Durational Residency Requirements

The Right to Travel

The doctrine of the "right to travel" actually encompasses three separate rights, of which two have been notable for the uncertainty of their textual support. The first is the right of a citizen to move freely between states, a right venerable for its longevity, but still lacking a clear doctrinal basis.1858 The second, expressly addressed by the first sentence of Article IV, provides a citizen of one State who is temporarily visiting another state the "Privileges and Immunities" of a citizen of the latter state.1859 The third is the right of a new arrival to a state, who establishes citizenship in that state, to enjoy the same rights and benefits as other state citizens. This right is most often invoked in challenges to durational residency requirements, which require that persons reside in a state for a specified period of time before taking advantage of the benefits of that state's citizenship.

1858 Saenz v. Roe, 526 U.S. 489 (1999). "For the purposes of this case, we need not identify the source of [the right to travel] in the text of the Constitution. The right of free ingress and regress to and from' neighboring states which was expressly mentioned in the text of the Article of Confederation, may simply have been conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created."' Id. at 501 (citations omitted).

1859 Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1868) ("without some provision . . . removing from citizens of each State the disabilities of alienage in other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.").

Durational Residency Requirements.—Challenges to durational residency requirements have traditionally been made under the Equal Protection Clause of the Fourteenth Amendment. In 1999, however, a majority of the Supreme Court approved a doctrinal shift, so that state laws which distinguished between their own citizens based on how long they had been in the state would be evaluated instead under the Privileges or Immunities Clause of the Fourteenth Amendment.1860 The Court did not, however, question the continuing efficacy of the earlier cases.

A durational residency requirement creates two classes of persons: those who have been within the State for the prescribed period and those who have not been.1861 But persons who have moved recently, at least from State to State,1862 have exercised a right protected by the Constitution of the United States, and the durational residency classification either deters the exercise of the right or penalizes those who have exercised the right.1863 Any such classification is invalid "unless shown to be necessary to promote a compelling governmental interest."1864 The constitutional right to travel has long been recognized,1865 but it is only relatively recently that the strict standard of equal protection review has been applied to nullify those durational residency provisions which have been brought before the Court.

1860 Saenz v. Roe, 526 U.S. 489, 502-03 (1999).

1861 Dunn v. Blumstein, 405 U.S. 330, 334 (1972). Inasmuch as the right to travel is implicated by state distinctions between residents and nonresidents, the relevant constitutional provision is the privileges and immunities clause, Article IV, § 2, cl. 1.

1862 Intrastate travel is protected to the extent that the classification fails to meet equal protection standards in some respect. Compare Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970) (three-judge court), aff'd. per curiam, 405 U.S. 1035 (1972), with Arlington County Bd. v. Richards, 434 U.S. 5 (1977). The same principle applies in the commerce clause cases, in which discrimination may run against in-state as well as out-of-state concerns. Cf. Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951).

1863 Shapiro v. Thompson, 394 U.S. 618, 629-31, 638 (1969); Dunn v. Blumstein, 405 U.S. 330, 338-42 (1972); Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974); Jones v. Helms, 452 U.S. 412, 420-21 (1981). See also Oregon v. Mitchell, 400 U.S. 112, 236-39 (1970) (Justices Brennan, White, and Marshall), and id. at 285-92 (Justices Stewart and Blackmun and Chief Justice Burger).

1864 Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (emphasis by Court); Graham v. Richardson, 403 U.S. 365, 375-76 (1971).

1865 Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868); Edwards v. California, 314 U.S. 160 (1941) (both cases in context of direct restrictions on travel). The source of the right to travel and the reasons for reliance on the equal protection clause are questions puzzled over and unresolved by the Court. United States v. Guest, 383 U.S. 745, 758, 759 (1966), and id. at 763-64 (Justice Harlan concurring and dissenting), id. at 777 n.3 (Justice Brennan concurring and dissenting); Shapiro v. Thompson, 394 U.S. 618, 629-31 (1969), and id. at 671 (Justice Harlan dissenting); San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 31-32 (1973); Jones v. Helms, 452 U.S. 412, 417-19 (1981); Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at 66-68 (Justice Brennan concurring), 78-81 (Justice O'Connor concurring).

Thus, in Shapiro v. Thompson,1866 durational residency requirements conditioning eligibility for welfare assistance on one year's residence in the State1867 were voided. If the purpose of the requirements was to inhibit migration by needy persons into the State or to bar the entry of those who came from low-paying States to higher-paying ones in order to collect greater benefits, the Court said, the purpose was impermissible.1868 If on the other hand the purpose was to serve certain administrative and related governmental objectives—the facilitation of the planning of budgets, the provision of an objective test of residency, minimization of opportunity for fraud, and encouragement of early entry of new residents into the labor force—the requirements were rationally related to the purpose but they were not compelling enough to justify a classification which infringed on a fundamental interest.1869 Similarly, in Dunn v. Blumstein,1870 where the durational residency requirements denied the franchise to newcomers, the assertion of such administrative justifications was constitutionally insufficient to justify the classification. The Privileges or Immunities Clause of the Fourteenth Amendment was the basis for striking down a California law which limited welfare benefits for California citizens who had resided in the state for less than a year to the level ifof benefits which they would have received in the State of their prior residence.1871

1866 394 U.S. 618 (1969).

1867 The durational residency provision established by Congress for the District of Columbia was also voided. 394 U.S. at 641-42.

