peter S. Smith:

Pardon.

Byron R. White:

You want me to right on this to win this case.

Peter S. Smith:

I don’t think I have to be right on this but I don’t think I have to be right on strict scrutiny at all but it obviously helps me a great deal.

Now, I think the effect of this —

Thurgood Marshall:

When it helped you, you want to be right on something though.

Peter S. Smith:

I want the Court to affirm.

In terms of the effect of the statute, of course, we detail in our brief again, the obvious effect on what we term the right to life and that’s a little bit too dramatic in most cases and I admit it probably is nonetheless in terms of family breakup, sending the children off to junior village here in the District of Columbia which was the after the Gloria Brown and Minnie Harrell.

This statute has disastrous effects quite similar I think to the sorts of rights that the Court was concerned with in Griswold for instance the fundamental importance of the family unit and as far as the effect of this case the statute has on movement and association, I want to make it quite clear that I’m not talking about that effect which may resolve when the person say in Georgia is trying to decide whether or not it will go to the District of Columbia and says, well, there’s a residence law, I guess I won’t go.

Therefore, travel is inhibited.

I’m not talking about that.

That may happen and may not happen.

I think it’s factual.

I don’t know.

What I’m talking about and I think it’s absolutely clear is that the statute imposes a penalty on a person’s movement and a person’s association because it’s saying to this person we’re denying you the statutory right of public assistance which is statutory right across the board for the particular category, solely because you’ve recently moved and also of course in two of these cases at least, the state might as well have said solely because you decide to move because you wanted to associate with your family here and so —

Thurgood Marshall:

Isn’t what the statute says, you can’t vote unless you travel here a year before.

Peter S. Smith:

In Section 2 of our brief Mr. Justice Marshall, I hope that we adequately distinguish that sort of requirement.

There are compelling justifications, the familiarity —

Thurgood Marshall:

Yes, but it’s just automatic.

Peter S. Smith:

No, it’s not just automatic.

Thurgood Marshall:

That’s what I find here.

Peter S. Smith:

And again, I tried to point out in my brief, we’re not saying that one, penalty is imposed, two, statute is unconstitutional for that reason.

Peter S. Smith:

I believe I suggest from the footnote that that might be one possible way of looking at it.

I think —

Thurgood Marshall:

I suppose the law said that this is unavailable to transit.

Peter S. Smith:

It gets us back to the discussion of who is the resident.

Now, in my view if a person is a resident —

Thurgood Marshall:

No, it gets back to who’s not a resident.

Who is not a resident?

Right.

If a person is a resident in the sense that he has come here with the present intention of staying, he is going to be getting his public assistance checked here and spending it here and he meets all the need requirements, I think that person is being discriminated if some arbitrary period is selected.

Now, in terms of someone who says, well, I just arrived in the district, I’m here for a week and next week, I’m going to California where they have even more money.

Will you give me my check now and I’ll get another one in California and I’ll use the check to pay my plane fair.”

Of course, the state can buy that because on any definition, he is not a resident.

Now, if I could just briefly turn to what I think is —

(Voice Overlap) he said he wants to live here six months and he lives in Massachusetts.

Peter S. Smith:

And he had every intention of resigning every six months, I say he should get —

(Voice Overlap) with the intent that he wants to leave right after every each year.

Peter S. Smith:

I think he is a resident here and he ought to get the money and incidentally, HEW would require that because under HEW regulations, they require the states to construe residence.

Which state would you require to take?

Peter S. Smith:

I require the District of Columbia to pay it while he is here and I require the other state to pay it while he is residing there and I’d require some other state to pay it if he then decides that he prefers to live in Maine.

Now, if I could briefly turn to what I think is the critical and really clenching point in this case and that is the justifications and I think it’s well to point out initially that when you’re talking about justifications and searching for purposes, this Court has said on numerous occasions on Allied Stores versus Bowers, Mr. Justice Brennan’s concurring opinion and Mr. Justice Douglas’ dissenting opinion in Martin v. Walton, Mr. Justice White’s concurring opinion in Griswold.

