Farrington v. Adjutant General of State of Mich.

• Court: U.S. District Court — Western District of Michigan
• Writing for the Court: FOX, Senior
• Citation: Farrington v. Adjutant General of State of Mich., 492 F.Supp. 1362 (W.D. Mich. 1980)
• Decision Date: 02 July 1980
• Docket Number: No. G78-653 C.A.,G78-653 C.A.
• Parties: Dennis FARRINGTON, Individually and on behalf of all others similarly situated, Plaintiff, v. ADJUTANT GENERAL OF the STATE OF MICHIGAN, Department of Military Affairs, Vietnam Veteran Era Bonus Section, Defendant.

492 F. Supp. 1362

Dennis FARRINGTON, Individually and on behalf of all others similarly situated, Plaintiff, v. ADJUTANT GENERAL OF the STATE OF MICHIGAN, Department of Military Affairs, Vietnam Veteran Era Bonus Section, Defendant.

No. G78-653 C.A.

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

July 2, 1980.

William G. Youatt, Haslett, Mich., for plaintiff.

Robert S. Welliver, Asst. Atty. Gen., Lansing, Mich., for defendant.

OPINION

FOX, Senior District Judge.

Plaintiff, a retired United States Air Force officer and a decorated veteran of the Vietnam War, brings this class action for declaratory and injunctive relief under 42 U.S.C. §§ 1983 and 2202. The essence of his claim is that sections 35.1022(b) and (g)(iii)¹ of Michigan's Vietnam Veteran Era Bonus Act, M.C.L.A. 35.1021-.1038, violate the Equal Protection Clause of the Fourteenth Amendment because the distinction which is used to determine if a veteran qualifies for benefits: (1) has no rational basis, and (2) infringes on the fundamental right to interstate travel. He requests that certain portions of the Act be stricken and that defendant Adjutant General of the State of Michigan be enjoined from denying benefits to class members.

FACTS

Plaintiff, Dennis Farrington, was born in Kansas and moved to Oregon while still a youth. In 1954, he enlisted in the United States Air Force. He was commissioned as a Regular Air Force First Lieutenant in 1961, and in that same year he was transferred to K. I. Sawyer Air Force Base, Marquette, Michigan.

It is undisputed that after plaintiff's arrival he began to take steps toward becoming a Michigan resident, and that from 1962 through 1972 he was, in fact, a resident of the State. This is supported by the fact that during this period he: (1) joined a local church, (2) licensed his car in Michigan, (3) obtained a Michigan driver's license, (4) voted in local elections, (5) purchased a hand gun which he registered in the State, (6) bought resident licenses for hunting and fishing, and (7) bought property in the State in 1964 on which he has vacationed every year since, except 1966. Plaintiff also filed documents with the Air Force prior to, and during his service in Vietnam, listing Michigan as his residence, and even after he retired from the service in 1970, he continued to reside here. In 1972, he transferred his residence to Florida where he attended law school. He never re-established Michigan residency and is now a resident of Oregon.

Two years after plaintiff gave up his Michigan residency, the Michigan Legislature authorize a state-wide referendum to determine if the State should borrow $205,000,000 through the issuance of general obligation bonds so that a bonus could be provided to qualifying veterans who served in the armed forces during the period of the Vietnam War, M.C.L.A. 35.1001-.1011. The electorate approved this in the general election of November 1974, and in December 1974, the Legislature enacted the Vietnam Veteran Era Bonus Act, M.C.L.A. 35.1021-.1038.

This Act provides payments to veterans who meet certain qualifications and who file their claim for benefits before June 30, 1980. Among the requirements that must be met is one that the veteran must have served in the armed forces between January 1, 1961 and September 1, 1973; a second requirement concerns the veteran's residency. As originally enacted, a veteran had to have been a resident of the State of Michigan for not less than six months before entering the service. P.A.1974, No. 370, § 2(b), as amended by P.A.1978, No. 491. The term "resident" was defined as a person who:

(i) Was born in and lived in this state until entrance into the armed forces of the United States.

(ii) Was born in, but was temporarily living outside this state, not having abandoned residence in this state before entrance into the armed forces of the United States.

(iii) Was born elsewhere but had resided within this state for at least 6 months immediately before entrance into military service and had before or during this 6 months' period:

(A) Registered to vote in this state.

(B) Lived with a parent or person standing in loco parentis who had acquired a residence as set forth in this subdivision, while an unemancipated minor.

(C) If not registered to vote in this state, was not registered to vote in another state, or had not voted in another state within 6 months before entering service, and had resided in this state for at least 6 months immediately before entrance into the armed forces of the United States.

