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November 8, 1967

Minnie HARRELL et al., Plaintiffs, Clay Mae LeGrant, Plaintiff-Intervenor,
Walter N. TOBRINER et al., Defendants. Vera M. BARLEY et al., Plaintiffs, v. Walter N. TOBRINER et al., Defendants. Gloria Jean BROWN et al., Plaintiffs, Clay Mae LeGrant, Plaintiff-Intervenor, v. Walter N. TOBRINER et al., Defendants

The opinion of the court was delivered by: FAHY

FAHY, Circuit Judge.

 Plaintiffs and intervenor, *fn1" all now to be referred to as plaintiffs, in slightly differing factual situations applied for public assistance under the District of Columbia Public Assistance Act of 1962, Title 3, Chapter 2, D.C.Code (1967). Defendants, who have official responsibility in the matter, denied the applications. The sole ground of denial was that plaintiffs and the minor children on whose behalf they sought aid had not complied with the residence requirements of D.C.Code § 3-203(a)(b) (1967), set forth in the margin insofar as pertinent to this case, *fn2" and with the regulations promulgated pursuant to the statute. Plaintiffs seek relief by declaratory judgments and injunctions against enforcement by defendants of such residence requirements. *fn3" The complaints proceed on two theories, first, that Section 3-203 vests a discretion in the defendants to disregard the one-year residence requirements and they have not exercised such discretion, and, second, that if there is no such discretion the one-year residence requirements of Section 3-203 are constitutionally invalid.

 This three-judge District Court was convened pursuant to 28 U.S.C. § 2282 *fn4" and was composed under the provisions of 28 U.S.C. § 2284.

 On September 11, 1967, after argument, we granted the motion of plaintiffs for a preliminary injunction pendente lite or until the further order of the court. *fn5" We accompanied our order with Findings of Fact and Conclusions of Law, the findings setting forth in detail the factual situation of each plaintiff, which still prevails in essential respects. The matter is decided now on motions for summary judgment submitted by both plaintiffs and defendants, enabling us to decide the merits, there being no genuine issues of material fact requiring an evidentiary hearing.


 We agree with defendants that Section 3-203 does not grant defendants a discretion to disregard the one-year residence requirements applicable to plaintiffs. This construction is supported not only by the language of the statute but also by its legislative history. The Senate District of Columbia Committee in its Report on the Act stated that one of the congressional purposes was to


(c) Make uniform in all categories a 1-year residence requirement for public assistance eligibility. (S.Rep. No. 844, 87th Cong., 1st Sess. (1961).)

 The administrators of the program have consistently interpreted the statute as the legislative history thus indicates Congress intended, that is, that the language "public assistance shall be awarded" to those who meet the one-year conditions means that the assistance is not to be granted unless those conditions are met. This consistent and reasonable interpretation by those charged with the duty of administering the statute is entitled to great weight. Zemel v. Rusk, 381 U.S. 1, 11, 85 S. Ct. 1271, 14 L. Ed. 2d 179; Udall v. Tallman, 380 U.S. 1, 16, 85 S. Ct. 792, 13 L. Ed. 2d 616; United States v. American Trucking Associations, 310 U.S. 534, 549, 60 S. Ct. 1059, 84 L. Ed. 1345. Moreover, we independently interpret the language used by Congress in like manner. It becomes our duty therefore to decide the validity of the challenged parts of the statute as so construed. *fn6"

  A court approaches its responsibility of passing upon the constitutional validity of an Act of Congress aware that Congress also interprets the Constitution. This is so even though Congress' judgment is manifested, as in the present case, merely by passage of the legislation rather than by explicit treatment of the constitutional question. Moreover, as Mr. Justice Goldberg stated for the Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159, 83 S. Ct. 554, 562, 9 L. Ed. 2d 644:


Since the validity of an Act of Congress is involved, we begin our analysis mindful that the function we are now discharging is "the gravest and most delicate duty that this Court is called upon to perform." Blodgett v. Holden, 275 U.S. 142, 148, 48 S. Ct. 105, 107, 72 L. Ed. 206, 276 U.S. 594 (separate opinion of Holmes, J.). This responsibility we here fulfill with all respect for the powers of Congress, but with recognition of the transcendent status of our Constitution.

