*1 Cоunty, Outagamie Petitioner Broek, Town Vanden Respondent, wife, Reitz Defendants Appellants. Argued November 1971. Decided November 1971.
No. 249. reported 913.) (Also in 191 W. 2d N. *2 appellants argu- For the a brief and there was oral James R. Scott Schmitz, Stuart E. ment both of Milwaukee. by Bollenbeck, respondent
For the there a brief Patterson, Froehlich, Jensen Wylie, & attorneys, A. W. Ponath argu- Appleton, all counsel, and oral *3 ment Mr. Ponath. alleged petition that T. J. The Hansen,
Connor Reitz, Harold Isabell (defendаnts- and husband and wife appellants) legal petitioning have in town settlement the granted public and therefore if relief it must is to them paid by town; the that in Milwaukee reside defendants county county and first obtained relief from Milwaukee dependent persons October, in and have been and pursuant provisions on relief since that time to the Stats.; 49.01 sec. that from October of 1967 to date petition (July 14, 1970), received defendants have county; petitioning relief from that Milwaukee town provide employment and is able to offers for defendants township necessary in the so that it will not be them for public county; relief in peti- to be Milwaukee that they tioner has invited them to return town, to the but neglected back; and peti- have refused to come that the unemployment tioner informed that is in Milwaukee high county very is and that there is no immediate or opportunity prospective for employ- defendants to secure county рetitioner ment in Milwaukee and that believes remain unem- that in fact view of the that defendants residing ployed county since there after Milwaukee time, February being most of on relief they place of required their that to return to should be legal i.e., petitioning town; settlement, their return employ- substantially township to the not reduce will earning opportunities will defendants, ment and materially disrupt family ties, will not work materia] injustice upon them. gen- 49.17, Stats., plan
Secs. 49.01 for constitute eligible provide dependent persons relief eral with necessary money. applied commodities, services As case, plan to the tax- facts is financed this payers municipality recipient’s legal of the of the settle- totally ment, and cate- is distinct from federal state and gorical plans old-age assistance, aid such as aid blind, dependent children, aid to aid families totally Legal partially disabled.1 settlement residing municipality by еstablished in a therein one for year receiving public private aid, without assistance of legal 49.10. Once purposes settlement for relief particular in the municipality, established it continues by residing until it is lost municipality outside the with- support dependent person out year. as a for one Thus, defendants’ since re- purposes lief been has established town of Vanden Broek, they so it until continues have been absent there- year receiving general from for one without relief. town Vanden Broek bears ultimate cost of assist- *4 ance, notwithstanding that the defendants reside in anoth- county. municipality er or Absent a proceeding, removal legal municipality the of may charge- settlement be general for able relief recipient residing to a furnished exceptions There are plan and of variations the such as sec. 49.03, Optional county systems; presented the however issue here exceptions not does relate to such and variations. of an number municipality for indefinite another years.2 Stats., (1) appeal 49.09
This concerns provide: which (1) dependent dependents. of “49.09 Removal When old-age assistance, to to recipient aid person, blind, than a of other dependent aid children, or to families aid with receiving persons re- totally permanently disabled is place and refuses lief than at of his elsewhere place thereto, agency ad- to the or of the return officer may peti- ministering place relief or of the of settlement any county judge judge of tion of the the the county relief of record the other court of which the directing person an return to order such to furnished his specifi- place petition of shall settlement. state sought cally copies upon the which order is the reasons dependent upon person, the be served the shall agency place place of the of or the officer or of upon residence hearing legal be served Notice shall settlement. days parties at in advance of the least same the regis- hearing. may personally made Service receipt requested.