When a purpose is offered up by the state, by the legislative history or by departing defending the law, that’s what you look at and after all, that’s only reasonable because that is really the purpose why the law was passed for the Court to consider some completely different purpose and uphold the law on that basis within some respects, required the Court to consider matters of legislative wisdom and so on, which the legislature never has in which presumably legislators should do.

Now the purpose is there’s no secret about the purposes here.

They’ve been offered up and I might say that there’s almost been some gamesmanship around the country in the last six months as you know in numerable cases that have been brought.

Who can think of a purpose to defend their law that is not unconstitutional under the Edwards case?

And several had been served up.

Now, the one which, although there is no legislative history on the matter for the reasons we suggested in our brief of the one that is obviously I think the purpose of this law.

The basis for passing this law is the old settlement concept which changes somewhat in this country and became residents and I think the fact that there isn’t any legislative history and we trace it back to the first time it seemed to have come in into the district in an AFDC in 1926.

It’s because this is just the way it’s always been and this matter of the history has been very carefully treated in the amicus brief filed here by Center on Social Welfare Policy and Law in their first appendix.

Now, this purpose is asserted by the state and it really — there are two branches of it but I think it boils down the same thing.

One, you keep out paupers and the other you save money and of course you don’t do the first just for the devil of it.

Peter S. Smith:

You do it because you’re interested and not having to take care of these people.

And I think one that that’s just been settled by Edwards.

I think this Court has said that that’s just not a legitimate consideration for the state.

It simply cannot serve that up.

California had far more problems back in the 30s as the Court acknowledged in its opinion and I’m sure Washington DC has.

But you just can’t offer that and furthermore as we pointed out, it’s extremely speculative.

In fact the District Court founds a fact that it’s just wasn’t so.

All of the evidence that was marshaled by either side in the court below and the Court here, I think quite decisively shows that there’s no problem along this line in any event in terms of people migrating so they want to get money.

Now, the second point which the Court made or rather the appellant made here to justify is this argument of an objective test of residence.

Our answer to that is it’s not unconstitutional per se such as the objectives in terms of Edwards but it’s unconstitutional because it sweeps far too broadly and when basic rights were involved, the Court has simply — the state is simply going to have to find something that’s a little more specific and deals with the specific problem in terms of funding residence and I don’t think there’s any difficulty in finding residents.

After all, anyone here replies entries being here more than a year to undergo some routine check and he says that he’s a resident but presumably the state has to check that out too and they all get their checks within a month as they required to —

Thurgood Marshall:

Would you take the state’s definition of residence?

Why wouldn’t you accept the state law defining what residence is for state purposes?

Peter S. Smith:

Well, I would accept the state’s definition of residence so long as our definition was constitutional.

Now, we pointed to a number of cases in our brief in which residence in the district for me isn’t what they’re serving up here, it’s not an objective test which must be one year.

You have to pay taxes if you’ve been here on the 31st of the year and you’re a resident for all sorts of purposes.

In fact the highest court of District of Columbia in an opinion which we cite in our case.

Thurgood Marshall:

But you say that you would accept residence in the District of Columbia, what would you accept?

Peter S. Smith:

What I would accept is —

Thurgood Marshall:

Is there anything — any law in the District of Columbia defining residence for any purpose that you would accept here or if not, what do you think it is?

Peter S. Smith:

Well, what I accept on the judicial —

Thurgood Marshall:

I don’t understand why you’re talking about residence anyway?

Peter S. Smith:

I accept — what I accept are the judicial opinions of the District of Columbia Court of Appeals which define residence generally as varies from case to case but generally a person who is physically here and has an intention to remain.

Now, if a state had a general law which said nobody in the state for any purposes a resident unless he’s been here a year, I think that would be open to constitutional attack in a case such as this where that’s the only reason why a person does not get benefits.

So I don’t think and I also want to just refer the Court to its opinion in Harman versus Forssenius, the Virginia toll tax case which I think is clearly this positive of using objective test of residence in this sense because that’s what Virginia was saying.

