State of New York
Supreme Court : County of Monroe

- against -

Index No. 98/2903

ANDREW V. SIRACUSE, J.

In Brown v Wing (170 Misc2d 554, affd for reasons stated 241 AD2d 956) this Court was called upon to determine the constitutionality of a law requiring six months' residence in New York before eligibility for state welfare benefits. It held that the statute placed an impermissible barrier on the right to travel between states, protected by the United States Constitution, and that it also violated the state constitutional mandate to aid the needy, a mandate which carries with it the obligation to treat all needy residents equally (Tucker v Toia, 43 NY2d 1). The court also certified the plaintiffs in Brown to act as representatives of the class of all those affected by the statute. After the Appellate Division's unanimous affirmance for the reasons stated in this court's decision, the Legislature, in L 1998 ch 436 (B) (6), once again amended the Social Services Law. The Social Service Law has long defined residency as presence in New York State for twelve continuous months, and subsection (3)(a) currently states:

Notwithstanding any other provision of law, no public assistance benefits shall be paid to or for any person who is not a resident of the state as provided in this article, except that assistance be provided to a person who is otherwise eligible during the first twelve months in the state at a rate not exceeding the higher of fifty percent of the amount otherwise payable or the standard of need applicable to the person under the laws of the state, if any, in which he or she resided immediately prior to arrival in this state, but under no circumstances may such allowances exceed the amounts payable to a resident under this chapter; and no assistance shall be provided for any alien who is not a resident of the state, as provided in this article, except as set forth in paragraph (b) of this section and except persons domiciled in the state on the effective date of this section. For purposes of this section, the standard of payment applicable in another state shall refer to a schedule of comparative grants to be promulgated biennially, setting forth the amount of that state's maximum standard of payment with respect to each such program, if any, for each household size for any state which financially participates in or mandates a program under title IV-A of the federal social security act or a general assistance or disability assistance program.

Plaintiff Jane Doe has challenged this provision as facially unconstitutional, both for herself and on behalf of any others who may be or are affected.

This statute bears a striking resemblance to the earlier section 131-a(3)(d), at issue in Brown. That section had guaranteed the level of benefits available in the state of previous residence but provided for no benefits at all if that state had no non-federal welfare program. Under the prior law, then, emigrants from those states would have received no benefits for six months and then full New York benefits for the next six. Under the current law those same people would receive half the New York level of benefits for a twelve-month period. The difference seems chimerical. An even earlier statute with a sunset provision, which resembles the present statute yet more closely but for a minimum of 80 percent of New York benefits instead of 50 percent, was declared unconstitutional in Aumick v Bane (161 Misc2d 271); and, although it was not necessary for the holding in Brown, this court echoed Aumick in dicta, noting that "[a] statute which reduces benefits for some of the needy is as much an unconstitutional classification as one that eliminates them altogether; in Matter of Lee v. Smith, 43 N.Y2d 453, the petitioners were not completely deprived of assistance, but the controlling statute was nonetheless found to be unconstitutional" (170 Misc2d 554, 562-563).

A preliminary motion in this case was addressed in a decision of this court dated May 14, 1998. It is now ready for a disposition on the merits, and the court has no hesitation in declaring the present statute unconstitutional for the same reasons it found persuasive in Brown. Indeed, as a superior court has affirmed the Brown decision for reasons stated, that earlier decision is now compelling authority unless the statute in question were distinguishable from the earlier one.

The Attorney General's arguments, however, are not directed to any significant differences between the present statute and the one at issue in Brown. Instead, the claims are made that (1) the statute does not implicate the right to travel, and thus is to be weighed by the rational relation test rather than be subjected to strict scrutiny; (2) the statute bears a rational relation to the aims sanctioned by recent Federal welfare reform legislation, and (3) the statute is not intended to penalize migrants or inhibit entry into New York but serves to determine which people are bona fide new residents and which are only transients.

It is clear that these arguments could have been raised with respect to the earlier statute found unconstitutional in Brown, with the exception of the second. Indeed, the third of them was raised by the Attorney General before the Appellate Division, and the present brief maintains the argument, repeatedly rejected, that the right to travel could not have been affected since the plaintiff concededly moved to New York in spite of the law. These arguments are without weight in any event. This court applied the strict scrutiny standard in Brown and so have the vast majority of courts which have considered similar legislation. Unless and until the Court of Appeals decides otherwise, strict scrutiny remains the standard this court must apply, and by that standard the present statute is clearly unconstitutional. It is worth noting, as well, that even those few courts that have applied the more lenient rational relationship test to welfare residency requirements have inavalidated the laws in question (see, Maldonado v Houstoun, 177 FRD 311 [ED Pa], cited by defendant; Westenfelder v Ferguson, 998 F.Supp. 146 [RI DC], also cited by defendants, in fact found that strict scrutiny was the correct standard [at 155], citing, among others, Brown v Wing). The Attorney General's argument suggests that a partial reductions of benefits is no penalty, when compared to the total reduction invalidated in Brown. As noted above, this is a distinction without a difference. Indeed, the net effect of the two statutes is exactly the same -- the present statute imposes only half the reduction in benefits but maintains it for twice as long.

The defendant's appeal to the federal welfare reform legislation is puzzling. The issue here is the constitutionality of a statute. The welfare reform act did not amend the Constitution, nor could it have. Legislative policy pronouncements and ordinary legislation have no authority to abrogate the guarantees of the Constitution itself.

Finally, the argument that the statute merely sets out a slightly more rigorous test to determine the residency status of applicants is refuted by a line of cases, cited by plaintiff, that have held that "residence, for purposes of the Social Services Law, must be determined by reference to the same criteria as are used to determine domicile" (Ruiz v Lavine, 49 AD2d 1 [4th Dept], citing Matter of Corr v. Westchester County Dept. of Social Services, 33 NY2d 111, 115­117). The seminal case from the Court of Appeals, Matter of Corr (supra), rejected the idea that there could be a separate definition of residence for matters of public assistance, holding:

Assuming petitioner established a residence in [New York], the United States Supreme Court has held that qualification for assistance may not be conditioned on any minimum period of residence. In Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed2d 600, State statutes denying public assistance to those who had not resided in the States for at least one year were held to violate the Equal Protection Clause of the Fourteenth Amendment and infringe upon the constitutional right to travel freely among the States (33 NY2d at 116).

It is clear that this holding harmonizes with only one conclusion to the suit at hand: that this statute, like the one in Brown, is an unconstitutional violation of the right to travel and violates as well the state constitutional requirement to aid the needy. The repeated passage by the legislature of virtually identical statutes that are unanimously found to be unconstitutional provides added support to the plaintiff's argument that a class action is better suited to protect the rights of welfare recipients than the rule of stare decisis, and the proposed class is hereby certified (cf., Matter of Jones v. Berman, 37 NY2d 42, 57). In addition, the class is entitled to a determination that Social Services Law § 117 (e) (3) is unconstitutional. As it is uncontested that this section has not yet been enforced there are no damages payable to any of the members of the class, but an application for attorneys' fees under CPLR Article 86 will be entertained. Counsel for the plaintiff may prepare the order.

DATED: Rochester, New York

July 30, 1998

Andrew V. Siracuse, J.S.C.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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