Honorable Feather O. Houstoun
Pennsylvania Attorney General Opinions
Commonwealth Of Pennsylvania Office Of Attorney General
December 9, 1996
Honorable Feather O. Houstoun
Department of Public Welfare
Room 333, Health and Welfare Building
Harrisburg, PA 17105
Dear Secretary Houstoun:
You have requested my opinion regarding the enforceability of the durational residency and citizenship requirements of Act 1996-35 ("Act 35"), which amended various provisions of the Public Welfare Code governing eligibility for cash and medical assistance under the Commonwealth's General Assistance program.
Section 11 of Act 35 amends Section 432.4 of the Public Welfare Code, 62 P.S. §432.4, to enlarge from sixty days to twelve months the period of time that an applicant for cash assistance must be a Pennsylvania resident before becoming eligible for benefits. Section 15 of Act 35 amends Section 442.1 of the Code, 62 P.S. §442.1, to add a requirement that an applicant for medical assistance must be a Pennsylvania resident for ninety days before becoming eligible for benefits. Section 14.1 of Act 35 amends the Code to add Section 432.22, 62 P.S. §432.22, which disqualifies for cash or medical assistance an applicant who is not a citizen of the United States.
In providing legal advice to the head of a Commonwealth agency, the Attorney General is required by Section 204(a)(3) of the Commonwealth Attorneys Act, 71 P.S. §732-204(a)(3), "to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction." Since each of the foregoing provisions of Act 35 implicates a decision of the United States Supreme Court relevant to its constitutionality, it is incumbent upon me to determine whether the Supreme Court decision is "controlling" so as to compel the advice that the provision to which it relates is unenforceable.
As a threshold matter, it must be emphasized that the concept of a "controlling decision by a court of competent jurisdiction" is not susceptible to precise definition. Clearly, it cannot be construed so narrowly as to require a decision by a court of last resort holding unconstitutional the very provision on which the Attorney General's advice is sought, since that construction would render the Attorney General's advice a meaningless gesture. On the other hand, the decision said to be "controlling" must be more than merely predictive of the constitutionality of the statutory provision on which the Attorney General's advice is sought; it must adjudicate the constitutionality of a statutory provision materially indistinguishable from the statutory provision on which the advice is sought, and it must be rendered by a court that has jurisdiction over the entirety of Pennsylvania.
In Shapiro v. Thompson, 394 U.S. 618 (1969), the United States Supreme Court held that a state statute that requires a minimum one-year residence in the state as a condition of eligibility for public assistance violates the Equal Protection Clause of the United States Constitution. Among the state statutes specifically invalidated in Shapiro was then Section 432(6) of the Public Welfare Code, which required a minimum one-year residence in Pennsylvania as a condition of eligibility for cash general assistance or Aid to Families with Dependent Children.
In relation to Section 11 of Act 35, Shapiro presents a clear example of a "controlling decision by a court of competent jurisdiction," since it invalidated a materially identical provision of the same statute, pertaining to the same government program. That the appellees in Shapiro were all applicants for federally-assisted rather than wholly state-funded cash assistance is of no consequence, since the Supreme Court has held that "whether or not a welfare program is federally funded is irrelevant to the applicability of the Shapiro analysis." Memorial Hospital v. Maricopa County, 415 U.S. 250, 261 (1974) (citations omitted). The Shapiro decision, therefore, renders Section 11 unenforceable.
In Memorial Hospital v. Maricopa County, id., the United States Supreme Court held that a state statute that requires a minimum one-year residence in the state as a condition of eligibility for medical assistance violates the Equal Protection Clause of the United States Constitution. Specifically invalidated in Memorial Hospital was an Arizona statute that required one-year residence in a county as a condition of eligibility for county-funded medical assistance.
On its face, the Arizona statute invalidated in Memorial Hospital exhibited two features that distinguish it from Section 15 of Act 35: first, its residency requirement applied to county rather than state residence; second, its residency requirement was one year rather than ninety days. Notwithstanding such differences, the Memorial Hospital decision may be "controlling" with respect to the constitutionality of Section 15. The key question is whether the differences are material, that is, whether either of them presents a basis on which to conclude that there is a reasonable possibility that the Supreme Court would uphold Section 15.
The decision in Memorial Hospital relied heavily upon the Court's analysis in Shapiro v. Thompson. In Shapiro, the Court observed that, because the right to travel interstate - more precisely described as the right to migrate from one state to another - is a fundamental right protected by the Constitution, "any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." Shapiro, 394 U.S. at 634. The Court found that differentiating...