Leech v. Veterans' Bonus Division Appeals Bd.

• Court: Connecticut Supreme Court
• Writing for the Court: Before COTTER; ARTHUR H. HEALEY; In this opinion, COTTER, C. J., and LOISELLE; BOGDANSKI; PETERS
• Citation: Leech v. Veterans' Bonus Division Appeals Bd., 426 A.2d 289, 179 Conn. 311 (Conn. 1979)
• Decision Date: 11 December 1979
• Parties: Robert L. LEECH v. VETERANS' BONUS DIVISION APPEALS BOARD.

Page 289

426 A.2d 289

179 Conn. 311

Robert L. LEECH v. VETERANS' BONUS DIVISION APPEALS BOARD.

Supreme Court of Connecticut.

Argued Oct. 3, 1979.

Decided Dec. 11, 1979.

Robert J. Wise, Simsbury, for appellant (plaintiff).

Bernard F. McGovern, Jr., Asst. Atty. Gen., with whom, on brief, was Carl R. Ajello, Atty. Gen., for appellee (defendant).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.

ARTHUR H. HEALEY, Associate Justice.

General Statutes §§ 27.140a through 27-140m provide for a bonus for veterans of the Vietnam era. A threshold qualification a veteran must possess to be eligible for such a bonus is that he, "at the time of entering such service, had been domiciled in this state for at least one year next preceding ... (such entry into service)." General Statutes § 27-140a. The plaintiff's application for the Vietnam bonus was denied by the state treasurer because the plaintiff did not fulfill that qualification. The Veterans' Bonus Division Appeals Board upheld the action of the state treasurer on the same ground. Thereafter, the plaintiff appealed to the Court of Common Pleas, which dismissed his appeal. The appeal to this court followed.

The material facts are not contested. The plaintiff Robert L. Leech, while a minor living with his parents in Indiana, entered the military service as a cadet at the United States Military Academy at West Point, New York. Upon his graduation from West Point in 1960 he was commissioned an officer in the army and has been on active military duty ever since. In 1964 he established his domicile in Connecticut and has maintained it continuously ever since. His active military duty has included two tours of duty in Vietnam. His claim for a bonus as a Vietnam veteran was denied because he was not domiciled in Connecticut for the one year period just prior to his entrance into the service.

The plaintiff has mounted a broadside attack on the domicile requirement of the Vietnam veterans' bonus statute. He claims that the domicile requirement violates the equal protection clause of the fourteenth amendment of the United States constitution and article first § 1 of the state constitution by creating a classification based on prior residence that is inherently suspect or that infringes upon a fundamental constitutional right without a showing by the state that the classification established is necessary to promote a compelling governmental interest. The plaintiff alternatively contends that the domicile requirement does not bear a rational relationship to a legitimate state purpose. The plaintiff also claims that the domicile requirement is severable from the veterans' bonus statute. Because we have said that article first § 1 of the state constitution has a like meaning to that of the equal protection clause of the fourteenth amendment to the federal constitution; Lublin v. Brown, 168 Conn. 212, 219, 362 A.2d 769 (1975); Lyman v. Adorno, 133 Conn. 511, 515, 52 A.2d 702 (1947); our analysis of the claim based upon the federal constitution shall apply with equal force to the state constitutional provision.

At the outset of the consideration of every equal protection claim lies the determination of the standard of review by which the challenged classification must be judged. "Equal protection analysis must commence with a determination of whether a legislative classification is invidious, or 'inherently suspect,' or whether the legislation impinges upon a fundamental right. Where the legislation impinges upon a fundamental right or creates a suspect classification, then it must be struck down unless justified by a compelling state interest. Dunn v. Blumstein, 405 U.S. 330, 335, 342, 92 S.Ct. 995, 31 L.Ed.2d 274. Where the statute does not involve fundamental rights or suspect classifications, the legislation will withstand constitutional attack if the distinction is founded on a rational basis. (Citations omitted.)" Laden v. Warden, 169 Conn. 540, 542-43, 363 A.2d 1063, 1065 (1975); see also Horton v. Meskill, 172 Conn. 615, 640, 376 A.2d 359 (1977).

