MEMORIAL HOSPITAL v. MARICOPA COUNTY

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Argument of Mary M. Schroeder

Chief Justice Warren E. Burger: We’ll hear arguments next in 72-847, Memorial Hospital against Maricopa County.

Mrs. Schroeder, you may proceed whenever you’re ready.

Ms Mary M. Schroeder: Mr. Chief Justice, may it please the Court.

This case is before you on appeal from the Supreme Court of Arizona.

The issue before you is the constitutionality of an Arizona statute that denies medical care at public expense to residents who have not been residents a year.

This Court presumably has taken jurisdiction of this case because the decision of the Arizona Supreme Court in upholding the constitutionality of that requirement was in direct conflict with the three-judge District Court sitting in Arizona which invalidated the identical provision as a denial of equal protection and an infringement on their right to travel.

The decision of the court below is in almost is direct conflict with a determination of this Court in affirming a District Court decision in Arizona which invalidated a similar durational residence requirements for mental health care in Arizona.

The case arises here because in 1971, a man named Henry Evaro moved from the State of New Mexico to that State of Arizona, intending to make Arizona his home and his residence.

About six weeks after he moved to Arizona, he became very seriously ill with an acute respiratory illness.

He was gasping for breath.

It’s been stipulated below he clearly required medical attention to restore his health.

He went to his private doctor, but his private doctor told him, he needed hospitalization and referred him to a private hospital, Memorial Hospital, the appellant here.

When he went to Memorial Hospital, the hospital determined that he was indigent and asked under their appropriate procedures, the county hospital either take Mr. Evaro as a patient, give him treatment there or that the county reimburse Memorial Hospital for the cost which it would expend in giving Mr. Evaro treatment.

The county refused.

In doing so it acted in accordance with the statute which says that “unless there is an emergency” and I will discuss that exception in a few moments if it please the Court, Mr. Evaro was clearly not in emergency case even though he needed care within the meaning of that statute.

The county said that in accordance with the statute, it could not give him care because he had not been a resident for a year.

Justice William J. Brennan: Mrs. Schroeder, is Memorial, as I know, it’s nonprofit, is it a private hospital or public?

Ms Mary M. Schroeder: Yes, it is, Your Honor.

Justice William J. Brennan: Right.

Ms Mary M. Schroeder: And I’m here representing Mr. Evaro and that hospital because the private hospitals in Arizona have a very real concern in the enforcement of the statute.

Justice William J. Brennan: And the other case involved Maricopa County Hospital, doesn’t it?

Ms Mary M. Schroeder: Yes, sir.

Justice William J. Brennan: And that’s a public hospital?

Ms Mary M. Schroeder: That is the county hospital operated at public expense, yes, Your Honor.

Justice Harry A. Blackmun: Mr. Schroeder, I suppose what you’re saying there is that if the county can't take this indigent patient on, then the private, not for profit hospital has to because he’s not going to be denied health care?

Ms Mary M. Schroeder: That’s true.

Out of decency, the private hospitals will take on as many patients as they can.

They can't handle it all, but they take on what they can and when they do, the cost had to be born somewhere and they are passed on to paying patients at the time when it’s particularly difficult for them to bear this cost as well.

Justice Harry A. Blackmun: This is a county measure.

Now suppose, Mr. Evaro had come in to Maricopa County from the adjoining county and this happened, would he be eligible to go to the county health facility back in the other county, and if not, why not?

Ms Mary M. Schroeder: No, Your Honor.

This is a State statute which imposes a county residence requirement.

Justice Harry A. Blackmun: He has to be a resident.

Ms Mary M. Schroeder: He has to be a resident of the county, so that it bars all those like Mr. Evaro who travel from one State to another as well as those who move within the State of Arizona.

The statute itself was passed in the 1930’s at a time when the legislature was very much concerned about the tremendous movement of people in the United States, particularly coming into Arizona.

Justice Harry A. Blackmun: May I just ask one more question about Memorial?

Ms Mary M. Schroeder: Yes.

Justice Harry A. Blackmun: If in fact he had been taken in, the expense of his care would not have been born by the county, would it?

Ms Mary M. Schroeder: Your Honor, the statute does provide that if the county is unable to provide care at the county hospital, that it can reimburse private hospitals, provided that they meet the residence requirement.

When this statute was passed, there was a concern appended to our brief legislative history showing that these durational residence requirements were passed at the time when there was a great deal of movement throughout the country, particularly in Arizona.

