Barnes v. Board of Trustees, Michigan Veterans Trust Fund

• Decision Date: 21 December 1973
• Docket Number: No. G-166-71 C.A.,G-166-71 C.A.
• Citation: 369 F. Supp. 1327
• Parties: Donald BARNES, Individually and on behalf of all other persons similarly situated, Plaintiff, Albert Boyd, Individually and on behalf of all other persons similarly situated, Plaintiff-Intervenor, v. BOARD OF TRUSTEES, MICHIGAN VETERANS TRUST FUND, Governmental Body of the State of Michigan Created Pursuant to MSA 4.1064 et seq., Defendants.
• Court: U.S. District Court — Western District of Michigan

369 F. Supp. 1327

Donald BARNES, Individually and on behalf of all other persons similarly situated, Plaintiff Albert Boyd, Individually and on behalf of all other persons similarly situated, Plaintiff-Intervenor, v. BOARD OF TRUSTEES, MICHIGAN VETERANS TRUST FUND, Governmental Body of the State of Michigan Created Pursuant to MSA 4.1064 et seq., Defendants.

No. G-166-71 C.A.

United States District Court, W. D. Michigan, S. D.

December 21, 1973.

William L. Coash, Battle Creek, Mich., for plaintiff.

Rod McGillis, Asst. Atty. Gen., Lansing, Mich., for defendants.

Before PHILLIPS, Chief Circuit Judge,^* FOX, Chief District Judge, and ENGEL, District Judge.

OPINION AND ORDER

FOX, J.

This suit is a challenge to the constitutionality of a durational residency requirement. This requirement is set forth in M.C.L.A. § 35.602, and it specifies that a person must be a resident of Michigan for five years to qualify for aid from the Michigan Veterans Trust Fund. That Fund is a state fund established by M.C.L.A. § 35.601. The plaintiffs ask that the Fund's durational residency requirement be declared unconstitutional and that an injunction be entered restraining the enforcement of this requirement.

This court's jurisdiction is based on 28 U.S.C.A. § 1343(3) and this suit is authorized by 42 U.S.C.A. § 1983. This three-judge court was convened pursuant to 28 U.S.C.A. § 2281 and § 2284.

Presently before the court are several motions. The plaintiffs have submitted a motion to strike one of the defendant's affidavits, a motion that this suit be declared a class action, and a motion for summary judgment. The defendant has submitted a motion for dismissal and a motion for summary judgment.

DURATIONAL RESIDENCY

From the pleadings and affidavits it appears that Mr. Barnes served in the United States Air Force from 1958 to August 23, 1968, and that he received an honorable discharge from the Air Force on August 23, 1968. Mr. Barnes is married, and is the sole support of his wife and five children. At the time this suit was filed he had been unemployed for approximately one year and his family's sole source of income was the Aid to Dependent Children of the Unemployed program, as he had exhausted his unemployment insurance benefits. He alleges that the grant from this program was not sufficient to meet all his family's needs.

In particular, he was delinquent in his payments under the land contract covering his home. Therefore, in May 1971 he applied to the Michigan Veterans Trust Fund for aid. This application was denied for the sole reason that he had not been a Michigan resident for the required five years. Following this rejection of his application a new land contract was executed. This occurred on July 7, 1971, and this contract has never been in default. On July 12, 1971, Mr. Barnes filed this lawsuit and on July 19, 1971, he was recalled by his former employer.

From the pleadings and affidavits it appears that Mr. Boyd served in the United States Army from December 16, 1942 to October 23, 1943, and that he received an honorable discharge on October 23, 1943. He moved to Michigan in 1969 and he is a resident of Michigan. He further alleges that he lives in a rented home with his wife and ten children.

On June 13, 1972, he was served with a 30-day notice to quit. Subsequently, on July 24, 1972, Mr. Boyd and his wife signed a sales agreement covering this home. In order to meet the terms of this agreement, Mr. Boyd had to secure financing within 45 days. In order to secure such financing he alleges that it became necessary for him to obtain $500 for closing costs and a down payment.

Mr. Boyd alleges that he is unemployed and can neither read nor write. His sole income is an Aid to Dependent Children Incapacitated grant. Therefore, he alleges that it was necessary for him to obtain the necessary $500 from the Michigan Veterans Trust Fund. On August 17, 1972 he applied to the Fund for assistance; he was not granted a hearing as his application was turned down on August 18, 1972, solely because he had not been a Michigan resident for the required five years.

