Jones v. Milwaukee County

485 N.W.2d 21, 168 Wis. 2d 892, 1992 Wisc. LEXIS 331

• Court: Wisconsin Supreme Court
• Decided: June 17, 1992
• Docket: 91-0817
• Status: Published

Opinions

DAY, J.

This is an appeal on bypass granted pursuant to sec. 809.60, Stats., 1989-90, from a decision by the Circuit Court for Milwaukee County, Patricia D. McMahon, Judge, holding sec. 49.015, Stats., 1985-86, which requires dependent persons to have resided in Wisconsin for at least 60 consecutive days to be eligible for general relief, to be unconstitutional under the equal protection clauses of the United States and Wisconsin Constitutions.

We hold that the 60 day waiting period requirement is constitutional under the equal protection clauses of the United States and Wisconsin Constitutions. We therefore reverse the decision of the circuit court.

This case arises from an action filed by Vanessa and Kevin Jones on December 14, 1988 in the Circuit Court for Milwaukee County seeking injunctive and declaratory relief on behalf of themselves and the class of persons living in Milwaukee County whose applications for general relief benefits have been, were being, or will be denied because they had not resided in Wisconsin for at least 60 consecutive days before applying for general relief under sec. 49.015, Stats.

Plaintiffs argued that the 60 day waiting period violated plaintiffs' right to travel as guaranteed by the United States Constitution, and plaintiffs' right to equal protection of the law as guaranteed by the United States and Wisconsin Constitutions.

The circuit court certified the action as a class action, allowed Alex Gardner to intervene, and granted plaintiffs' motion for a temporary injunction prohibiting defendants from denying general relief benefits to members of the class solely because they failed to meet the 60 day durational residency requirement. Subsequently, both plaintiffs and defendants moved for summary judgment.

On May 2, 1990, the circuit court granted plaintiffs' motion for summary judgment and held that the challenged statute violated plaintiffs' constitutional right to travel and to equal protection of the law.¹

The material facts are not in dispute. Defendant Milwaukee County is a municipal corporation in Wisconsin and is required by sec. 49.02(1m), Stats., to maintain a program that provides general relief to all eligible dependent persons within Milwaukee County.

Defendant Milwaukee County Department of Social Services is an administrative agency created pursuant to sec. 46.215(1)(a), Stats. Among its responsibilities is the administration of the general relief program in Milwaukee County.

Section 49.01(2), Stats., defines a dependent person as:

an individual without the presently available money, income, property or credit, or other means by which it can be presently obtained, excluding the exemptions set forth under s. 49.06, sufficient to provide the necessary commodities and services specified in sub. (5m).

Section 49.01(5m), Stats., defines general relief to mean:

such services, commodities or money as are reasonable and necessary under the circumstances to provide food, housing, clothing, fuel, light, water, medicine, medical, dental, and surgical treatment (including hospital care), optometrical services, nursing, transportation, and funeral expenses, and include wages for work relief. The food shall be of a kind and quantity sufficient to provide a nourishing diet. The housing provided shall be adequate to health and decency. Where there are children of school age the general relief furnished shall include necessities for which no other provision is made by law. The general relief furnished, whether by money or otherwise, shall be at such times and in such amounts, as will in the discretion of the general relief official or agency meet the needs of the recipient and protect the public.

The eligibility section at issue, sec. 49.015, Stats., provides:

(1) In this section, "close relative" means the person's parent, grandparent, brother, sister, spouse or child.

(2) No person is eligible for general relief under this chapter unless the person has resided in this state for at least 60 consecutive days before applying for general relief. This requirement does not apply if the person resides in this state and meets any of the following conditions:

(a) The person was born in this state.

(b) The person has, in the past, resided in this state for at least 365 consecutive days.

(c) The person came to this state to join a close relative who has resided in this state for at least 180 days before the arrival of the person.

(d) The person came to this state to accept a bona fide offer of employment and the person was eligible to accept the employment.

(e) The person came to this state for a lawful purpose without intent to seek benefits under this chapter.

(3) Prior to January 1, 1987, a county or municipality may waive the requirement under sub. (2) in a medical emergency or in case of unusual misfortune or hardship. Each waiver shall be reported to the department. The department may deny reimbursement under s. 49.035 and s. 49.04,1983 stats., for any case in which a waiver is inappropriately granted.

