Carter v. Gallagher

• Decision Date: 06 August 1971
• Docket Number: No. 4-70-Civ. 399.,4-70-Civ. 399.
• Citation: 337 F. Supp. 626
• Parties: Gerald CARTER et al., Plaintiffs, v. Hugh GALLAGHER et al., Defendants.
• Court: U.S. District Court — District of Minnesota

337 F. Supp. 626

Gerald CARTER et al., Plaintiffs, v. Hugh GALLAGHER et al., Defendants.

No. 4-70-Civ. 399.

United States District Court, D. Minnesota, Fourth Division.

August 6, 1971.

Luther A. Granquist, Smith, Marino & Becker, Legal Aid Society, Inc., Minneapolis, Minn., for plaintiffs.

Keith Stidd, City Atty., Arvid Falk, Asst. City Atty., Minneapolis, Minn., for defendants.

MEMORANDUM DECISION

LARSON, District Judge.

The plaintiffs originally brought this action seeking injunctive and declaratory relief in regard to the durational residency requirement contained in the definition of veteran found in the definition subdivision of the Minnesota veterans preference statute. Minn.Stat. § 197.45(1). Plaintiffs brought the action as a class suit. They maintained that the State and local durational residency requirements were unconstitutional as violative of the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States.

Pursuant to 28 U.S.C. 2281, a Three Judge Court was convened to hear the case. After submission of briefs and oral argument, the Three Judge Court determined that the controversy was not yet ripe for equitable relief. The Three Judge Court was accordingly dissolved and the declaratory judgment action was returned to a single judge for disposition. It is in this posture that this Court addresses the controversy.

The statutory provision in question provides that a veteran is defined as any person honorably discharged from any branch of the Armed Services after December 7, 1941, who is a United States citizen "and has been a resident of the State of Minnesota and of the county, city, town, village, school district, or political subdivision thereof to which application is made for five years immediately preceding his application, or who enlisted from the State of Minnesota."

The effect of the provision is to create three classes of veterans. One class consists of all those veterans who entered the service from Minnesota. The other two classes are made up of those veterans who are honorably discharged or separated from the service, who actually are residents of Minnesota but who did not enlist in the Armed Services from Minnesota. One group consists of those who have lived in both Minnesota and the local subdivision in which they are applying for at least five years. The other group is made up of those resident veterans who have not lived for five years in Minnesota and/or the local subdivision in which they are applying for a job. This latter class, the representative class in the class action, is not entitled to claim veterans preference. The former two are.

Plaintiffs argue that the durational residency provision in the definition of veteran that creates this unequal treatment of otherwise equally qualified veterans imposes a penalty upon the exercise of the constitutionally protected right to interstate travel without serving any compelling State interest. Hence it must be declared unconstitutional.

This Court must deal with four basic issues:

1. First of all, the threshold question of severability must be considered. This Court must ascertain whether the portions of the statute attacked as unconstitutional can be carved out of the entirety of the statute without affecting its operation as a whole.

2. Secondly, there is a dispute over the applicable constitutional standard to be applied. This Court must determine whether plaintiffs must show that the contested provision was designed to discourage or has a deterrent effect upon the exercise of a fundamental right, or, as plaintiffs maintain, that they must merely show that the statute imposes a penalty upon the exercise of the fundamental right—in this case the right being the alleged right to interstate travel.

3. In the event that issue is favorably resolved for plaintiffs, there must then be an examination of whether the statute imposes a penalty upon such a fundamental right.

4. If it is determined that there is such a penalty, an examination must be made to determine whether it is justified by a compelling State interest.

SEVERABILITY

Unless it is clear that the provisions not under attack in this case would not have been enacted separately from those sought to be declared unconstitutional, this Court may delete the invalid portions if the valid portions remaining will be fully operative as a law. Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 76 L.Ed. 1062 (1910); United States v. Jackson, 390 U.S. 570, 585, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). It is evident to this Court that applying such a standard to the instant case compels the conclusion that the portion of the statute under constitutional attack can be severed from the other portions of the Act.

The veterans preference law previously limited the preference to citizens and residents of the State. Mason's Minn. Stat. § 4368 (1927). The five year durational residency requirement was added by the legislature in 1937. Minn. Laws Ch. 121, § 1 (1937). The language "have been residents of the State of Minnesota five years immediately preceding their application, or enlisted from the State of Minnesota" was the only language added to the statute at that time. The law clearly pre-existed the five year residency requirement. It would be absurd under such circumstances to assert that it would not have been enacted without the five year durational provision because it very clearly was.

Furthermore, there was enacted in 1937 a special severability clause, chapter 121 § 3 (1937), which provided:

"The amendatory matter constituting this Act shall be considered severable from the original act amended and if found invalid shall not render Section 4368 invalid."

Since the only amendment in 1937 was the five year durational residency requirement, it is rather self-evident to which portion of the Act the severability provision applied. Although a similar severability clause was not included in the 1943 amendments to the Act, it should be noted that two years previously the Legislature had enacted a general severability provision. Minn.Laws Ch. 492 § 20 (1941). (Minn.Stat. § 645.20). Its passage evidences an intent that all legislation subsequent to 1941 be governed by the separability provisions contained therein. That provision, which incorporated substantially the same standards as existed in prior Minnesota case law (See Lodoen v. City of Warren, 146 Minn. 181, at 186, 178 N.W. 741 (1920), and cases cited therein), reads as follows:

"645.20 Construction of severable provisions

Unless there is a provision in the law that the provisions shall not be severable, the provisions of all laws shall be severable. If any provision of a law is found to be unconstitutional and void, the remaining provisions of the law shall remain valid, unless the court finds the valid provisions of the law are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the legislature would have enacted the remaining valid provisions without the void one; or unless the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent."

The thrust of the severability provision is a presumption that the invalid portions are severable. The presumption is overcome by a finding that "the valid provisions of the law are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the legislature would have enacted the remaining valid provisions without the void one." This is in essence the same test as the one set forth by the United States Supreme Court. (Supra.) As was previously pointed out, there is absolutely no reason to assume that the durational residency requirement added in 1937 is so essentially tied to the prior provisions that it cannot be severed. The preference provisions pre-existed the durational residency requirement added in 1937. Furthermore, the inclusion of a special severability clause with the 1937 amendment indicates legislative provision for continued efficacy of the Act without the durational residency requirement.

Must Plaintiff Demonstrate Deterrent Intent Toward or Actual Effect on Fundamental Right, or is it Sufficient that the Residency Provision Merely Impose a Penalty on the Exercise of the Right?

There is sharp disagreement between plaintiffs and defendants on the constitutional test to be applied. The test ordinarily applied is whether or not the distinction made bears a rational relationship to the accomplishment of a permissible objective. See Turner v. Fouche, 396 U.S. 346, 362, 90 S.Ct. 532, 24 L.Ed. 567 (1970); McGowan v. Maryland, 366 U.S. 420, 425-426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). However where the right involved is a fundamental personal right, the rational relationship test is not the appropriate test to apply. The State must, under such circumstances, show that the distinction promotes a compelling State interest. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

The Court in Shapiro said:

"At the outset, we reject appellants' argument that a mere showing of a rational relationship between the waiting period and these four admittedly permissible state objectives will suffice to justify the classification. The waiting-period provision denies welfare benefits to otherwise eligible applicants solely because they have recently moved into the jurisdiction. But in moving from State to State or to the District of Columbia appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a COMPELLING governmental interest, is unconstitutional." 394 U.S. at 634, 89 S.Ct. at 1331. (Emphasis in the original.)

Accord: Cole v. Housing Authority of City of...