Annotation 33 - Fourteenth Amendment

The Right to Travel

Durational Residency Requirements .--A durational residency requirement creates two classes of persons: those who have been within the State for the prescribed period and those who have not been. 1 But persons who have moved recently, at least from State to State, 2 have exercised a right protected by the Constitution of the United States, and the durational residency classification either deters the exercise of the right or penalizes those who have exercised the right. 3 Any such classification is invalid ''unless shown to be necessary to promote a compelling governmental interest.'' 4 The constitutional right to travel has long been recognized, 5 but it is only relatively recently that the strict standard of equal protection review has been applied to nullify those durational residency provisions which have been brought before the Court.

Thus, in Shapiro v. Thompson, 6 durational residency requirements conditioning eligibility for welfare assistance on one year's residence in the State 7 were voided. If the purpose of the requirements was to inhibit migration by needy persons into the State or to bar the entry of those who came from low-paying States to higher- paying ones in order to collect greater benefits, the Court said, the purpose was impermissible. 8 If on the other hand the purpose was to serve certain administrative and related governmental objectives--the facilitation of the planning of budgets, the provision of an objective test of residency, minimization of opportunity for fraud, and encouragement of early entry of new residents into the labor force--the requirements were rationally related to the pur pose but they were not compelling enough to justify a classification which infringed on a fundamental interest. 9 Similarly, in Dunn v. Blumstein, 10 where the durational residency requirements denied the franchise to newcomers, the assertion of such administrative justifications was constitutionally insufficient to justify the classification.

However, a state one-year durational residency requirement for the initiation of a divorce proceeding was sustained in Sosna v. Iowa. 11 While it is not clear what the precise basis of the ruling is, it appears that the Court found that the State's interest in requiring that those who seek a divorce from its courts be genuinely attached to the State and its desire to insulate divorce decrees from the likelihood of collateral attack justified the requirement. 12 Similarly, durational residency requirements for lower in-state tuition at public colleges have been held constitutionally justifiable, again, however, without a clear statement of reason. 13  

A state scheme for returning to its residents a portion of the income earned from the vast oil deposits discovered within Alaska foundered upon the formula for allocating the dividends; that is, each adult resident received one unit of return for each year of residency subsequent to 1959, the first year of Alaska's statehood. The law thus created fixed, permanent distinctions between an ever-in creasing number of classes of bona fide residents based on how long they had been in the State. The differences between the durational residency cases previously decided did not alter the bearing of the right to travel principle upon the distribution scheme, but the Court's decision went off on the absence of any permissible purpose underlying the apportionment classification and it thus failed even the rational basis test. 14  

Unresolved still are issues such as durational residency requirements for occupational licenses and other purposes. 15 Too, it should be noted that this line of cases does not apply to state residency requirements themselves, as distinguished from durational provisions, 16 and the cases do not inhibit the States when, having reasons for doing so, they bar travel by certain persons. 17  


[Footnote 1] Dunn v. Blumstein, 405 U.S. 330, 334 (1972). Inasmuch as the right to travel is implicated by state distinctions between residents and nonresidents, the relevant constitutional provision is the privileges and immunities clause, Article IV, Sec. 2, cl. 1.

[Footnote 2] Intrastate travel is protected to the extent that the classification fails to meet equal protection standards in some respect. Compare Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970) (three-judge court), aff'd. per curiam, 405 U.S. 1035 (1972), with Arlington County Bd. v. Richards, 434 U.S. 5 (1977). The same principle applies in the commerce clause cases, in which discrimination may run against in-state as well as out-of-state concerns. Cf. Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951).

[Footnote 3] Shapiro v. Thompson, 394 U.S. 618, 629 -31, 638 (1969); Dunn v. Blumstein, 405 U.S. 330, 338 -42 (1972); Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974); Jones v. Helms, 452 U.S. 412, 420 -21 (1981). See also Oregon v. Mitchell, 400 U.S. 112, 236 -39 (1970) (Justices Brennan, White, and Marshall), and id. at 285-92 (Justices Stewart and Blackmun and Chief Justice Burger).

[Footnote 4] Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (emphasis by Court); Graham v. Richardson, 403 U.S. 365, 375 -76 (1971).