tered mail return with “ legal judge place (2) return If finds substantially employment not reduce settlement does and earning dependent opportunities person, of the does family materially disrupt ties, work not does injustice dependent him, he order material person place order to return his of settlement. The beyond judge specify for removal shall a time of the granted dependent relief further shall be which no person he to the settle- unless returns his specify further to be ment and shall conditions complied petitioning municipality provide possible relating appeal does not concern issues to de This statutory ineligibility to receive relief from a fendants’ Likеwise, no than the town Vanden Broek. con source other raised, one, present if there be to the statu issue stitutional tory liability taxpayers Broek town of Vanden years per provide general to a for an indefinite number of relief residing longer in the town. no son
92 place of transportation suitable settlement. chargeable place transportation
cost of shall be legal other may of relief be recovered as settlement costs, pursuant 49.11. . .” section . arguments Appellants support advance of three in procedure proposition in 49.09 embodied (1) Stats., Denial of (1) and is unconstitutional: (2), privacy, equal (2) protection, interferes (3) infringes to travel. Equal protection. Appellants argue statutory plan that the discriminates residing legal persons between their established settle- place persons residing ment and than the elsewhere being legal subject to re- The latter is settlemеnt. class legal or, upon refusal moved their general assistance, subject so, to a termination of to do residing person a at established settle- while his subject only to assistance ment termination employment. if he refuses arbitrary only
However, classifica- it is irrational equal protection clause. State ex which violate the tions Schopf 644, 45 2d 173 v. Schubert Wis. rel. 673; (7th 1970), Hill Burke 2d v. Cir. Fed. 2d N. W. Dandridge 471, v. Williams 1195. U. S. Sup. 1153, 25 Ed. 2d 485, 90 L. the court Ct. stated: welfare, “In the and social area of State еconomics Equal merely not Protection violate the Clause does be imperfect. the classifications made its cause laws are basis,’ has some If the classification ‘reasonable it does simply Constitution not offend the tion ‘is practice the classifica because nicety not made with mathematical because inequality.’ Lindsley in some it results Na Co., problems tural Carbonic Gas U. S. 78. ‘The government practical may justify, they are if ones rough rеquire, it illogical, do accommodations — Metropolis City be, and unscientific.’ Theatre Co. v. *6 Chicago, statutory 61, 228 U. ‘A discrimination S. 69-70. any reasonably will not be set aside if be conceived to state facts Maryland, justify it.’ 366 McGowan v. 420, U. S. 426.” Where, statutory however, a classification is based 3 “suspect” infringes either criteria on a constitutional right, equal protection it will constitute a denial of under by justified the fourteenth amendment a com- unless pelling supra. Richardson, state Graham interest. v. Shapiro Thompson
In v. 618, 89 394 S.U. Sup. 1322, 600, Ct. 22 L. Ed. 2d uncon- held stitutional four state which conditioned the statutes dis- one-year tribution of welfare benefits aon state resi- dency requirement. Each of the four statutes involved plans jointly by assistance funded state and federal governments.4 The court its decision on the con- based impermis- stitutional to travel and condemned as indigents objectives, sible state either the deterrence of migrating from to the state or the limitаtion of welfare according prior to tax benefits contributions. The es- page of the court’s decision is sence stated on 634: waiting-period provision “. . . denies welfare eligible applicants solely to otherwise benefits they because recently jurisdiction. have moved into the But in moving from State to State or to the District of Columbia exercising appellees a right, were constitutional penalize classification which serves the exerсise of that right, necessary promote unless shown com a pelling governmental interest, is unconstitutional. Cf. Oklahoma, 535, (1942); v. Skinner 316 U. S. 541 Kore States, 214, (1944) ; matsu v. United Bates v. Little 323 U. S. 216 Rock, 516, (1960); 361 U. S. 524 Sherbert Verner, (1963).” v. 374 U. S. 3 Examples inherently “suspect” of criteria which are are alien- age, nationality and race. See Graham v. Richardson Sup. 365, 91 Ct. 29 L. Ed. 2d U. S. 534. dependent Three of the statutes involved aid to families with children; permanently totally fourth aid involved to the dis abled. Graham, Richardson, requirement suprа, a