We want to use this just to determine objective test of residence and the Court referred to that as a remote administrative benefit which wasn’t go in to get in the way of constitutional rights.

Now, the only other purpose that has served up is really not a purpose at all but one which says you don’t have to have any purpose and that’s this right privilege argument that’s a fortuity and so the Court can sort of look at anyway it wants, it doesn’t have to have a purpose and I think that’s just been thoroughly rejected by Sherbert versus Verner and it’s just foreclosed here.

There are other purposes that had been offered not in this case and therefore I don’t think the Court can look at it and I believe that those are treated particularly in Pennsylvania’s brief that we also mentioned.

Therefore, I urge that the decision of the court below be reversed.

Earl Warren:

Mr. Barton, you have few moments.

Earl Warren:

You may begin.

Richard W. Barton:

Getting back just a moment to the standard which should be applicable here, I think the case of Nestor versus Flemming is the closest case that we have in this Court to the problem presented here.

We discussed and rely upon in our brief that’s relegated to a Footnote in the appellee’s brief.

Their argument is that that was decided way back in 1960.

It’s per se now it’s on law.

You can’t pay any attention to it nowadays.

There’s too much happened since then.

Flemming versus Nestor dealt with a provision of the Social Security Act which cut off assistance benefits to any person who is deported.

Now, the fund from which the payments were made there was one into which the applicant had paid funds.

It’s unlike the situation here where you have a pure fortuity, the person had, well something close to a contractual interest in these funds.

The Court nevertheless said, particularly when we deal with a withholding of a non-contractual benefit under a social welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifest patently arbitrary classification, utterly lacking in rational justification.

Now, that is the standard which we ask the Court to apply to this legislation.

Hugo L. Black:

What case was that?

Richard W. Barton:

That is Flemming versus Nestor.

My time is up.

Thank you Your Honors.

Earl Warren:

Number 1138, Roger A. Reynolds et al., appellants versus Juanita Smith et al. Attorney General Sennett.

William C. Sennett:

Mr. Chief Justice, preliminarily may I move the admission of Mr. Thomas Gilhool, counsel for appellee in this case pro hac vice for purposes of argument in this case.

Earl Warren:

Mr. Gilhool might be admitted for that purposes.

William C. Sennett:

Mr. Chief Justice and may it please the Court.

This is the third case similar to the other two which this Court has already heard with reference to the residency requirements of the states in public assistance matters.

The case — the statute in Pennsylvania is basically similar to the statute in the District of Columbia and may I preliminarily point out to this Court as has been indicated previously today that the United States Congress and the legislatures from some 46 states as specifically provided for residency requirements in public assistance matters.

The United States Congress in the legislation which enacted the Social Security law allows residency requirement to be enacted by the states of up to one year in duration.

Relying upon that, the general assembly of Pennsylvania and the legislatures of some 45 other states have determined in their judgment that a residency requirement is proper in public assistance statute.

The residency requirement in Pennsylvania, applies to all types of public assistance and welfare benefits with the following exceptions and I believe that these exceptions are important.

First of all, under the recently enacted medical assistance program, the United States Congress has provided that there shall be no residency requirement and therefore under the medical assistance program in Pennsylvania, Pennsylvania does not have a residency requirement.

Likewise, Pennsylvania does not have a residency requirement with reference to children who may receive aid and this is in the record from county state reimbursement, children who are dependent, neglected or delinquent and those children for example plaintiffs in this case could have — plaintiffs will happen to be the minor children, the Court have received assistance in Pennsylvania through the County Board of Assistance in Philadelphia without any residency requirement.

Likewise, plaintiffs in this case could have received medical assistance in Pennsylvania under both the federal and state program.

Now —

Earl Warren:

What do you do with people who are in your state and are indigent and are ill or otherwise incapacitated from making their living?

William C. Sennett:

Well, if it’s —

Earl Warren:

But don’t have residence yet according to your law.

William C. Sennett:

There are — first of all, under Pennsylvania assistance regulations, Pennsylvania has entered into reciprocal agreements with some 18 other states which would allow us to provide benefits for people from those other states who are not residents of Pennsylvania.