The plaintiff's argument that the critical analysis of "strict scrutiny"; see Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); must be used here because the statutory provision creates an "inherently suspect" classification, merits little discussion. The classification created is not "inherently suspect." This is so because the classification attacked has none of the traditional indicia of suspectness: "(T)he class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973). The United States Supreme Court has recognized as suspect, classifications based on race, McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964), national origin, Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), and alienage, Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). ¹ The veterans' bonus statute clearly does not create a suspect classification.

The plaintiff also claims that we must employ the strict scrutiny standard of review because the statute infringes upon a fundamental interest, the constitutionally protected right to travel. We do not agree. The right of interstate travel has long been firmly established and repeatedly recognized as a fundamental right under the federal constitution. United States v. Guest, 383 U.S. 745, 757, 759, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966) and cases there cited; see also Memorial Hospital v. Maricopa County, 415 U.S. 250, 253, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974); Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Oregon v. Mitchell, 400 U.S. 112, 237, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970); Shapiro v. Thompson, supra, 394 U.S. 629-31, 634, 89 S.Ct. 1322. This freedom to travel from state to state includes the "freedom to enter and abide in any State in the Union." Oregon v. Mitchell, supra, 400 U.S. 285, 91 S.Ct. 345; see Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 80, 21 L.Ed. 394 (1872). In Memorial Hospital the United States Supreme Court made clear that, "(a)lthough any durational residence requirement impinges to some extent on the right to travel," it is the degree of the impact upon the right to travel that determines whether the state will be required to demonstrate a compelling state interest to justify the statute or simply a rational relationship between the statute and a proper state interest. See Memorial Hospital v. Maricopa County, supra, 415 U.S. 256-57, 94 S.Ct. 1081. The statute will be subject to strict judicial scrutiny where its impact on the right to travel arises to the level of either (1) deterring migration, or (2) penalizing the exercise of the right to travel. Ibid.; see Shapiro v. Thompson, supra, 394 U.S. 631, 638, 89 S.Ct. 1322. Thus, in Shapiro the Supreme Court concluded that the imposition of a one year waiting period for interstate migrants as a condition to receiving welfare benefits unconstitutionally deterred migration. Shapiro v. Thompson, supra, 629, 631, 89 S.Ct. 1322. In Dunn, the court found that the denial of the franchise, "a fundamental political right"; Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); to new residents for one year constituted a penalty on the exercise of the constitutional right to travel. Dunn v. Blumstein, supra, 405 U.S. 340-43, 92 S.Ct. 995. In Memorial Hospital, the Supreme Court had before it an Arizona statute that required a county to deny free nonemergency medical care to persons who had not resided in the county for at least twelve months. Analogizing the statute to the one it invalidated in Shapiro, the court struck it down as penalizing the right to travel, concluding that the state could not justify the residency requirement by showing that it was necessary to promote a compelling state interest. Memorial Hospital v. Maricopa County, supra, 415 U.S. 254-59, 261-69, 94 S.Ct. 1076.

We, however, need not go that far in our analysis in this case because we have determined that the domicile requirement of § 27-140a is not a durational residency requirement of the type that has been held to have some impact on the right of interstate travel. We base this conclusion upon a comparison of § 27-140a with the durational residency statutes that the United States Supreme Court has struck down. In each of the cases referred to above, the challenged statute imposed a waiting period on new residents as a condition to the receipt of prospective benefits to which they would have been entitled but for the recent exercise of their right to interstate travel. In Dunn v. Blumstein, supra, 405 U.S. 338, 92 S.Ct. 1001, the Supreme Court said that "Tennessee's durational residence laws classify bona fide residents on the basis of recent travel, penalizing those persons, and only those persons, who have gone from one jurisdiction to another during the qualifying period." (Emphasis added.) The domicile requirement of § 27-140a has no such impact on the right to travel. Instead, this one year domicile requirement has been employed by the legislature as one of the criteria to identify a class of persons which it has decided to recognize and benefit. That class was determined and closed on the date the statute became effective. The statute provided for no continuing or prospective benefit to be conferred upon new residents only after a certain waiting period had elapsed, as was the case in Shapiro, Dunn and Memorial Hospital.

Under the reasoning of the United States Supreme Court cases, a proscribed durational residence requirement ² is a requirement that the traveler not only be a state...