(4) After December 31, 1986, a general relief agency may waive the requirement under sub. (2) in a medical emergency or in case of unusual misfortune or hardship. Each waiver shall be reported to the department. The department may deny reimbursement under s. 49.035 for any case in which a waiver is inappropriately granted.

During the 1986-87 legislative session, section 49.015(2)(e), Stats., was repealed, thus eliminating the exception for those who "came to this state for a lawful purpose without intent to seek benefits."²

Defendants amended their policies to conform with the changes in section 49.015, Stats., and, as a matter of policy and practice, deny general relief benefits to persons that have not resided in Wisconsin for 60 consecutive days prior to application unless they satisfy one of the exceptions.

Milwaukee County routinely verifies all eligibility factors, including residence in Milwaukee County, in determining the eligibility of applicants for general relief. In so doing, Milwaukee County utilizes its limited resources to the best of its ability.

Plaintiffs Vanessa and Kevin Jones are adults who reside in Milwaukee County and were denied general relief benefits because they had not resided in Wisconsin for 60 consecutive days. They arrived in Wisconsin with their three children on November 22, 1988, intending to spend the Thanksgiving holidays with the family of a friend. They applied for general relief on December 6, 1988 because they were without available money, income, property, or credit or any other means to obtain such resources sufficient to provide for basic necessities.

Plaintiff Alex Gardner is an adult resident of Milwaukee County who previously lived with his parents in Waukegan, Illinois, and supported himself with sporadic employment in the building trades industry. When his parents moved to Texas, he moved to Milwaukee. He stayed at the Guest House, a temporary shelter for homeless persons, where he was told he could remain for only 30 days. Having no funds, he applied for general relief on January 17, 1989.

Plaintiffs Vanessa Jones, Kevin Jones, and Alex Gardner were denied general relief benefits solely because they had not resided in Wisconsin for 60 days. In addition to these named plaintiffs, at least 20 persons each month are denied general relief benefits by defendants solely because they fail to satisfy the 60 day residency requirement.

The circuit court relied ostensibly on Shapiro v. Thompson, 394 U.S. 618 (1969), as the basis for its decision. Shapiro held that Connecticut's, Pennsylvania's, and the District of Columbia's public assistance statutes, which imposed one year residency eligibility requirements, were unconstitutional under the equal protection clause.

The Court in Shapiro found that the one year waiting period created two classifications of persons; namely, those who had resided in the jurisdiction for one year, and those who had not. Id. at 627. The Court stated that the right to travel has long been recognized as fundamental, id. at 629-30, and reviewed the statutes under the "strict scrutiny” standard because, it concluded, "any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." Id. at 634.

The Court discussed the states' and District's purposes in enacting the one year waiting requirement and concluded that, "[t]he interests which appellants assert are promoted by the classification either may not constitutionally be promoted by government or are not compelling governmental interests." Id. at 627.

Initially, the Court addressed the "constitutionally impermissible" governmental objectives. First, the Court concluded that it was constitutionally impermissible to deter migration for the purpose of protecting the fiscal integrity of state public assistance programs based on the argument that state programs to assist long time residents will be impaired by an influx of indigent newcomers. Id. at 627-32. Second, the Court concluded that the equal protection clause would not permit apportioning state services on the basis of the respective tax contributions of the new and old residents. Id. at 632-33.

Next, the Court concluded that the administrative reasons given for the one year waiting period requirement were not compelling. First, the Court rejected the argument that the one year requirement facilitates the planning of the welfare budget because the record was "utterly devoid of evidence" that the jurisdictions in fact used the one year requirement as a means to predict the number of people who will require assistance in the budget year.

Second, the Court rejected the argument that the one year waiting period provides an objective test of residency because, noting that "residence" is conventionally defined as the intent to remain in the jurisdiction, the Court concluded that the one year waiting period and the residence requirement "are distinct and independent prerequisites for assistance under these three statutes ...." Id. at 636 and n.16.

Third, the Court rejected the argument that the one year waiting period acted as a safeguard against fraudulent receipt of benefits because "less drastic means are available, and are employed, to minimize that hazard." Id. at 637.

Fourth, addressing the argument that the one year waiting period was justified as a means of encouraging new residents to join the labor force promptly, the Court stated, "A state purpose to encourage employment provides no rational basis for imposing a one-year waiting period restriction on new residents only." Id. at 637-38.