1868 394 U.S. at 627-33. Gaddis v. Wyman, 304 F. Supp. 717 (N.D.N.Y. 1969), aff'd sub nom. Wyman v. Bowens, 397 U.S. 49 (1970), struck down a provision construed so as to bar only persons who came into the State solely to obtain welfare assistance.

1869 394 U.S. at 633-38. Shapiro was reaffirmed in Graham v. Richardson, 403 U.S. 365 (1971) (striking down durational residency requirements for aliens applying for welfare assistance), and in Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974) (voiding requirement of one year's residency in county as condition to indigent's receiving nonemergency hospitalization or medical care at county's expense). When Connecticut and New York reinstituted the requirements, pleading a financial emergency as the compelling state interest, they were summarily rebuffed. Rivera v. Dunn, 329 F. Supp. 554 (D. Conn. 1971), aff'd per curiam, 404 U.S. 1054 (1972); Lopez v. Wyman, Civ. No. 1971-308 (W.D.N.Y. 1971), aff'd per curiam, 404 U.S. 1055 (1972). The source of the funds, state or federal, is irrelevant to application of the principle. Pease v. Hansen, 404 U.S. 70 (1971).

1870 405 U.S. 330 (1972). But see Marston v. Lewis, 410 U.S. 679 (1973), and Burns v. Fortson, 410 U.S. 686 (1973). Durational residency requirements of five and seven years respectively for candidates for elective office were sustained in Kanapaux v. Ellisor, 419 U.S. 891 (1974), and Sununu v. Stark, 420 U.S. 958 (1975).

1871 Saenz v. Roe, 526 U.S. 489, 505 (1999).

However, a state one-year durational residency requirement for the initiation of a divorce proceeding was sustained in Sosna v. Iowa.1872 While it is not clear what the precise basis of the ruling is, it appears that the Court found that the State's interest in requiring that those who seek a divorce from its courts be genuinely attached to the State and its desire to insulate divorce decrees from the likelihood of collateral attack justified the requirement.1873 Similarly, durational residency requirements for lower in-state tuition at public colleges have been held constitutionally justifiable, again, however, without a clear statement of reason.1874 More recently, the Court has attempted to clarify these cases by distinguishing situations where a state citizen is likely to "consume" benefits within a state's borders (such as the provision of welfare) from those where citizens of other states are likely to establish residency just long enough to acquire some portable benefit, and then return to their original domicile to enjoy them (such as obtaining a divorce decree or paying the in-state tuition rate for a college education).1875

A state scheme for returning to its residents a portion of the income earned from the vast oil deposits discovered within Alaska foundered upon the formula for allocating the dividends; that is, each adult resident received one unit of return for each year of residency subsequent to 1959, the first year of Alaska's statehood. The law thus created fixed, permanent distinctions between an ever-increasing number of classes of bona fide residents based on how long they had been in the State. The differences between the durational residency cases previously decided did not alter the bearing of the right to travel principle upon the distribution scheme, but the Court's decision went off on the absence of any permissible purpose underlying the apportionment classification and it thus failed even the rational basis test.1876

1872 419 U.S. 393 (1975). Justices Marshall and Brennan dissented on the merits. Id. at 418.

1873 419 U.S. at 409. But the Court also indicated that the plaintiff was not absolutely barred from the state courts, but merely required to wait for access (which was true in the prior cases as well and there held immaterial), and that possibly the state interests in marriage and divorce were more exclusive and thus more immune from federal constitutional attack than were the matters at issue in the previous cases. The Court also did not indicate whether it was using strict or traditional scrutiny.

1874 Starns v. Malkerson, 326 F. Supp. 234 (D.Minn. 1970), aff'd per curiam, 401 U.S. 985 (1971). Cf. Vlandis v. Kline, 412 U.S. 441, 452 & n.9 (1973), and id. at 456, 464, 467 (dicta). In Memorial Hospital v. Maricopa County, 415 U.S. 250, 256 (1974), the Court, noting the results, stated that "some waiting periods . . . may not be penalties" and thus would be valid.

1875 Saenz v. Roe, 526 U.S. at 505 (1999).

1876 Zobel v. Williams, 457 U.S. 55 (1982). Somewhat similar was the Court's invalidation on equal protection grounds of a veterans preference for state employment limited to persons who were state residents when they entered military service; four Justices also thought the preference penalized the right to travel. Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986).

Unresolved still are issues such as durational residency requirements for occupational licenses and other purposes.1877 Too, it should be noted that this line of cases does not apply to state residency requirements themselves, as distinguished from durational provisions,1878 and the cases do not inhibit the States when, having reasons for doing so, they bar travel by certain persons.1879

1877 La Tourette v. McMaster, 248 U.S. 465 (1919), upholding a two-year residence requirement to become an insurance broker, must be considered of questionable validity. Durational periods for admission to the practice of law or medicine or other professions have evoked differing responses by lower courts.

1878 E.g., McCarthy v. Philadelphia Civil Service Comm'n, 424 U.S. 645 (1976) (ordinance requiring city employees to be and to remain city residents upheld). See Memorial Hospital v. Maricopa County, 415 U.S. 250, 255 (1974). See also Martinez v. Bynum, 461 U.S. 321 (1983) (bona fide residency requirement for free tuition to public schools).

1879 Jones v. Helms, 452 U.S. 412 (1981) (statute made it a misdemeanor to abandon a dependent child but a felony to commit the offense and then leave the State).

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