 In Trop v. Dulles, 356 U.S. 86, 103-104, 78 S. Ct. 590, 599-600, 2 L. Ed. 2d 630, Mr. Chief Justice Warren has stated the matter as it must be considered:


The provisions of the Constitution are not time-worn adages or hollow shibboleths. They are vital, living principles that authorize and limit governmental powers in our Nation. They are the rules of government. When the constitutionality of an Act of Congress is challenged in this Court, we must apply those rules. If we do not, the words of the Constitution become little more than good advice.


When it appears that an Act of Congress conflicts with one of these provisions, we have no choice but to enforce the paramount command of the Constitution. We are sworn to do no less. * * * We do well to approach this task cautiously, as all our predecessors have counseled. But the ordeal of judgment cannot be shirked.

 In line with the caution thus admonished, applicable to us certainly no less than to the Supreme Court, we should construe the challenged portions of Section 3-203 so as to avoid a serious constitutional question if reasonably able to do so. United States v. Rumely, 345 U.S. 41, 45, 73 S. Ct. 543, 97 L. Ed. 770. But it seems clear to us that Congress intended to impose one-year residence requirements as conditions, similar to conditions prevailing in numerous other jurisdictions. There is no evidence of a congressional intent to depart from a rather widespread legislative pattern in this area. This pattern lends support to defendants' interpretation of Section 3-203 as precluding a discretion on their part to disregard the requirements. Our agreement with defendants' interpretation requires us to reach the constitutional question.

 Any weight the legislative pattern gives to defendants' constitutional position, however, as distinguished from their statutory interpretation, we think is overcome by considerations which stem primarily from the equal protection of the laws guaranteed by the Fourteenth Amendment and applicable to this jurisdiction by reason of the Due Process Clause of the Fifth Amendment. *fn7"

 Notwithstanding the frequent use of such a residence condition, only recently has it come before federal courts for decision as to its validity. Nine federal judges, in three separate cases, with one judge dissenting, have recently considered the constitutional questions involved. Thompson v. Shapiro, 270 F. Supp. 331 (a three-judge District Court of the District of Connecticut); Green v. Department of Public Welfare, 270 F. Supp. 173 (a three-judge District Court of the District of Delaware); and Smith v. Reynolds, 277 F. Supp. 65 (a three-judge District Court of the Eastern District of Pennsylvania). In Thompson and Green the residence requirements, respectively, of Connecticut and Delaware, were held unconstitutional. In Smith v. Reynolds a final decision has not been reached, but enforcement of such a requirement in Pennsylvania has been enjoined preliminarily on constitutional grounds.

 In Thompson the court first concluded the provision constituted an arbitrary classification in violation of the Fourteenth Amendment's prohibition against state abridgment of the privilege and immunity of a citizen of the United States to enjoy the liberty to travel interstate. The court relied heavily upon Edwards v. People of State of California, 314 U.S. 160, 62 S. Ct. 164, 86 L. Ed. 119. The court also relied upon a more general liberty of the citizen to travel, upheld by the Supreme Court in the passport cases, including Kent v. Dulles, 357 U.S. 116, 126-127, 78 S. Ct. 1113, 2 L. Ed. 2d 1204, and United States v. Guest, 383 U.S. 745, 759, 86 S. Ct. 1170, 16 L. Ed. 2d 239. The Thompson court said:


the right to travel exists and included within its dimensions is the right to establish residence in Connecticut. Denying to the plaintiff even a gratuitous benefit because of her exercise of her constitutional right effectively impedes the exercise of that right.

 270 F. Supp. at 336.

 Second, the court in Thompson decided that the Equal Protection Clause of the Fourteenth Amendment was violated:


* * * the classifications of one year's residence or a job are not reasonable in light of the purpose of § 17-2d because again there is no showing that those applicants will be lesser burdens than applicants without jobs or one year's residence. Section 17-2d, in brief, violates the equal protection clause because even if its purpose were valid, [to protect the finances of the states] which it is clearly not, the classifications are unreasonable.

 Id. at 338.

 In Green the court, in holding invalid the Delaware one-year requirement for public assistance, said that the test under the Equal Protection Clause was whether the classification based on residence was reasonably related to the purpose of the statute, citing Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485. The court then pointed out that the purpose of the public assistance program was "'to promote the welfare and happiness of all people of the State, by providing public assistance to all of its needy and distressed; that assistance shall be administered promptly and humanely with due regard for the preservation of family life * * *.'" 270 F. Supp. at 177.