The threshold question is whether the 60 day waiting period penalizes an individual's right to travel such that it must be shown that the waiting period promotes a "compelling" state interest under the strict scrutiny standard. We conclude that, contrary to the circuit court's finding, the 60 day waiting period does not penalize an individual's right to travel and therefore the traditional equal protection standard, not strict scrutiny, should be applied such that "equal protection is denied only if the classification is 'without any reasonable basis.' " Id. at 638 n.20.

While Shapiro makes clear that a one year waiting period serves to penalize the exercise of the right to travel, it is by no means clear that a 60 day waiting period similarly penalizes such right. The unsettled nature of the degree to which a durational residency requirement must impinge upon the right to travel to be unconstitutional was recognized by the Court five years after Shapiro in Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974):

Although any durational residence requirement impinges to some extent on the right to travel, the Court in Shapiro did not declare such a requirement to be per se unconstitutional. The Court's holding was conditioned, 394 U.S., at 638 n.21, by the caveat that some "waiting-period or residence requirements . . . may not be penalties upon the exercise of the constitutional right of interstate travel." The amount of impact required to give rise to the compelling-state-interest test was not made clear.

Memorial Hospital, 415 U.S. at 256-57 (emphasis added in part and footnote omitted).³

Memorial Hospital held that Arizona's law providing that indigent persons must have resided within the respective county for one year to be eligible for free non-emergency medical care was unconstitutional. However, other than conclude that medical care is at least as much a basic necessity of life to an indigent as welfare, the Court did not further clarify the amount of impact necessary to give rise to the compelling state interest standard:

Whatever the ultimate parameters of the Shapiro penalty analysis, it is at least clear that medical care is as much "a basic necessity of life" to an indigent as welfare assistance.

Memorial Hospital, 415 U.S. at 259.⁴

Given that the Supreme Court itself recognizes the unsettled nature of the amount of impact necessary to give rise to the compelling state interest standard, and that the parameters of Shapiro's penalty analysis admittedly remain undefined, we conclude that because the 60 day waiting period at issue here is so substantially less onerous than the one year waiting period of Shapiro, that it does not operate to penalize an individual's right to travel.⁵

Because we conclude that the 60 day waiting period requirement does not operate as a penalty upon an individual's right to travel, we review the constitutionality of the statute under the traditional equal protection analysis such that the classification will fail equal protection analysis "only if the classification is 'without any reasonable basis.' " Shapiro, 394 U.S. at 638 n.20.

Milwaukee County offers several governmental objectives furthered by the 60 day requirement. It asserts that the state has a legitimate interest in "preserving the public fisc" and in "conserving scarce taxpayers' funds." It asserts that "A municipality should not be required to encourage those who would precipitously alter their situation in life without giving any thought to whether there is any reasonable prospect that they will be able to support themselves." It asserts that the state may legitimately impose a reasonable durational residency requirement "to establish the bona fides of an applicant's residency." It asserts that the durational residency requirement "promotes the state's legitimate interests in preventing fraud and payments from multiple jurisdictions to the same applicant for the same period of time."

We remain cognizant of Shapiro's conclusion that protecting the fiscal integrity of state public assistance programs by conserving taxpayer funds via deterring migration is constitutionally impermissible; that, insofar as a one year waiting period is concerned, establishing an objective test of residency or preventing fraud are not compelling governmental interests; and that encouraging employment provides no rational basis for imposing a one year waiting period.

Nevertheless, we note that Shapiro was decided in the context of a durational requirement that penalized the right to travel. In the context of welfare eligibility requirements that do not penalize the right to travel, the objective of encouraging employment has been upheld as a reasonable governmental objective.

In Dandridge v. Williams, 397 U.S. 471 (1970), a case decided only one year after Shapiro, the Court upheld Maryland's maximum grant regulation which placed a ceiling on the amount of benefits payable to a family under AFDC (Aid to Families with Dependent Children).

Applying the traditional equal protection standard, the Court in Dandridge 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."

Dandridge, 397 U.S. at 485.

In the context of a welfare eligibility requirement that did not penalize the right to travel, the Court in Dandridge did not conclude that the objective of encouraging employment was unreasonable. In fact, that objective was one of the very reasons the Court upheld Maryland's grant ceiling:

We need not explore all the reasons that the State advances in justification of the regulation. It is enough that a solid foundation for the regulation can be found in the State's legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of the working poor.

