Green v. Anderson, No. Civ. S-92-2118.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Citation811 F. Supp. 516
Decision Date28 January 1993
Docket NumberNo. Civ. S-92-2118.
PartiesDeshawn GREEN, Debby Venturella, and Diana P. Bertollt, on behalf of themselves and all others similarly situated, Plaintiffs, v. Eloise ANDERSON, California Department of Social Services, Thomas Hayes, Defendants.

811 F. Supp. 516

Deshawn GREEN, Debby Venturella, and Diana P. Bertollt, on behalf of themselves and all others similarly situated, Plaintiffs,
Eloise ANDERSON, California Department of Social Services, Thomas Hayes, Defendants.

No. Civ. S-92-2118.

United States District Court, E.D. California.

January 28, 1993.

Sarah Elizabeth Kurtz, Peter H. Reid, Hope G. Nakamura, San Mateo County Legal Aid Society, Redwood City, CA, Mark D. Rosenbaum, Silvia R. Argueta, ACLU Foundation of Southern California, Los Angeles, CA, Grace A. Galligher, Coalition of

811 F. Supp. 517
California Welfare Rights Organizations, Sacramento, CA, Jeffrey R. Williams, Morgenstein and Jubelirer, Judith E. Kurtz, Equal Rights Advocates, San Francisco, CA, for plaintiffs

Dennis Eckhart, Theodore Garelis, California State Attys. Gen., Mary L. Grad, Asst. U.S. Atty., Sacramento, CA, for defendants.


LEVI, District Judge.

Plaintiffs are California residents who have moved or relocated to the State of California within the past twelve months and seek welfare benefits under the Aid to Families with Dependent Children ("AFDC") program.1 California recently enacted a durational residency requirement of one year for full AFDC benefits; until the applicant for AFDC has resided in the State for twelve consecutive months, the applicant's level of benefits may not exceed what the family would have received in the state of prior residence. Cal.Welf. & Inst. Code § 11450.03 (West Supp.1992).2 The residency requirement became effective upon approval by the United States Secretary of Health and Human Services. The Secretary gave approval on October 29, 1992,3 and the California Department of Social Services began applying the residency limitation shortly thereafter.

Plaintiff Deshawn Green was a Sacramento resident for twelve years and then moved to Louisiana in 1985. She had two children in Louisiana. In December 1992, Green decided to move back to California where her mother lives. The full monthly California AFDC grant for a family of three is $624; under the two tier system for the next twelve months Green will receive $190 a month which is what she would have received in Louisiana. Plaintiff Debby Venturella came to California in December 1992. She has one child and is pregnant. She had been living in Oklahoma for six weeks when she decided to move to California where her parents live. She was not receiving AFDC benefits in Oklahoma. Under the two tier system, after her child is born, Venturella will be limited to AFDC benefits of $341, which is the Oklahoma level for a family of three. Finally, plaintiff Diana Bertollt moved to California from Colorado to be with relatives. She has one child and will be limited to $280 a month — the Colorado benefit — as opposed to the full California amount of $504 for two family members.

All three plaintiffs allege that they moved to California to escape abusive family circumstances. Green Decl., ¶ 3; Venturella Decl., ¶ 12; Bertollt Decl., ¶ 2. There is no dispute that all three plaintiffs are bona fide residents of the State of California, and the State acknowledges that plaintiffs are entitled to AFDC benefits — albeit at the reduced level — as California residents. See Defs.' Opp'n, 19:14-15; Cal.

811 F. Supp. 518
Welf. & Inst.Code § 17100 (West 1991). By separate order the court will provisionally certify this matter as a class action.4

The State of California budget allocates nearly $6 billion for AFDC benefits in 1992-93. The California Department of Finance estimates that the durational residency requirement at issue here will save the State $8.4 million in the 1992-93 fiscal year and $22.5 million in the 1993-94 fiscal year. Hordyk Decl., ¶ 5.5

Plaintiffs now move for a preliminary injunction blocking application of the durational residency requirement in section 11450.03(a) of the California Welfare and Institutions Code. A temporary restraining order was issued December 22, 1992 by the Honorable Milton L. Schwarz and remains in effect by stipulation.