Chief Justice Warren E. Burger: For purposes of this case, let me see if I get it clearly.

The purposes of your basic issue, it doesn’t make any difference or does it make any difference whether it was in a private hospital or in the county hospital?

Ms Mary M. Schroeder: Well, it could’ve been accepted at the county hospital because he wasn’t eligible for treatment at county expense.

Chief Justice Warren E. Burger: But when the private hospital gets into the picture, it’s only as a surrogate for the county, on your theory, is it not so?

Ms Mary M. Schroeder: Well, what happened here, Mr. Chief Justice is that because he did not meet the residence requirement, the private hospital which cared for him was not entitled to reimbursement by the county.

Most of --

Chief Justice Warren E. Burger: And he first applied to get into a county hospital?

Ms Mary M. Schroeder: No, he was referred to the private hospital, but had he gone to the county hospital, the county hospital would’ve told him that unless you can pay your bills, you can't -- we can't treat you here And he would have to go elsewhere.

Justice William H. Rehnquist: All you’re trying to show is that it’s just as if he applied to the county hospital and then turned down?

Ms Mary M. Schroeder: Yes, except that it happened, so he went to a private hospital which did give him treatment at considerable expense.

Justice William H. Rehnquist: Well, of course, all these questions were dressed up as a question of state action?

Ms Mary M. Schroeder: But, Your Honor, this -- I don’t think there can be a serious question here with the statute imposing this requirement and enforced in this manner.

The statute was, of course, passed when the State was concerned about people coming in.

It was passed at the same time with durational residence requirements for public assistance.

Cash welfare benefits were passed.

It was in the same period that California enacted its absolute bar to indigents in the State that would struck down a generation that go by this Court in Edwards versus California.

Justice William J. Brennan: Well, I gather there’s no question, but for the residence requirement --

Ms Mary M. Schroeder: There is no question.

Justice William J. Brennan: -- this hospital would have been reimbursed --

Ms Mary M. Schroeder: That is correct.

Justice William J. Brennan: -- by the county for the services given?

Ms Mary M. Schroeder: That is correct, Your Honor.

Yes.

But the sole issue throughout this case has been the constitutionality of that residence restriction.

Chief Justice Warren E. Burger: And in that -- in doing that, it would be acting in effect as an agent or surrogate to the State, that’s your theory?

Ms Mary M. Schroeder: Yes.

Certainly, that’s so provided expressly in the statute.

When these durational residence requirements were enacted, there was of course great concern and those, if we look back, even in the 30’s realized that this was a direct, had a penalizing effect on people who were moving.

In the 1930’s, when Congress first faced this question with respect to a public assistance benefits under the Social Security Act, it provided that durational residence requirements in that area under federally funded programs could not exceed a year.

By the time that Congress faced the question of medical care in funding State programs for medical care, the earliest being the Kerr-Mills Act in 1960, Congress expressly declared that no State program under congressional ages could be accepted if it had any durational residence requirements whatsoever for medical care.

Now, let me point out that that statute doesn’t control the action of Arizona here because Arizona is not participating in those programs and the money here is not under those programs.

But we do have a square declaration by Congress that these durational requirements for medical care are not sound public policy and telling those States who do participate in federal programs that they cannot have them.

This Court first considered, of course, the question of durational residence in the welfare field, in Shapiro versus Thompson case which was decided in 1969 and the Court there held that to the extent that States may enact durational residence requirements in this field for the purpose of keeping people out, penalizing them once they got there, encouraging them to leave, that that was simply not permissible purpose for legislation and it held that absent a compelling State interest, these durational requirements cannot stand.

Now, the Shapiro case, of course, dealt with subsistence cash welfare payments.

This is medical care.

We think that if there’s any distinction between the two, it’s that there’s even less justification for having these requirements for medical care, then so happened than that cash assistance.

Justice William J. Brennan: But it recognizes also that there’s a difference that Shapiro dealt with travel between states, and this is travel within the state between counties, isn’t it?

Ms Mary M. Schroeder: Well, the restriction here is broader than the restriction in Shapiro because it hits at both travel within states and travel from one State to another.

This particular case is purely interstate travel.

Justice William J. Brennan: Intrastate?

Ms Mary M. Schroeder: Interstate, Your Honor.

Yes, because --

Justice William J. Brennan: Oh, I see.

Ms Mary M. Schroeder: -- the appellant here moved from New Mexico to Arizona.

