Attorney General's Opinion
Attorney General, Richard Blumenthal
May 10, 1991
Dr. Andrew McKirdy
Executive Director
Board of Trustees of
Community Technical Colleges
61 Woodland Street
Hartford, CT 06105
Dear Dr. McKirdy:
We are writing in response to your letter dated January 9, 1991, in which you request our advice about the constitutionality of the residency requirement contained in Conn. Gen. Stat. § 10a-77(d)(2), a statute concerning tuition waives for eligible veterans. In an opinion issued on April 11, 1990, we concluded that the residency requirements and waiting periods contained in three statutes concerning veteran benefits (Conn. Gen. Stat. 27-103, 27-104, and 27-122b) are unconstitutional. You are asking whether, in light of that opinion, the residency requirement contained in Section 10a-77(d) is also unconstitutional. For the reasons discussed below, it is our opinion that it is.
The statute in question requires the Board of Trustees of Community-Technical Colleges to waive tuition for veterans who served during time of war and have been accepted for admission, provided the veteran was a Connecticut resident when he entered the service or as a Connecticut resident while serving and is a resident at the time he is accepted for admission. Thus, any veteran who establishes residence in Connecticut after serving in the armed forced during time of war is not and never will be eligible for the tuition waiver mandated by Section 10a-77(d)(2).
Residency requirements which simply distinguish between residents and nonresidents are permissible. Residency requirements which treat established residents differently depending upon when they moved into the state raise constitutional questions based on the right to equal protection of the laws. Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986). Our opinion of last year provided a thorough review of the equal protection analysis to which residency requirements have been subjected by the United States Supreme Court. for purposes of the immediate response we will summarize our earlier analysis and attach a copy of our 1990 opinion for your reflection.
An equal protection challenge to a statute or regulation basically asserts that similarly situated citizens are being treated differently and demands that the state justify its reasons for enacting a law that classifies people. The usual standard for reviewing law challenged on equal protection grounds is the "rational basis" test. However, where a law classifies by race, alienage or national origin or in a manner that infringes upon a constitutionally protected fundamental right, it is subjected to so-called "strict scrutiny."
As a general rule, whether a statute is subjected to strict scrutiny or the rational basis test is a matter of critical importance. Strict scrutiny places upon the state the heavy burden of demonstrating that a compelling state interest is being served by the statute under challenge. By way of contrast, the rational basis test requires the state to show that the statute is rationally related to a legitimate state interest and deference has traditionally been given to the rationale a state puts forth.
Thus, a threshold question in any equal protection challenge is whether a fundamental right or a suspect classification is implicated. Statutes containing a residency requirement classify on the basis of the date that someone moves into the state. Although the Supreme Court has consistently recognized a constitutional right to interstate travel, recent decisions by the court have differed as to whether the right to travel is a fundamental right independent of the equal protection clause or simply one aspect of the equal protection clause. As a result, the standard of review, i.e., strict scrutiny or the rational basis test, has differed from case to case.
Our analysis of the Supreme Court's recent decisions led us to conclude that, in general, where the benefits at stake in a statute containing a residency requirement related to the "basic necessities of life", the Court subjected the statute to strict scrutiny since the fundamental right to travel was implicated. See Shapiro v. Thompson, 394 U.S. 618 (1968) (invalidating statutes denying welfare benefits to residents who had not resided in the state for at least a year); Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974) (invalidating statute requiring a year's residency as a condition for receiving nonemergency medical care at public expense). Where the statute under challenge involves benefits that do not rise to the level of "basic necessities", the Court has employed the "rational basis" test. See Hooper v. Bernallillo County Assessor, 472 U.S. 612 (1985) (invalidating statute providing modest property tax exemption to veterans who were New Mexico residents before May 8, 1976); Zobel v. Williams, 457 U.S. 55 (1982) (overturning Alaska statute allocating among its residents a portion of petroleum revenues on the basis of length of residence in state).
However, there is no "bright line" test in determining whether a statute containing a residency requirement implicates the fundamental right to travel and warrants heightened scrutiny by the court. In Soto-Lopez, the Court invalidated a New York civil service rule giving bonus points on state civil service examinations to veterans who were New York residents when they entered the military. A plurality of the Court applied strict scrutiny after describing the benefit as "unquestionably substantial"; two concurring opinions concluded that strict scrutiny was not triggered but that the law failed to survive the "rational basis" test. In any event, the law failed to survive an equal protection challenge.
Our analysis of recent Supreme Court decisions on residency requirements led us tot he conclusion that, in this area, no state has been able to advance either a compelling interest or even any legitimate state objective to which the statutes in question were rationally related. As a result, we concluded that the three statutes concerning veteran benefits could not survive an equal protection challenge under either the strict scrutiny or the rational basis test.
Our opinion of April 11, 1990 found the residency requirement of Section 27-140 to be unconstitutional. That requirement is similar to the one found in Section 10a-77(d)(2) in that it limited eligibility for certain benefits to war-time veterans who were Connecticut citizens at the time they entered the armed forces. We concluded that it could not survive the "rational basis test" any more than it could survive strict scrutiny.
The residency requirement of Section 10a-77(d)(2) is nearly identical to that found in section 27-140. Although the benefit in question may not relate to the basic necessities of life that seem to trigger strict scrutiny, it is a least as significant as the modest property tax exemption, the civil service bonus points and the petroleum fund dividends at issue in laws struck down under the rational basis test. Finally, we still cannot discern any legitimate state objective to which the statute would be rationally related that has not already been rejected by the court.
We conclude, therefore, that the residency requirement in Conn. Gen. Stat. § 10a-77(d) is unconstitutional.
Very truly yours,
RICHARD BLUMENTHAL
ATTORNEY GENERAL
Bernard F. McGovern, Jr.
Assistant Attorney General
RB/BFM/mu