 With these purposes in mind the court considered the reasonableness of the one-year residence provision in relation to those purposes, holding,


It is evident to us that as to these families living in Delaware for less than one year the denial of public assistance fails to carry out the stated purposes for the Public Assistance Code. It in fact tends to frustrate them. The residency requirement prevents prompt assistance to some of the State's needy and distressed and to that extent is the antithesis of "humane." It also necessarily results in pressure on the solidarity of the family unit. Nor given these circumstances is it an acceptable answer to say that until they are here one year such persons are not a part of the state's needy and distressed. The discrimination based on length of residency thus finds no constitutional justification in the purpose declared in the statute itself.

 We have given first consideration to the above three-judge District Court cases because they are recent decisions on precisely the same subject and are not decisions of more remote application. We must be certain, however, that they comport with principles established by the Supreme Court. Although the Court has not dealt with this particular situation its decisions in other areas reveal the applicable principles, and to them we now turn.

 In McLaughlin v. State of Florida, 379 U.S. 184, 191, 85 S. Ct. 283, 287, 13 L. Ed. 2d 222, our task in interpreting the Equal Protection Clause is stated as follows:


The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose * * *.

 Carrington v. Rash, 380 U.S. 89, 93, 85 S. Ct. 775, 13 L. Ed. 2d 675, restated this test in exactly the same language.

 In Bates v. City of Little Rock, 361 U.S. 516, 525, 80 S. Ct. 412, 417, 4 L. Ed. 2d 480, a case involving First Amendment rights of association, the Court declared that,


When it is shown that state action threatens significantly to impinge upon constitutionally protected freedom it becomes the duty of this Court to determine whether the action bears a reasonable relationship to the achievement of the governmental purpose asserted as its justification.

 In Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U.S. 150, 155, 17 S. Ct. 255, 257, 41 L. Ed. 666 (1897), the power of classification was recognized as permitted by the Fourteenth Amendment, but the Court added that: "it is equally true that such classification cannot be made arbitrarily."

 More specifically, in Truax v. Raich, 239 U.S. 33, 42, 36 S. Ct. 7, 11, 60 L. Ed. 131 (1915), the Court stated that "reasonable classification implies action consistent with the legitimate interests of the State, * * *"

 A principal purpose of Section 3-203 obviously is to provide public assistance to the needy. Moreover, the immediately preceding section provides that the entire public assistance chapter shall be administered so as to provide the maximum cooperation with other agencies rendering services in order "to maintain and strengthen family life and to help applicants for public assistance and recipients to attain self-support or self-care." D.C.Code § 3-202(b)(1) (1967). These purposes constitute the keystone of the legislation. A bona fide resident of the District of Columbia for six months who is indigent and without the means by which to support herself and her children is no less in need of public assistance than an indigent who has been here for a full year. The basic purposes of the legislation -- public assistance to those in need, maintenance and strengthening of family life, achievement of self-support and self-care -- are not more faithfully served by withholding aid until applicants have lived here for twelve months. Indeed, the denial of assistance for an entire year to otherwise qualified recipients may only erode values which the statute tries to promote. The spread over a year's time of the evils which public assistance seeks to combat may mean that aid, when it becomes available, will be too late: Too late to prevent the separation of a family into foster homes or Junior Villages; too late to heal sickness due to malnutrition or exposure; too late to help a boy from succumbing to crime. *fn8"

 Section 3-203 creates two classes of persons: those who have resided in the District of Columbia for one year or longer, and those who have resided here for less than one year. Although the Supreme Court has recognized that a "legislature is free to make classifications in the application of a statute which are relevant to the legislative purpose," it has emphasized that the "ultimate test of validity is not whether the classes differ but whether the differences between them are pertinent to the subject with respect to which the classification is made." Asbury Hospital v. Cass County, 326 U.S. 207, 214, 66 S. Ct. 61, 65, 90 L. Ed. 6. If a six-month resident is denied the assistance given to a one-year resident, in circumstances in which each is otherwise within the requirements of the statute, the former is denied the equal protection of the law, for the clearly different treatment has no reasonable relation to the basic legislative purposes. The disqualifying requirement applicable to plaintiffs thus engrafts upon the legislation an invalid provision. The same reasons which led the courts in the Thompson and Green cases, and pendente lite in the Smith case, to hold comparable provisions invalid as classifications without a reasonable relation to the purposes of the legislation apply to our cases.