Justice William J. Brennan: I guess, you just said that earlier.

Ms Mary M. Schroeder: Now, I think that the difference -- that the fundamental importance of medical care can be seen in the fact that while Congress was willing to tolerate a year residence requirements in the area of cash assistance, it required that they could not stand in the area of medical care.

And since this Court’s decision in Shapiro, as you can see from a little chart which we have appended to our brief in asking States what they are doing now with residence requirements in the medical field.

There are 45 states that are not enforcing these requirements at all.

There are only a handful states that are still enforcing it.

And the reason for it is clear both from the decision of this Court in Shapiro and as a simple policy matter that where you say that welfare benefits, cash payments have to be made to people regardless of the length of time that they’ve lived in the State.

You cannot at the same time, unless there is some compelling justification that’s not here, say that the State can withhold the medical care which may be necessary to get people off the relief rolls and to functional members of the society.

Justice William H. Rehnquist: Mrs. Schroeder, could Maricopa County impose a simple residence or domicile requirement so as to exclude a transient from coming at the Maricopa County Hospital and getting non-emergency medical care, say for pre-existing hernia?

Ms Mary M. Schroeder: Your Honor, that is not this case --

Justice William H. Rehnquist: I realize that.

Ms Mary M. Schroeder: The similar restriction, distinction, classification among residence based on the time that they’ve been there would not be present.

So far, there has been -- I can only say that that would be the next case.

Certainly, it would be and is not required by the decisions of this Court.

Justice William H. Rehnquist: Under your theory of the law, on which side would that fall?

Ms Mary M. Schroeder: Well, the -- our position is that we cannot distinguish as between residents based on the length of time that they have resided.

We do not go so far to say that there are -- there may certainly other considerations, but when dealing with transients who have a place of residence to which they can turn to for care.

Justice William H. Rehnquist: And how do you distinguish Starns against Malkerson, a Minnesota resident tuition case?

Ms Mary M. Schroeder: Well, Your Honor, that case and there have been several others that have determined that in the area of tuition for higher education that we’re dealing with fundamentally different thing.

A luxury perhaps that might be called but certainly not something that is so essential to human existence as medical care or the kind of assistance payments involved in Shapiro.

There may also be in the tuition and in other areas to which Shapiro has been applied.

There may be different considerations justifying the reason for a residence requirement, administrative concerns, other things which aren’t here which certainly were not present in Shapiro.

Justice Harry A. Blackmun: Well, could we translate that into a medical arena.

Suppose Arizona authorizes its county hospitals to charge “X” dollars to a nonresident, an “X” minus “Y” dollars to a resident, in other words, a discount to a resident.

On your theory, would this be alright?

Ms Mary M. Schroeder: That form of discrimination as between residents based solely on the fact that they just moved would be discriminatory and would have to be -- there would have to be a compelling reason for having it.

Justice William H. Rehnquist: But of course, in Starns, they required a one year residency requirement before you could get non -- before you get resident tuition at Minnesota.

And I think in Vlandis last year, majority of the Court approved that.

Ms Mary M. Schroeder: Pardon me?

Approved the imposition of the requirement?

Justice Harry A. Blackmun: Yes.

Ms Mary M. Schroeder: Certainly, we recognize, this Court has affirmed Starns but let me, if I may, simply quote to you from what the Starns opinion itself says which is that, in distinguishing the area of fundamental necessities, welfare, medical care from hospital to -- from tuition, it says that, “Shapiro involved the immediate and pressing need for preservation of life and health for persons unable to live without public assistance.”

And it distinguished that situation from the tuition situation and we do adhere that the fundamental point here is that we do deal with something that is absolutely fundamental to human existence.

Justice Harry A. Blackmun: But do you think it was a matter of distinction or of emphasis?

I come back to my hypothetical and all you say is compelling interest.

I’ve never know quite what that means because I grope for a case where we have upheld a statute in the face of compelling interest standard.

Ms Mary M. Schroeder: In this particular area, it’s difficult to think of one.

The suggestion has been made and I believe that in the Vlandis versus Kline opinion, the Court is concerned about possible administrative difficulties in determining when a person is a resident for purposes of tuition because there you have people automatically moving from one family and taking up residence somewhere else.

That certainly is not a problem that you find in these areas with welfare assistance.

May I say that to emphasize just how necessary this kind of medical care is, let me turn for a moment to the emergency exception that is urged here to be something which somehow takes us out of the Shapiro orbit?