aliens in the United years live for States fifteen as a eligibility partially condition totally aid to dis persons (funded abled jointly and federal state governments) was held unconstitutional as a denial equal protection. analogized The court the discrimination against to the discrimination aliens nonresidents Shapiro(cid:127) and also based its decision on fundamental Similarly, plan assistance, travel. wholly administered and funded state, which denied welfare benefits of the United noncitizens States, overriding to be in held conflict with national policies government. of the federal cases, In both *7 court remarked he . . classifications involved . “[t] inherently suspect subject are and are therefore to strict judicial scrutiny whether or not a fundamental is impaired. Graham v. Richardson, supra, page 376. statutory
The classification in the instant case is suspect infringes upon neither nor a fundamental reasonably very general but purpose is related to the of legislative 49.002, Stats., assistance. policy Sec. states the general regard to assistance: Legislative “49.002 declaration. is It declared to be legislative policy general recipients that all of relief shall exposure job training have maximum tunities job oppor- through employment the Wisconsin state service governmental agencies. well as other a Eefusal of employment training bona fide offer good of or withоut cause, acceptance or subsequent inadequate perform- and neglect, through wilful shall local, necessitate that ance^ municipal county or general welfare officials discontinue payments Any relief payer purpose to such individual. Wisconsin tax- standing’in shall have the circuit court for the obtaining injunction an policy enforce the personnel forth in set this section. All shall do their best get general individuals off relief self-sup- and into рorting productive jobs.” en policy statutory provisions on a The are based maintaining couraging employment promoting integrity pro both the of the fiscal and administrative Thompson, gram. recognized Shapiro As supra, page 633: preserving . . a State has a valid interest legitimately integrity programs. may It
fiscal of its attempt public for expenditures, to limit its whether assistance, public education, program. But other may a distinctions between saving accomplish purpose State invidious such a . citizens. . . of its classes justify an otherwise welfare cannot costs invidious classification.” discrimination; case, In the instant there no invidious i.e., residency, are not benefits denied the basis legal whether or not a settlement has been established. Regardless legal eligible dependents settlement, are are entitled to If assistance. the criteria for removal legal dependent met in the of a case who a has sеttlement longer thereto, he refuses to return he is no entitled eligible Similiarly, dependent re- assistance. if an accept employment municipality fuses to in the wherein resides, assistance, eligibility he he forfeit legal irrespective located, where his whether he has settlement. The established operates employment oppor- to coordinate statute thus persons dependent upon tunities with assistance. *8 Wyman (1971), 309, Sup. In James 400 v. U. 91 S. 381, 408, L. 2d the York Ct. 27 Ed. New statutes regulations prescribing periodic home visits as a condi- program tion for continuance under assistance Dependent (AFDC) for Aid to Families Children determined to be were constitutional. The statutes regulations provided receiving that if a mother AFDC permit periodic visits, to refused home could the aid supreme be discontinued. court held that the mother fully “rights” periodic was within her refuse the to visits, consequence home but of such the exercise right entirely could be a aid. “The choice cessation of is nothing magnitude hers, in- constitutional is Wyman James, supra, page if here, volved.” v. 324. So hearing proof the town can meet burden of at the its petition, can return to the the defendants refuse entirely town Vanden Broek —the choice is theirs.
Right privacy. Appellants Stats., 49.09, also contend is appellants’ unconstitutional in that it interferes with right privacy, constitutional in violation of ninth and fourteenth In amendments. Griswold v. Connectiсut 479, 484, Sup. 1678, 381 U. 2d S. Ct. 14 Ed. L. “ 510, spoke sanctity court ‘of home of a man’s ” privacies striking of life.’ down a Connecti- forbidding cut statute contraceptives, use of recognized guarantees various constitutional which privacy. However, created zones of it there never intimated that where one is, locates home one’s of neces- sity, protected privacy. á zone of may, the location
While home one’s circum- some stances, protected under various other constitutional provisions, it not a privacy violation of the under the ninth and fourteenth amendments.