Earl Warren:

How about the other 32 states?

William C. Sennett:

With reference to those, we will make arrangements for immediate payments to them in order to allow them to return to where they have come from, plane tickets or subsidence while they remain in Pennsylvania subject of course to their leaving under the arrangements which the Department of Public Welfare will make for them.

Earl Warren:

And suppose they don’t want to leave.

William C. Sennett:

Well, in the event that they don’t of course don’t want to leave, they do run a file of the residency requirement although the counties in Pennsylvania, individual counties of course would have the ability to provide benefits for them in county homes because the primary responsibility is on the county.

Earl Warren:

You do have programs of that kind.

William C. Sennett:

That’s correct.

That’s correct Mr. Chief Justice.

Thurgood Marshall:

Suppose they’re physically unable to go home.

William C. Sennett:

If they’re physically unable to go home, I believe they would qualify for medical assistance and would be able to be sustained under that particular program.

Thurgood Marshall:

You believe.

William C. Sennett:

Yes Mr. Justice Marshall.

I also would wish to make the argument which has been made here today that the standard which this Court must apply in this particular type of case is a standard which the Court has set forth in the McGowan opinion and that is that unless the classification is entirely unreasonable, entirely arbitrary and capricious, it shall be sustained.

Now, I believe there are sufficient reasons and justifications for the general assembly of Pennsylvania to enact the statute and I submit to the Court that they would be these.

First of all, and of course the standard is under any set of circumstances or foreseeable facts, is this type of distinction reasonable?

I believe that the purposes which the General Assembly would have in enacting this type of legislation and which this Court could find would first of all be the fiscal purpose and that is to preserve in a general way the soundness of the program against unforeseen events not and I do not admit that the purpose of this statute or the purpose of our public assistance policy in Pennsylvania is to keep indigents out of Pennsylvania because first of all, they can travel in as they have in this particular case.

Secondly, they can receive other benefits as I have described to this Court and also, because Pennsylvania has entered into the type of reciprocal arrangements with some 18 other states to provide benefits for them.

Abe Fortas:

Excuse me Mr. Attorney General but I’m a little confused about this county welfare payments.

Are they welfare payments or do they provide for residence of the indigent in the county home?

William C. Sennett:

That’s correct.

Abe Fortas:

Your county — there is no provision for the county to make welfare payments.

William C. Sennett:

That’s right.

It’s not welfare payments per se but its residence.

It would be food that would be other necessities like that, clothing and shelter.

Abe Fortas:

In the county what usually called for houses.

William C. Sennett:

Well, it used to be called for houses, they’re not classified as being county homes and of course Pennsylvania has a modern program in that particular respect.

Thurgood Marshall:

Mr. Attorney General, you mentioned the unforeseen possibilities.

You’re not looking forward to marching Harrisburg are you?

William C. Sennett:

I think that the General Assembly in determining that it will maintain a sound — a fiscally sound program can in its judgment and in its wisdom protect against unforeseen events which would put a great mass or people into Pennsylvania at any particular time for whatever purpose and they would then become — they would then be available for this public assistance benefits, yes.

Thurgood Marshall:

Like?

Give me a situation.

William C. Sennett:

Suppose that —

Thurgood Marshall:

Because the reason I have here would be unforeseen covers everything.

William C. Sennett:

Suppose a natural disaster were to strike a neighboring city or neighboring — a city and neighboring state and a million of people have to come in to Pennsylvania.

I think in those circumstances, the paramount responsibility would be on the Federal Government and not on the State of Pennsylvania to provide.

Thurgood Marshall:

Exactly.

And Pennsylvania wouldn’t be called on.

As a matter of fact, Pennsylvania would be yelling with the other states but just ask to relief.

William C. Sennett:

But if this type of legislation that is struck down in Pennsylvania would be called upon to provide that type of relief.

Thurgood Marshall:

And the Federal Government will be excused?

William C. Sennett:

Well, I would hope they would not be excused but nevertheless —

Thurgood Marshall:

You hope.

