Reitz, In re, 249

CourtUnited States State Supreme Court of Wisconsin
Citation191 N.W.2d 913,53 Wis.2d 87
Docket NumberNo. 249,249
PartiesIn re Harold REITZ et al., Dependent Person. TOWN OF VANDEN BROEK, OUTAGAMIE COUNTY, Petitioner-Respondent, v. Harold REITZ et al., Defendants-Appellants.
Decision Date30 November 1971

Appeal from an order overruling the demurrer to the petition of the Town of Vanden Broek, Outagamie County, petitioner-respondent (hereinafter petitioner). The proceedings were instituted pursuant to the provisions of sec. 49.09, Stats., Removal of dependents. The constitutionality of the statute is challenged. Proceedings on the petition have been stayed pending this appeal.

James R. Scott, Stuart E. Schmitz, Milwaukee, for appellants.

Bollenbeck, Patterson, Froehlich, Jensen and Wylie, Appleton, A. W. Ponath, Appleton, of counsel, for respondent.


The petition alleged that Harold and Isabell Reitz, husband and wife, (defendants-appellants) have legal settlement in the petitioning town and therefore if public relief is granted to them it must be paid by the town; that defendants reside in Milwaukee county and first obtained relief from Milwaukee county in October, 1967, and have been dependent persons and on relief since that time pursuant to the provisions of sec. 49.01(4), Stats.; that from October of 1967 to date of petition (July 14, 1970), defendants have received relief from Milwaukee county; that the petitioning town offers and is able to provide employment for defendants in the township so that it will not be necessary for them to be on public relief in Milwaukee county; that petitioner has invited them to return to the town, but they have refused and neglected to come back; that the petitioner is informed that unemployment in Milwaukee county is very high and that there is no immediate or prospective opportunity for defendants to secure employment in Milwaukee county and that petitioner believes that in view of the fact that defendants remain unemployed in Milwaukee county after residing there since February of 1967, and being on relief most of the time, that they should be required to return to their place of legal settlement, i.e., petitioning town; that their return to the township will not substantially reduce the employment and earning opportunities of the defendants, will not materially disrupt family ties, and will not work any material injustice upon them.

Sections 49.01 to 49.17, Stats., constitute a plan for general relief to provide eligible dependent persons with necessary commodities, services and money. As applied to the facts of this case, the plan is financed by the taxpayers of the municipality of the recipient's legal settlement, and is totally distinct from state and federal categorical aid plans such as old-age assistance, aid to the blind, aid to families with dependent children, and aid to totally or partially disabled. 1 Legal settlement is established in a municipality by residing therein for one year without receiving assistance of public or private aid, sec. 49.10. Once legal settlement for relief purposes is established in the particular municipality, it continues until it is lost by residing outside the municipality without support as a dependent person for one year.

Thus, since defendants' legal settlement for general relief purposes has been established in the Town of Vanden Broek, so it continues until they have been absent therefrom for one year without receiving general relief. The Town of Vanden Broek bears the ultimate cost of assistance, notwithstanding that the defendants reside in another municipality or county. Absent a removal proceeding, the municipality of legal settlement may be chargeable for general relief furnished to a recipient residing in another municipality for an indefinite number of years. 2

This appeal concerns sec. 49.09(1) and (2), Stats., which provide:

'49.09 Removal of dependents. (1) When a dependent person, other than a recipient of old-age assistance, aid to blind, aid to families with dependent children, or aid to totally and permanently disabled persons is receiving relief elsewhere than at his place of settlement and refuses to return thereto, the officer or agency of the place administering relief or of the place of settlement may petition the judge of the county court or the judge of any other court of record of the county in which the relief is furnished for an order directing such person to return to his place of settlement. The petition shall state specifically the reasons upon which the order is sought and copies shall be served upon the dependent person, the officer or agency of the place of residence or the place of legal settlement. Notice of hearing shall be served upon the same parties at least 10 days in advance of the hearing. Service may be made personally or by registered mail with return receipt requested.

'(2) If the judge finds that return to the place of legal settlement does not substantially reduce the employment and earning opportunities of the dependent person, does not materially disrupt family ties, and does not work any material injustice to him, he may order the dependent person to return to his place of settlement. The order of the judge for removal shall specify a time beyond which no further relief shall be granted the dependent person unless he returns to the place of his legal settlement and shall further specify the conditions to be complied with by the petitioning municipality to provide suitable transportation to the place of settlement. The cost of transportation shall be chargeable to the place of legal settlement and may be recovered as any other relief costs, pursuant to section 49.11. * * *'

Appellants advance three arguments in support of the proposition that the procedure embodied in sec. 49.09(1) and (2), Stats., is unconstitutional: (1) Denial of equal protection, (2) interferes with the right of privacy, and (3) infringes on the right to travel.


Appellants argue that the statutory plan discriminates between persons residing in their established legal settlement and persons residing elsewhere than the place of legal settlement. The latter class is subject to being removed to their place of legal settlement or, upon refusal to do so, is subject to a termination of general assistance, while a person residing at his established legal settlement is subject only to termination of general assistance if he refuses employment.

However, it is only irrational or arbitrary classifications which violate the equal protection clause. State ex rel. Schopf v. Schubert (1970), 45 Wis.2d 644, 173 N.W.2d 673; Hill v. Burke (7th Cir. 1970), 422 F.2d 1195. In Dandridge v. Williams (1970), 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, the court stated:

'In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369. 'The problems of government are practical ones and may justify, if they do not require, rough accommodations--illogical, it may be, and unscientific.' Metroplis Theatre Co. v. City of Chicago, 228 U.S. 61, 69--70, 33 S.Ct. 441, 57 L.Ed. 730. 'A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393.'

Where, however, a statutory classification is based on either 'suspect' criteria 3 or infringes on a constitutional right, it will constitute a denial of equal protection under the fourteenth amendment unless justified by a compelling state interest. Graham v. Richardson, supra.

In Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, the court held unconstitutional four state statutes which conditioned the distribution of welfare benefits on a one-year state residency requirement. Each of the four statutes involved assistance plans jointly funded by the state and federal governments. 4 The court based its decision on the constitutional right to travel and condemned as impermissible state objectives, either the deterrence of indigents from migrating to the state or the limitation of welfare benefits according to prior tax contributions. The essence of the court's decision is stated on page 634, 89 S.Ct. on page 1331:

'* * * 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. Cf. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944); Bates v. Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).'

In Graham v. Richardson, supra, a requirement that aliens live in the United States for fifteen years as a condition of eligibility for aid to partially or totally disabled persons (funded jointly by the state and federal governments) was held unconstitutional as a denial of equal protection. The court analogized the discrimination against aliens to the discrimination of non-residents in Shapiro and also based its decision on the fundamental right to travel. Similarly, a plan of general assistance, administered and funded wholly by the state, which denied welfare benefits to noncitizens of...

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    ... ... The "strict scrutiny" standard applies only to classifications involving a "suspect" category or a fundamental right. Town of Vanden Broek v. Reitz, 53 Wis.2d 87, 93, 191 N.W.2d [81 Wis.2d 507] 913 (1971), appeal dismissed 406 U.S. 902, 92 S.Ct. 1608, 31 L.Ed.2d 813; Moedern v. McGinnis, 70 Wis.2d 1056, 1072, 236 N.W.2d 240 (1975). Chapter 655 involves neither ... Page 442 ...         Petitioners urge that the statutory ... ...
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