Right to travel. “The constitutional to travel from State one another, firmly . . . has been repeat established and edly recognized.” United States Guest 757, 745, Sup. U. S. Ct. 16 L. Ed. 2d although particular it ascribed no constitutional *9 provision. supra; Shapiro Richardson, Graham v. v. supra.5 Explicit Shapiro Thompson, in and Graham right that place to travel envisions movement from Although unimpaired by discriminatory laws. supreme specifically court has never decided the question, appellants urge right that to travel em- King braces intrastate as well as interstate travel. In Municipal v. New Housing Authority Rochelle (2d Cir. 1971), 442 646, 648, Fed. 2d the court held uncon- five-year stitutional a residency requirement local that prerequisite housing. a public for admission right answer to the contention that em- travel only movement, braces interstate the court said: meaningless “. right . . It would bе' to describe the to sonal precept travel between a per- con- states fundamental liberty acknowledge and not to a correlative right stitutional to travel within a state.” However, concluding paragraph King opin- in the ion states: reaching “In emphasize our conclusion we that we deciding only validity are here of a durational resi dency requirement housing. public for admission to As Shapiro there is no contention here a that state or government
local
require
applicants
that
for
public
be bona
suggest
services
residents. Nor do we
fide
any opinion
validity
residency
as to the
of durational
requirements, many
nificant'
assuredly
promote sig
which
do
King
state
interests.”
v. New Rochelle
Municipal Housing Authority, supra, page 649.
argue
Appellants
recognized
implicitly
court
this
the intrastate nature of the
to travel
in Ervin
v. State
2dWis.
do not considered consider issue therein relevant to the instant case. right travel to
Assuming, deciding, without in movement, envisions as interstate intrastate as well showing that the defendants’ case we find no this impaired. They in to travel moved Milwaukee February general October of relief in first received alleges dependent they petition of and the have been persons time. Here the defendants on relief since that apparently and in Milwaukee want to continue live pay have of Broek their relief costs. the town Vanden eligible dependents not statutory plan, are Under the state, freely about to move denied they necessary are wherever entitled receive assistance general they dependent may removed, A or reside. be municipality terminated, only petition by the rеlief on legal judicial a determination of followed settlement that a return of . . does to the earning substantially employment not reduce the opportunities dependent not ma- person, of the does any terially disrupt family ties, and does work judge injustice to him . . . and further material applica- may an time entertain in discretion at his municipality to dependent person tion or either upon giving of notice revoke such removal order and hearing may temporarily . . revoke such order . permanently.” Sec. 49.09 Stats. Shapiro Thompson, supra, page 629, it
stated: one-year waiting-period do not doubt that de- “We discourage poor influx of fami- vice is well suited the. indigent An lies need assistance. who desires resettle, migrate, will making job, a a life find new and start new hesitate if he knows that he risk doubtless must falling possibility the move without back during year on welfare state assistance his first residence, when his need be most acute. But the inhibiting needy persons into migration by purpose of constitutionally impermissible.” the State is Stats., Surely provisions (1) 49.09 migra- designed to cannot be to be inhibit said statutes finding purpose resettling, for the tion about the state language starting job a There no a new new life. interpreted any way can in the section which needing discouraging assistance the influx families community. lived The fact that have into defendants years relief for over three in Milwaukee speaks for itself. *11 provisions therefore, conclude the
Wе, that sec. Stats., constitutionally im- (1) are not 49.09 permissible.