William C. Sennett:

But nevertheless, the responsibility would be there for Pennsylvania to do this.

Thurgood Marshall:

Well, we’re going to have to guard in that that’s went on proceeding.

That’s a good one.You’ve got anymore?

William C. Sennett:

Well, I think any type of disaster or for other reason that a great number of people would move from one place to another and I think that there can be many but that’s only the first reason which I base the — in which I think that the General Assembly of Pennsylvania have seen fit to pass this type of statute.

The second is —

Hugo L. Black:

Does the Federal Government exhibit any part of your regular aid of this kind?

William C. Sennett:

You mean to county assistance?

Hugo L. Black:

Does the Federal Government assist the state or the county?

William C. Sennett:

As far as our county assistance program?

Hugo L. Black:

In paying theses aids or assistance.

William C. Sennett:

Oh yes.

Hugo L. Black:

What percentage does it give?

William C. Sennett:

50% basically.

Hugo L. Black:

Why do you think it does that?

William C. Sennett:

It does that because of the consideration which the Federal Government has to see that the states do adopt this type of a program to care for residence of the state.

Hugo L. Black:

Does it give that to every state?

William C. Sennett:

Every state that has a program.

Hugo L. Black:

Do all of them have the program?

William C. Sennett:

Basically, all of them I believe have them.

I’m not sure of that Mr. Justice Black.

Hugo L. Black:

We suppose that had anything to do with trying to take care of the floating people that move from state to state.

William C. Sennett:

I believe it did.

The second justification or reason behind this type of a residency requirement is that it serves a predictive purpose as the opinion of Judge Colodner in a companion case Wagner versus Rosen which is another three-judge court in Pennsylvania and that opinion upheld the constitutionality of this particular statute.

Judge Colodner wrote that this type of a statute is necessary because it serves a predictive purpose.

In other words, Pennsylvania as to all of the states operate on rather strict budgets we have in Pennsylvania a budget to upright the state government of approximately $2 billion.

Of that $2 billion, some $200 million are paid in welfare in this type of payment, assistance payments.

Now certainly, the general assembly in limiting it to residents who have been there within a year has a genuine concern about the budget under which the General Assembly must operate and these payments must be made over the course of the next year so that the statute does serve a predictive purpose to that extent.

Thirdly, as a policy decision I submit.

As a policy decision, a state can require participation in the community prior to its dispensing welfare programs because we — I don’t think anyone would dispute the fact that the Commonwealth or any state does not have to set up a welfare program.

And I submit that as a matter of policy the General Assembly can require participation in the state prior to dispensing welfare benefits.

Of course in Pennsylvania we have a great many residency requirements.

We do not allow for example county officers to become country officers unless they have been a resident for one year prior to an appointment.

We do not allow citizens to vote in Pennsylvania unless they have been a resident for 90 days.

We do not allow a citizen to maintain or commence a divorced action in the Commonwealth of Pennsylvania unless he has been a resident for one year preceding the petition.

And we have other similar type of residency requirements, compensation and pension of that —

Thurgood Marshall:

General, what did you say the requirement for voting, 90 days?

William C. Sennett:

90 days.

A citizen of the United States for at least one month resided in the state 90 days and in the election district for 60 days.

Thurgood Marshall:

You think that it was giving a home relief is more important than voting?

William C. Sennett:

I think that the answer to that is this, that it is a matter for the General Assembly, for the legislature to determine as to what the length of residency should be in all of these various available programs for benefits.

Thurgood Marshall:

But you said you wanted the people to be a part of the community.

I think that a voter is the most important part of a citizen.

William C. Sennett:

A voter is and that’s maybe one of the reasons why the time is only 90 days in Pennsylvania where —

Thurgood Marshall:

You want to take a chance on and let them vote but you’re not willing to let them take a chance on accepting your money, isn’t that it?

William C. Sennett:

Of course, that’s what the — that’s what the General Assembly has determined.

Earl Warren:

We’ll recess now, Mr. Attorney General.