As stated previously, the defendant has moved to dismiss this case. In support of this motion, it is argued that the durational residency requirement has harmed neither Mr. Barnes nor Mr. Boyd, as the defendant claims that they would necessarily be denied aid even if their applications were heard on the merits.

The defendant bases this argument on its contention that other regulatory requirements prevent these men from obtaining aid. These requirements are argued to be:

(1) That the veteran has an emergency need for assistance;

(2) That no other source of assistance is available to the veteran; and

(3) That temporary assistance is available only until the veteran can be assisted from another source.

However, these requirements are not part of a binding regulation; rather, they are merely contained in the title to a regulation. See Rule 35.621(1), 1954 Michigan Administrative Code. Further, in Michigan it is clear that the title to a statute does not create law. As the Michigan Supreme Court stated in People v. Smith, 246 Mich. 393, 224 N.W. 402 (1929):

"The title to an act must express the object of a law, and the enactment itself, without resort to the title, must make the law." 224 N.W. at 404.

Further, it is a general rule that:

"Construction of a regulation is necessarily an interpretation of the statute under which it is issued, particularly where the statute calls for regulations to be issued, and provisions and principles applicable to `statutes' may properly be applied to regulations." 2 Am.Jur.2d, Administrative Law § 295, pg. 123 (1962).

Following this general rule of construction, it cannot be said that the title to Rule 35.621(1) has a binding effect and necessarily precludes the granting of aid to the named plaintiffs. Further, even if the title were to be considered binding, it is not clear that these added requirements would bar the plaintiffs in this case.

It is clear that Rule 35.621(1), supra, does not bar these plaintiffs. This rule was promulgated under M.C.L.A. § 35.604(c) which authorizes the Board of the Michigan Veterans Trust Fund to issue rules governing the granting of assistance "on the basis of need." This rule defines need as:

"Any emergency . . . requires immediate assistance . . . to prevent undue hardship . . . . The emergencies may involve hospitalization, . . ., food, fuel, clothing, shelter, necessary transportation, or other unforeseen emergencies that require prompt attention." Rule 35.621(1), supra.

Clearly, it cannot definitely be said that this regulation bars these men's aid applications to the Michigan Veterans Trust Fund, as both of these men amply allege that they were faced with emergency situations when they applied for aid.

If the durational residency requirement had not acted as a per se bar to their applications, the applications of the named plaintiffs would have been considered by the local veterans' county committee. See M.C.L.A. § 35.606. These committees would then have made a highly discretionary decision as to whether the aid should be granted to these two veterans, a decision governed only by Rule 35.621(1), supra. It is clear that this decision would have been made, as the defendant has admitted that these plaintiffs meet all of the statutory requirements which must be met before aid can be granted (see M.C.L.A. § 35.602), except for the residency requirement.

In order for this court to find that these committees would have denied the requested aid, this court would have to involve itself in a guessing game of adding and subtracting various factors in an attempt to determine what a local county committee would view as an "emergency." This court refuses to engage in such an endeavor. From the allegations and affidavits submitted in this case, it is clear that these men were not millionaire veterans spuriously applying for aid. Both of these men were unemployed, both of these men were supported solely by assistance programs, and both of these men were confronted with a problem concerning one of their family's most crucial needs—the need for housing. On these facts, it is clearly not certain that these men would not have been granted emergency assistance by the appropriate committee. In fact, it is not clear that aid would have been denied even if the regulations were in fact as the defendant argues, as it is also not clear whether or not these men would satisfy the three additional requirements posed by the defendant. Therefore, this court finds that Mr. Barnes and Mr. Boyd were in fact harmed by the durational residency requirement, as that requirement prevented them from obtaining a hearing which might have resulted in a decision favorable to them.

Having determined that these plaintiffs were harmed in fact, this court must decide whether the suit presents a "case or controversy" and whether these plaintiffs have standing to raise a challenge to the durational residency requirement. It should be noted that only the first of these questions poses a problem of constitutional dimensions, as while case or controversy is a constitutional requirement, standing is not. However, the two have often been blended. As the Supreme Court stated in Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1952):

The requirement of standing is often used to describe the constitutional limitation on the jurisdiction of this Court to "cases" and "controversies." See Coleman v. Miller, 307 U.S. 433, 464 59 S.Ct. 972, 986, 83 L.Ed. 1385 (concurring opinion). Apart from the jurisdictional requirement, this Court has developed a complementary rule of self-restraint for its own governance (not always clearly distinguished from the constitutional limitation) which ordinarily precludes a person from challenging the constitutionality of state action by invoking the rights of others. See Ashwander v.

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