[Footnote 5] Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868); Edwards v. California, 314 U.S. 160 (1941) (both cases in context of direct restrictions on travel). The source of the right to travel and the reasons for reliance on the equal protection clause are questions puzzled over and unresolved by the Court. United States v. Guest, 383 U.S. 745, 758 , 759 (1966), and id. at 763-64 (Justice Harlan concurring and dissenting), id. at 777 n.3 (Justice Brennan concurring and dissenting); Shapiro v. Thompson, 394 U.S. 618, 629 -31 (1969), and id. at 671 (Justice Harlan dissenting); San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 31 -32 (1973); Jones v. Helms, 452 U.S. 412, 417 - 19 (1981); Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at 66-68 (Justice Brennan concurring), 78-81 (Justice O'Connor concurring).

[Footnote 6]   394 U.S. 618 (1969).

[Footnote 7] The durational residency provision established by Congress for the District of Columbia was also voided. Id. at 641-42.

[Footnote 8] Id. at 627-33. Gaddis v. Wyman, 304 F. Supp. 717 (N.D.N.Y. 1969), aff'd sub nom. Wyman v. Bowens, 397 U.S. 49 (1970), struck down a provision construed so as to bar only persons who came into the State solely to obtain welfare assistance.

[Footnote 9]   394 U.S. at 633 -38. Shapiro was reaffirmed in Graham v. Richardson, 403 U.S. 365 (1971) (striking down durational residency requirements for aliens applying for welfare assistance), and in Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974) (voiding requirement of one year's residency in county as condition to indigent's receiving nonemergency hospitalization or medical care at county's expense). When Connecticut and New York reinstituted the requirements, pleading a financial emergency as the compelling state interest, they were summarily rebuffed. Rivera v. Dunn, 329 F. Supp. 554 (D. Conn. 1971), aff'd per curiam, 404 U.S. 1054 (1972); Lopez v. Wyman, Civ. No. 1971-308 (W.D.N.Y. 1971), aff'd per curiam, 404 U.S. 1055 (1972). The source of the funds, state or federal, is irrelevant to application of the principle. Pease v. Hansen, 404 U.S. 70 (1971).

[Footnote 10]   405 U.S. 330 (1972). But see Marston v. Lewis, 410 U.S. 679 (1973), and Burns v. Fortson, 410 U.S. 686 (1973). Durational residency requirements of five and seven years respectively for candidates for elective office were sustained in Kanapaux v. Ellisor, 419 U.S. 891 (1974), and Sununu v. Stark, 420 U.S. 958 (1975).

[Footnote 11]   419 U.S. 393 (1975). Justices Marshall and Brennan dissented on the merits. Id. at 418.

[Footnote 12] Id. at 409. But the Court also indicated that the plaintiff was not absolutely barred from the state courts, but merely required to wait for access (which was true in the prior cases as well and there held immaterial), and that possibly the state interests in marriage and divorce were more exclusive and thus more immune from federal constitutional attack than were the matters at issue in the previous cases. The Court also did not indicate whether it was using strict or traditional scrutiny.

[Footnote 13] Starns v. Malkerson, 326 F. Supp. 234 (D.Minn. 1970), aff'd per curiam, 401 U.S. 985 (1971). Cf. Vlandis v. Kline, 412 U.S. 441, 452 & n.9 (1973), and id. at 456, 464, 467 (dicta). In Memorial Hospital v. Maricopa County, 415 U.S. 250, 256 (1974), the Court, noting the results, stated that ''some waiting periods . . . may not be penalties'' and thus would be valid.

[Footnote 14] Zobel v. Williams, 457 U.S. 55 (1982). Somewhat similar was the Court's invalidation on equal protection grounds of a veterans preference for state employment limited to persons who were state residents when they entered military service; four Justices also thought the preference penalized the right to travel. Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986).

[Footnote 15] La Tourette v. McMaster, 248 U.S. 465 (1919), upholding a two-year residence requirement to become an insurance broker, must be considered of questionable validity. Durational periods for admission to the practice of law or medicine or other professions have evoked differing responses by lower courts.

[Footnote 16] E.g., McCarthy v. Philadelphia Civil Service Comm'n, 424 U.S. 645 (1976) (ordinance requiring city employees to be and to remain city residents upheld). See Memorial Hospital v. Maricopa County, 415 U.S. 250, 255 (1974). See also Martinez v. Bynum, 461 U.S. 321 (1983) (bona fide residency requirement for free tuition to public schools).

[Footnote 17] Jones v. Helms, 452 U.S. 412 (1981) (statute made it a misdemeanor to abandon a dependent child but a felony to commit the offense and then leave the State).

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