By the Court. —Order affirmed. agree (concurring). I the result J. Heffernan, only by question court, the reached the but because validly necessarily by the dissent is not reached raised obligated recipient In the event the were in this case. original in to return his order patently payments, receive the would be welfare statute very however, I convinced, am the unconstitutional. constitutionally appellant the that сited dissent cases payments either or not be denied from the state could county apparent It the in which he now resides. “legal concept of in this that the settlement” as revealed original concept that make case—a would the perpetually I am residence liable —is sheer nonsense. obligated appellant that cannot be to return the satisfied equally Broek. I to the of Vanden am satisfied town “legal the settlement” an that town of should not have obligation payments recipient make those after the from that removed himself for a reasonable has locale length of time. 49.09, my judgment, (dissenting). In J. Wilkie, right the impermissible restriction
Stats., places an state, vio- the thus travel within an individual therefore, constitutions; lating federal both state and the disagreement over Although there is some I dissent. constitution federal particular provision of the which con- right, true grants nonetheless it is such recognized by the right been has to travel stitutional Passenger early in the Supreme Court as as United States 1849.1 Cases of emphasized im- Dulles2
In Kent v. right: portance of this ‘liberty’ part of which is a “The to travel process of deprived without cannot due
the citizen
be
emerging
Anglo-Saxon
law that
was
law ....
Magna
early
omitted].
at
Carta
least as
[footnote
Rights
of 1787
Chafee,
Three Human
the Constitution
deeply en-
seq.,
171-181,
how
187 et
shows
is.
grained
history
movement
freedom of
in our
this
direction,
movemеnt
frontiers
either
Freedom of
across
heritage.
part
well,
of our
and inside frontiers as
Travel
necessary
of
country,
abroad,
within
like travel
may be
heart
a livelihood. It
as close
wears,
eats,
as the choice what he
individual
in our
Freedom of movement is basic
scheme
reads.
nation,’
‘Our
wrote
of values.
Chafee,
[Citations omitted.]
principle that,
areas
outside
‘has thrived on
*12
every
plainly
conduct,
American
to
harmful
is left
shape
pleаses,
best,
he thinks
his own life
do what he
go
Id.,
pleases.’
he
at 197.”
where
Constitution,
I
As to the Wisconsin
believe that
this
right
freedom
to
of movement
is included
same basic
rights” guaranteed by
I,
“inherent
within the
sec.
art.
I.3
1
(7
(1849),
How.) 283,
48 U. S.
tain inherent the
101 Thompson4 Shapiro majority, v. As noted the residency requirements struck down various states’ per- poor they recipients welfare becausе restricted the right migration. to of this The basic nature son’s migration recently emphasized Pease most free 5 supreme Hansen court said that such wherein the requirements even federal residence were invalid when no funds were involved. be-
Applying
concepts
present appeal, I
to
these
the
statutory
Mr.
that
unconstitutional.
lieve
the
scheme is
early
1967,
and Mrs. Reitz
to
moved Milwaukee
being required
years
they
now,
later,
than
more
four
are
Broek.
pаck up and
of Vanden
to
return to
town
legislature
adopt
fit
fiction
to
Because the
has seen
pople
“legal settlement,”
can force these
town
give up
their home in Milwaukee
return to Vanden
receiving
precedent
welfare
condition
Broek as a
fact,
under-
I
at a loss to
In view of this
am
benefits.
finding
majority’s
that “the defendants’
stand
concept
impaired.” The basic
behind
to travel
[not]
re-
49.09, Stats.,
authorized
is to
“removal” as
recipient’s
within
the welfare
move
strict
always subject to
chooses but
He moves where he
state.
majority
he came from. The
back to where
removal
apparently
“the
opinion
want
states
defendants
and have the town of
to live in Milwaukee
continue
pay
I
their
relief costs.”
read
Broek
As
Vanden
they
choice,
have no
must receive
statute, defendants
from
Broek.
Vanden
their benefits
49.09, Stats.,
trial court
authorized
Under sec.
poor person
home
to leave his
and move back
to order
only
“legal
he
settlement”
because
receives
governments
rights,
happiness;
these
are instituted
to secure
powers
deriving
just
among men,
their
from the consent of
governed.”
4
618,
Sup.
1322,
Ct.