Dandridge, 397 U.S. at 486.

Similarly, encouraging employment is a very real and practical objective in the case at hand. Milwaukee County specifically asserted in its brief that, "A municipality should not be required to encourage those who would precipitously alter their situation in life without giving any thought to whether there is any reasonable prospect that they will be able to support themselves." Such assertion has the practical import of encouraging those migrating to Wisconsin to seek employment so as to support themselves.

While it may well be true that the 60 day waiting period does not classify persons with perfection in that long time residents are not encouraged to seek employment to the exact same degree as newcomers, perfection or mathematical nicety is not required by the equal protection clause. Dandridge, 397 U.S. at 485.

Lastly, while we are not unsympathetic to the situation of individuals seeking to establish themselves in Wisconsin, we recognize that ours is not to pass judgment as to the wisdom of the legislature. To quote Dandridge:

We do not decide today that the Maryland regulation is wise, that it best fulfills the relevant social and economic objectives that Maryland might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. The Constitution may impose certain procedural safeguards upon systems of welfare administration. But the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.

Dandridge, 397 U.S. at 487.

We conclude that Wisconsin's 60 day waiting period does not penalize an individual's right to travel. Applying the traditional equal protection analysis, we conclude that Wisconsin's objective of encouraging individuals to support themselves through employment is reasonable and that the 60 day waiting period is rationally related to that objective.

We therefore hold that the 60 day waiting period, as provided in sec. 49.015, Stats., does not violate either the United States or Wisconsin Constitutions.

By the Court. — The decision of the circuit court is reversed.

1 Noting that the due process and equal protection clauses of the Wisconsin and United States Constitutions are substantial equivalents, State v. McManus, 152 Wis. 2d 113, 130, 447 N.W.2d 654 (1989), the circuit court found that sec. 49.015, Stats., violated both the United States and Wisconsin Constitutions.

2 During the 1986-87 legislative session, the legislature renumbered and amended sec. 49.015, Stats. Section 49.015(2)(a)-(d) is now sec. 49.015(1)(b)1-4. See 1987 Wis. Act. 27, section 949g. Section 49.015(3), Stats., was repealed, see 1987 Wis. Act. 27, section 951m, and 49.015(4), Stats., was initially renumbered as 49.015(1)(d), Stats., see 1987 Wis. Act. 27, section 952, then subsequently renumbered as 49.015(3), Stats., see 1987 Wis. Act. 399, section 149r.

3 Shapiro's footnote 21 to which Memorial Hospital refers, states:

We imply no view of the validity of waiting-period or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth. Such requirements may promote compelling state interests on the one hand, or, on the other, may not be penalties upon the exercise of the constitutional right of interstate travel.

Shapiro, 394 U.S. at 638 n.21.

4 Similarly, other cases addressing durational residency requirements have not clarified the amount of impact necessary to give rise to the compelling state interest standard. See Dunn v. Blumstein, 405 U.S. 330 (1972) (Court struck down Tennessee law providing that to vote, a person must have been a resident of the state for one year and a resident of the county for three months); Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986) (Court struck down New York law giving civil service employment preference to military veterans who were New York residents at the time of joining).

5 While the central question is whether the 60 day waiting period penalizes an individual's right to travel, Attorney General James E. Doyle, in his Amicus Brief supporting the constitutionality of the statute, discusses several other factors which pointedly distinguish the statutes in Shapiro from sec. 49.015, Stats. First, unlike the statutes in Shapiro, sec. 49.015, Stats., in no way implicates an individual's benefits under the federal Aid to Families with Dependent Children (AFDC) program. Second, unlike the statutes in Shapiro, sec. 49.015(2)(a)-(d), Stats., contains four exceptions making the 60 day waiting period inapplicable where: (1) the person was born in this state, (2) the person has, in the past, resided in Wisconsin for at least 365 days, (3) the person came to Wisconsin to join a close relative who has resided in Wisconsin for at least 180 days before the arrival of the person, and (4) the person came to Wisconsin to accept a bona fide offer of employment and the person was eligible for employment. Third, unlike the statutes in Shapiro, sec. 49.015(3)-(4), Stats., provides an exception available in cases of medical emergency and cases of unusual misfortune or hardship.