The State's two tier system for AFDC benefits implicates the constitutional right to freedom of travel or migration. The right to migrate from one state to another "occupies a position fundamental to the concept of our Federal union" and "has long been recognized as a basic right under the Constitution." United States v. Guest, 383 U.S. 745, 757-58, 86 S.Ct. 1170, 1177-78, 16 L.Ed.2d 239 (1966). Although the right to travel is not protected by explicit provision in the Constitution, as it was in the Articles of Confederation,6 the Supreme Court repeatedly has held that such a right inheres in the concept of a union. See, e.g. id.; Zobel v. Williams, 457 U.S. 55, 67, 102 S.Ct. 2309, 2316, 72 L.Ed.2d 672 ("I find its unmistakable essence in that document that transformed a loose confederation of States into one Nation") (Brennan, J., concurring).7

The right of migration protects not only physical movement, and forbids direct restraints on interstate migration,8 but also "protects residents of a State from being disadvantaged, or from being treated differently, simply because of the timing of their migration, from other similarly situated residents." Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 905, 106 S.Ct. 2317, 2322, 90 L.Ed.2d 899 (1986). It is this equal treatment aspect of the right to migration — rather than the prohibition on direct barriers to movement — that has been most important in the more recent cases. The Court consistently has rejected state preferences for longer term residents, even when motivated by an altruistic desire to do more for the state's "own:"

The State may not favor established residents over new residents based on the
811 F. Supp. 519
view that the State may take care of `its own,' if such is defined by prior residence. Newcomers, by establishing bona fide residence in the State, become the State's `own' and may not be discriminated against solely on the basis of their arrival in the State after a fixed date.

Hooper v. Bernalillo County Assessor, 472 U.S. 612, 623, 105 S.Ct. 2862, 2868, 86 L.Ed.2d 487 (1985).

Because of this right to equal treatment without regard to the length of residency, the Court has almost invariably found that durational residency requirements are unconstitutional. Such residency requirements distinguish not between bona fide residents and non-residents but between residents based on the length of their residency in the state.

In Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), the Court found unconstitutional provisions denying welfare assistance to residents who had not resided for at least one year within the jurisdiction. Such provisions discriminate invidiously by "creating two classes of needy resident families indistinguishable from each other except that one is composed of residents who have resided a year or more, and the second of residents who have resided less than a year, in the jurisdiction." Id. at 627, 89 S.Ct. at 1327. The Court rejected the justification that such a waiting period would deter migration of poor people into the state; such a justification was directly at odds with the constitutional right of migration. Id. at 629, 89 S.Ct. at 1328. Nor was it relevant whether those migrating to the state in fact were seeking higher assistance payments or came for other reasons; the Court found that a State had no more right to deter those from settling in search of greater welfare assistance than it would to deter those seeking better educational opportunities. Id. at 631-32, 89 S.Ct. at 1329-30. The Court also rejected any justification of the measure based on past tax contributions; this "reasoning would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection." Such an apportionment of state services would violate equal protection. Id. at 632, 89 S.Ct. at 1330. Finally, the Court held that the states' legitimate concern for its fiscal integrity could not justify discrimination against new residents for the "saving of welfare costs cannot justify an otherwise invidious classification." Id. at 633, 89 S.Ct. at 1330.

In Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), the Court followed Shapiro and invalidated an Arizona provision requiring a year's residence in a county as a condition of receiving nonemergency medical care at county expense. The Court framed the issue as whether the state's classification "penalized" persons who had recently migrated to the state. Id. at 256-57, 94 S.Ct. at 1081-82. If there were such a penalty the provision would be unconstitutional unless supported by a compelling state interest. Id. at 262-63, 94 S.Ct. at 1084-85. The Court found that just as the denial of the necessities of life in Shapiro operated to penalize recent migrants so did the denial of nonemergency medical care. The Court rejected the State's argument that since some medical services — indeed, emergency services — were provided without waiting, the denial of nonemergency medical services could be distinguished from the complete denial as in Shapiro. Id. at 259-61, 94 S.Ct. at 1082-83. Nor was the State's interest in protecting its financial stability of sufficient strength to justify the discrimination against newcomers:

The conservation of the taxpayers' purse is simply not a sufficient state interest to sustain a durational residence requirement which, in effect severely penalizes exercise of the right to freely migrate and settle in another State.

Id. at 263, 94 S.Ct. at 1085. Similarly, in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), decided before Memorial Hospital, the Court invalidated a durational residency provision requiring one-year's residence before a new resident could vote.

811 F. Supp. 520

On only one occasion has the Court upheld a...

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