AGO 1990-012.

Case Date:April 11, 1990
Connecticut Attorney General Opinions 1990. AGO 1990-012. April 11, 1990Opinion No. 1990-012Mr. Joseph C. BarberCommissionerDepartment of Veterans' Affairs287 West StreetRocky Hill, Connecticut 06067 Dear Commissioner Barber: We are writing in response to your letter dated February 22, 1990, in which you request our advice about the constitutionality of the residency requirements and waiting periods contained in Conn. Gen. Stat. ee§27-103 and 27-122b, two state statutes concerning veterans' benefits. We are also responding to your oral request, based upon your responsibilities under Conn. Gen. Stat. e27-§102l(c)(4),1 for our opinion on the constitutionality of the residency requirement found in Conn. Gen. Stat. e§27-104, which is contained in Part II of Chapter 506. Whenever the constitutionality of legislative action is questioned, the matter must be approached with great caution and examined with infinite care. 24 Conn. Op. Atty. Gen. 312 (1946). Except in rare cases, it is not the province of the Attorney General to pass upon the constitutionality of an Act which became a law in the prescribed manner. 22 Conn. Op. Atty. Gen. 228, 229 (1941). While it is a basic rule of construction that every reasonable intendment be made in favor of the constitutionality of a statute, if the invalidity of the enactment is clear beyond a reasonable doubt, it is our duty, no matter how delicate the task may be, to advise our client agencies that the statute should not be enforced. See Cahill v. Leopold, 141 Conn. 1, 10 (1954); 16 C.J.S. Constitutional Law e§86. This obligation exists, irrespective of the consequences, no matter how desirable or beneficial the legislation may be. 16 C.J.S. Constitutional Law e§86. For the reasons discussed below, it is our opinion that the residency requirements and waiting periods found in Sections 27-103(b) and 27-122b, which are contained in Part Ia of Chapter 506, are unconstitutional. We also conclude that the residency requirement found in Conn. Gen. Stat. e§27-140 is unconstitutional.I. Veterans' Home and Hospital StatutesThe benefits contained in Part Ia of Chapter 506 all relate to care, treatment and services provided by the state Veterans' Home and Hospital to eligible veterans. Benefits include such things as hospital and medical care, housing, food, clothing, social and rehabilitation services, headstones and grave markers, burial expenses, and employment services. See Conn. Gen. Stat. ee§27-108, 27-109, 27-118, and 27-122b. The definition of "veteran" for Part Ia of Chapter 506 is contained in Section 27-103(b) and applies to all the benefits described above, except for the burial benefits found in Section 27-122b. That definition provides:
"veteran" means any veteran who served in time of war, as defined by subsection (a), and who is a resident of this state, provided, if he was not a resident or resident alien of this state at the time of enlistment or induction into the armed forces, he shall have resided continuously in this State for at least two years; ....
The definition of "veteran" for Section 27-122b, which has a longer waiting period for eligibility than Section§27-103(b), states:
"veteran" means any person honorably discharged from, or released under honorable conditions from, active service in the armed forces after service in time of war and who at the time of entering the armed forces was domiciled in this state or who was domiciled in this state at the time of his death and had been so domiciled for a period of not less than five years since such discharge or release; ....
In looking at the constitutionality of a statute which contains a residency requirement, it is important to distinguish "between bona fide residence requirements, which seek to differentiate between residents and non-residents, and residence requirements, such as durational, fixed dated, and fixed point residence requirements, which treat established residents differently based on the time they migrated into the State." Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 903 n.3 (1986).
"[A] bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by residents. Such a requirement§...§[generally] does not burden or penalize the constitutional right of interstate travel, for any person is free to move to a State and to establish residence there. A bona fide residence requirement simply requires that the person does establish residence before demanding the services that are restricted to residence."
Id., quoting Martinez v. Bynum, 461 U.S. 321, 328-29 (1974) (upholding a Texas statute that permits a school district to deny tuition-free admission to any student who lives apart from his parent or guardian for the primary purpose of attending the district's public schools.) See also Starns v. Malkerson, 326 F.Supp. 234 (D. Minn. 1970), aff'd, 401 U.S. 985 (1971). In cases where the United States Supreme Court has declared residency requirements to be unconstitutional, the Court has held that the challenged statutes violated newer residents' right to equal protection...

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