P.A.1974, No. 370, § 2(g), as amended by P.A.1978, No. 491.

On January 19, 1976, plaintiff filed an application for benefits under the Act. His claim was denied, allegedly because he had not resided in the State of Michigan for six months immediately preceding his entrance into military service. He appealed this to the Michigan Court of Claims, and on March 20, 1978, it affirmed the denial.

A few months after this, plaintiff filed this suit against the Adjutant General of the State of Michigan, whose duty it is to receive and review claims for benefits and to accept or reject them. M.C.L.A. 35.1027(6) and (7). He alleges that the six-month residency requirements of P.A.1974, No. 370, §§ 2(b) and (g)(iii) violate the equal protection clause of the Fourteenth Amendment and infringe on his fundamental right to interstate travel, see, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). His equal protection argument is based on the fact that the statute classifies applicants for benefits on the length of their residency; however, his argument is not confined to this. He also alleges that the Act is unconstitutional because it pays benefits to those civilians who entered the service as Michigan residents, but denies benefits to those, like himself, who entered the service as a resident of another state and thereafter became a resident of Michigan.

After filing this complaint, plaintiff filed motions for class certification and for summary judgment, both of which were opposed by the State. The case was almost ready for this court to schedule hearings, when on January 15, 1980 the Act's residency requirements were expanded. A "veteran" is now defined as a person who was "a resident of this state for not less than 6 months before entering the service or before January 1, 1961 . . .." M.C.L.A. 35.1022(b) (Public Act of 1980, No. 213).² The definition of the term "resident" was also amended to comport with this language. M.C.L.A. 35.1022(g)(iii).³ The Act's other terms, including its effective date of expiration, June 30, 1980, remain unchanged.

Plaintiff has not refiled a claim for benefits in the hope that he might now qualify, but the facts alleged in his complaint make it certain that even under the amended Act he would receive no bonus because he was not a "resident" prior to 1961. Plaintiff has also not formally amended his complaint to take into consideration these amendments but after listening to arguments presented to this court on the issue of class certification and after reviewing the parties' many briefs, it appears that both sides are properly focusing their attention on the constitutionality of the present law. It is this law which will be addressed by this opinion since it now governs who is to be paid benefits.

ABSTENTION

In its answer to plaintiff's complaint, defendant raises the issue of abstention, arguing that this court should abstain from rendering a decision on state law until plaintiff has availed himself of relief from the state courts. In raising the issue, defendant directs this court's attention to P.A.1974, No. 370, sec. 7a Vietnam Veteran Era Bonus Act, M.C.L.A. 35.1027(1). This subsection merely requires that a claimant submit proof that he is entitled to a bonus to the defendant adjutant general. Plaintiff did this and his claim was rejected; he then appealed to the Michigan Court of Claims, M.C.L.A. 35.1027(6)-(8), which also denied his claim.

Defendant has not addressed the abstention issue in any pleading beyond his answer, so there is no motion and brief on this issue. This might be construed as an indication that defendant no longer wishes to have this issue considered, but to be safe this court will address it.

There are two primary types of federal abstention. The first is commonly referred to as Pullman abstention because it was first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); the second type is Younger abstention, which was established in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). See, Ohio Bureau v. Hodory, 431 U.S. 471, 477-481, 97 S.Ct. 1898, 1902-1904, 52 L.Ed.2d 513 (1977).

A.

Pullman abstention is based on the federal court's regard for the sovereignty of state courts and the reluctance to needlessly adjudicate federal constitutional issues if the parties may avail themselves of the state courts in order to obtain a construction of a challenged state law. Zwickler v. Koota, 389 U.S. 241, 250, 88 S.Ct. 391, 396, 19 L.Ed.2d 444 (1967). But the Supreme Court has cautioned that abstention is to be permitted in only "narrowly limited `special circumstances,'" which justify the delay and expense occasioned by the invocation of the doctrine. Lake Carriers' Assn. v. MacMullen, 406 U.S. 498, 509, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257 (1972).

The Supreme Court has accordingly held that Pullman abstention permits deference to state court adjudication only where the issue of state law is uncertain. Kusper v. Pontikes, 414 U.S. 51, 55, 94 S.Ct. 303, 306, 38 L.Ed.2d 260 (1973); Zwickler v. Koota, supra, 389 U.S. at 248-250, 88 S.Ct. at 395-396; Harman v. Forssenius, 380 U.S. 528, 534-535, 85 S.Ct. 1177, 1181-1182, 14 L.Ed.2d 50 (1965). As the Court in Harman ruled:

If the state statute in question, although never interpreted by a state tribunal, is not fairly subject to an interpretation which

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