 We consider now arguments which have been urged in support of the residence requirement.

 It is said that Congress in gratuitously providing for assistance may not be held to constitutional standards. The decisions are to the contrary. In Sherbert v. Verner, 374 U.S. 398, 404, 83 S. Ct. 1790, 1794, 10 L. Ed. 2d 965, the Supreme Court held that the fact that "unemployment compensation benefits are not appellant's 'right' but merely a 'privilege'" does not save a statute limiting such rights from "constitutional infirmity." *fn9" There is no indication in our cases that Congress desired unequal protection of the laws. Congress viewed the eligibility provision as justified. Our judicial problem is to determine the reasonableness of the difference in treatment which the challenged requirement imposes upon those in need of public assistance. There is no escape from the proposition that, in carrying forward a comprehensive program of this character, restrictions having no reasonable relationship to the basic purposes of the program are not immune from attack because the Congress was not under legal obligation to inaugurate the program. The Thompson, Green, and Smith cases, to which we have referred in other respects, support this position.

 Defendants also contend that the restriction is reasonable because it is designed to protect this jurisdiction from an influx of persons seeking more generous public assistance than might be available elsewhere. Congress made no finding to that effect. As we have seen, *fn10" the reason for the one-year residence requirement given in the Report of the Senate Committee was uniformity. Assuming, however, that Congress had in mind the protective purpose advanced by defendants, we are reminded that the historical origin of the localized character of public assistance was the Elizabethan Poor Laws. *fn11" These laws enshrined the notion of "settlement," from which the concept of residence descended. Only those who were settled there were entitled to receive relief from a community. No doubt due in large part to the influence of these English laws -- perhaps a subconscious influence -- a number of our state legislatures adopted the idea of a minimum period of residence as a prerequisite to eligibility. But the Supreme Court pointed out more than twenty-five years ago that


the theory of the Elizabethan poor laws no longer fits the facts. Recent years, and particularly the past decade, have been marked by a growing recognition that in an industrial society the task of providing assistance to the needy has ceased to be local in character.

  Edwards v. People of State of California, 314 U.S. 160, 174-175, 62 S. Ct. 164, 167, 86 L. Ed. 119.

 Another difficulty in accepting the protective assumption as giving constitutional support to the challenged provision, is the speculative character of the assumption from a factual standpoint. In 1956, the Deputy Commissioner of Social Welfare of the State of New York, which has not had a minimum period of residence for nearly a century stated that in the preceding year only two per cent of all public assistance recipients had lived in New York for less than one year. *fn12" In 1963, the Moreland Commission on Public Welfare in New York, after a lengthy study of the entire fabric of public assistance, stated that it was opposed to residence requirements on the ground that "the present laws [designed to prevent abuse] are sufficient to protect the taxpayer without penalizing the unfortunate." *fn13" "To assume that people are influenced to move or not to move according to the availability of help on a relief basis is to misunderstand the dynamics of human behavior." *fn14" This is especially true in the United States. A committee of Congress has stated that "[geographical] mobility has always been a habit of the American people." *fn15"

 Even if some citizens do enter a state in order to obtain greater welfare aid, the possibility of this effect, alone, is not in the circumstances sufficient to require the court to sustain the residence condition. As against a similar contention in the Green case, the court interposed the decision of the Supreme Court in Edwards v. People of State of California, supra, saying that such a ground was "a constitutionally impermissible basis for separate state treatment." The court continued:


The protection of the public purse, no matter how worthy in the abstract, is not a permissible basis for differentiating between persons who otherwise possess the same status in their relationship to the State of Delaware.

 Assuming that a provision to prevent abuse of the public assistance program would be valid -- a case of abuse is not before us -- the challenged provision sweeps before it all who have less than the required residence, including bona fide residents who had come to this jurisdiction for reasons disassociated entirely from a desire to obtain relief. This is too broad to be sustained in light of the resulting inequality of treatment:


[Assuming], for the purpose of argument only, that the basic prohibition is constitutional, it does not follow that there is no constitutional limit to the means which may be used to enforce it.

