Sweet, 072694 NEAGO, AGO 94058
|Docket Nº:||AGO 94058|
|Case Date:||July 26, 1994|
at the time of making an application for admission to one of the homes (a) the applicant has been a bona fide resident of the State of Nebraska for at least two years, (b) the applicant has become disabled due to service, old age, or otherwise to an extent that it would prevent such applicant from earning a livelihood, and (c) the applicant's income from all sources is such that such applicant would be dependent wholly or partially upon public charities for support, or the type of care needed is available only at a state institution ....Id. (emphasis added). Your two-part inquiry asks 1) whether the two-year residency requirement contained within the statute is constitutional, and 2) what factors should be utilized in making the determination that a veteran is a bona fide Nebraska resident. Background The two-year residency requirement now contained within Neb. Rev. Stat. § 80-301(1) has existed since the statute's inception in 1887. See Laws 1887, c. 82, § 1, p. 622. As originally enacted, home admission was extended to certain honorably discharged veterans and hospital nurses who satisfied specified criteria. Id. One criterion was that the veteran have "entered the army or navy . . . or such hospitals from this state, or . . . at the time of the application for admission to such homes, have been an actual bona fide resident of this state for two years, next preceding such application .... " Id. Variations of this two-year residency requirement have remained intact even though the statute has been amended on twenty-four occasions throughout its 107-year history. No legislative history is available to illuminate the Nebraska Legislature's basis for establishing the two-year residency requirement. Standard of Review Our analysis of Neb. Rev. Stat. § 80-301 must adhere to several rules of statutory construction which have been established by the Nebraska Supreme Court. First, all Nebraska statutes are presumed constitutional, and the party challenging the constitutionality of a statute has the burden of demonstrating that the statute is unconstitutional. In re Applications A-16027, et al., 242 Neb. 315, 495 N.W.2d 23 (1993). Furthermore, due to the presumption of validity accorded to state laws, all reasonable doubts regarding a challenged statute will be resolved in favor of its constitutionality. Id.; Jaksha v. State, 241 Neb. 106, 486 N.W.2d 858 (1992). Finally, "[i]f a statute is subject to more than one construction, one of which would make that act constitutional and the other unconstitutional, [then we, like the Nebraska Supreme Court, are] required to adopt the former." Evans v. Metropolitan Utilities Dist. of Omaha, 187 Neb. 261, 264, 188 N.W.2d 851, 854 (1971). Analysis A. Constitutionality Question. The United States Supreme Court has examined constitutional challenges to a variety of residence requirements which have been enacted by state legislatures. "On several occasions the [Supreme] Court has invalidated requirements that condition receipt of a benefit on a minimum period of residence within a jurisdiction, but it always has been careful to distinguish such durational residence requirements from bona fide residence requirements." Martinez v. Bynum, 461 U.S. 321, 325 (1983). Invalid Statutes The U.S. Supreme Court has generally invalidated state statutes containing "durational, fixed date, and fixed point residence requirements, which treat established residents differently based on the time they migrated into the [s]tate." Attorney General of New...
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