 Oyama v. State of California, 332 U.S. 633, 646-647, 68 S. Ct. 269, 275, 92 L. Ed. 249; and see concurring opinion of Mr. Justice Brennan in Trop v. Dulles, 356 U.S. at 114, 78 S. Ct. at 605, where he discussed the need of legislation to achieve desired ends by alternative methods open to less objection.

 In Thompson, in language particularly applicable to our case, it is said:


[If] there were here a time limit applied equally to all, for the purpose of prevention of fraud, investigation of indigency or other reasonable administrative need, it would undoubtedly be valid. Connecticut's Commissioner of Welfare frankly testified that no residence requirement is needed for any of these purposes.

 270 F. Supp. at 338. *fn16" And see Green, where the desire to avoid payments tainted with fraud or based on insufficient information, which the court said were of course legitimate ends, did not justify the one-year residence requirement, "particularly in view of the consequences to persons in need, * * *" 270 F. Supp. at 177. Whether or not a narrower provision designed to prevent abuse would be valid would of course depend upon its terms. *fn17"

 The choice of twelve months denies plaintiffs the equal protection of the laws because, in a manner inconsistent with the basic purpose of the legislation, it bars them from assistance granted to others. That basic purpose, simply stated, is to aid members of the community who are in need. That the residence requirement serves other purposes -- ease of administration, or discouragement of movement to the jurisdiction -- does not help defendants when the consequence is to defeat the primary purpose of the legislation. Other means to accomplish secondary purposes must be sought. This is especially true when the discrimination perpetuates the conditions the legislation is designed to cure. *fn18"

 It is also said by defendants that Congress in 42 U.S.C. § 602(b), where the basis for the federal contribution to state public assistance programs is set forth, has approved the one-year residence requirements of states. The fact is that Section 602(b) merely provides, in this connection, that the Secretary of Health, Education and Welfare shall not approve any plan which denies aid on the basis of an eligibility requirement of more than a year.

 As to the possibility that the legislature intended to confine assistance to domiciliaries of the jurisdiction and that the one-year residence provides an objective legislative test of such status, the Green court held:


the one year residency requirement prevents many applicants from obtaining assistance even though they are clearly living in Delaware with an intention to remain indefinitely; * * *

 The court left open the question "whether a state could constitutionally confine the benefits of its public assistance programs to its own domiciliaries." We also are not called upon to decide this question, for it is not disputed that the plaintiffs are bona fide domiciliaries of the District who came for reasons disassociated from the desire to obtain relief not elsewhere available. *fn19"

 Finally, it is suggested that if the one-year residence provision is invalidated the whole program falls with it. We hold otherwise. No such result was held to follow in the Thompson, Green and Smith cases. It would not be reasonable to impute such an intention to Congress. Moreover, Section 203 is part of Chapter 2 of Title 3 of the Code, and Section 223 of the chapter conclusively demonstrates Congress entertained no such intention. Section 223 is explicit:


If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of the chapter and the application of such provision to other persons or circumstances shall not be affected thereby.

 Views which support the validity of the one-year condition are well advanced by our dissenting brother, and by Judge Clarie, dissenting in Thompson. We readily acknowledge there is no absolute certainty about the reach of the Equal Protection Clause in this area of the law. "But the ordeal of judgment cannot be shirked." Trop v. Dulles, supra, 356 U.S. at 104, 78 S. Ct. at 600. We are encouraged to make the judgment we do not only by the decisions in Thompson, Green and Smith, but by the over-all salutary action of Congress in entering into the welfare programs of which Section 3-203 is a part. This national movement toward assistance where assistance is needed, and the human terms of the problem, permit the court somewhat greater latitude in deciding that this difference in the treatment of those in our midst who are in need amounts to unequal protection of the laws than if the treatment were with respect to some matter less critical to their living conditions.

 An appropriate judgment will be entered based on our ruling that the one-year residence requirements of Section 3-203(a)(b) of our Code are invalid in application to plaintiffs and those in like circumstances. Counsel for the parties are requested to seek agreement on the form of judgment, taking into consideration any changes in the parties who are defendants due to reorganization of the Government of the District of Columbia.

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