The fact is that in the statute, emergency care is defined as that care which is necessary for the preservation of life or limb.

That means by definition that unless death is eminent or amputation is necessary, virtually, that the care will not be provided.

In the context of this very case, we have a situation where someone obviously needed medical care because he wasn’t able to breathe, but he wasn’t going to stop breathing altogether, so he was denied it.

In other situations, cancer, diagnosed cancer patients have been denied medical care because they did not meet the residence requirement.

Now presumably, because although their disease, unless treated at an early stage, would be fatal eventually, wasn’t going to be fatal right then.

There are situations where very serious burn and disfigurement where care has been denied.

Justice Harry A. Blackmun: Well, are you saying that carcinoma is necessarily always an emergency case?

Ms Mary M. Schroeder: No, I’m saying within this statute, it is not an emergency and therefore care is denied.

Justice Harry A. Blackmun: Well then, are you saying that carcinoma is always a nonemergency case?

Ms Mary M. Schroeder: No, I am -- I don’t know for what purpose this emergency exception was put in.

What the statute says is that “if you are in emergency, even if you haven’t met the durational requirement, we’ll treat you.”

Then we must look to see what an emergency is.

Justice Harry A. Blackmun: Normally, that would be a medical determination, is it not?

Ms Mary M. Schroeder: It is a medical determination but it -- but it’s not always made by a medical doctor.

That is one of the problems here And it because it’s defined in the statute is that treatment necessary for the preservation of life.

As it is applied in Arizona, it means that those suffering from cancer are not considered emergencies and therefore denied treatment until they meet the residence requirement.

If that being, the treatment is either delayed until it may be too late and treatment is more costly where the person is made to suffer throughout the waiting period.

Justice William J. Brennan: Mrs. Schroeder, what was the statute in Vaughan?

Ms Mary M. Schroeder: What was, I’m sorry?

Justice William J. Brennan: What was the statute in Vaughan?

We affirmed here in validation of that statute by a Three-judge Court.

That was mental health?

Ms Mary M. Schroeder: That was a -- yes, a mental health.

Justice William J. Brennan: Was that a residence requirement?

Ms Mary M. Schroeder: Yes, it was.

It’s said that if the patient had not been a resident for a year then there would be a transfer back to the State where the patient came from.

Justice William J. Brennan: We affirmed that that was unconstitutional?

Ms Mary M. Schroeder: Yes, you affirmed the District Court’s decision that that was unconstitutional.

Justice Byron R. White: Do you feel that’s rather close to this?

Ms Mary M. Schroeder: I certainly do.

Yes, I mentioned that at the beginning of my argument.

I think it’s and I believe that that’s one of the reasons that this Court has agreed to hear this one because there was such a direct conflict.

Justice Byron R. White: Did the three-judge Court on this statute rely on the laws?

Ms Mary M. Schroeder: They went the other way around.

The three-judge Court was first, Vaughan was second.

The only thing that really troubled Judge Craig in the mental health case was that he was troubled that perhaps mental health wasn’t quite as vital to human existence as the --

Justice Byron R. White: So this would have been a fortiori case?

Ms Mary M. Schroeder: Yes.

Justice Byron R. White: Well, Valenciano, the Court in Valenciano ended in the same court, the same three judges?

Ms Mary M. Schroeder: No.

Justice Byron R. White: A single judge?

Ms Mary M. Schroeder: It was a single judge and who get in the mental health case and he did not participate in the Valenciano case.

Justice Byron R. White: Which is it?

Ms Mary M. Schroeder: The Court has raised the question of interstate versus intrastate travel.

Justice William J. Brennan: Vaughan was at three-judge court below, wasn’t it?

The Vaughan Court was a three-judge Court.

We affirmed that direct [Voice Overlap]

Ms Mary M. Schroeder: [Voice Overlap] Pardon me?

I’m sorry.

Justice Byron R. White: But it was a different Court though?

Ms Mary M. Schroeder: It was a different Court, yes.

But excuse me if I --

Justice William J. Brennan: Yes.

Ms Mary M. Schroeder: I -- there we have two Three-judge Court decisions.

I apologize to the Court.

As we have seen, we have here a statute which affects people who move not only between states but also people who move from county to county.

A suggestion is made that somehow that lessens the constitutional infirmities.

The fact, is that here we have purely interstate travel.

We have a restriction that is even more severe than the restriction in the --

Justice William J. Brennan: Well, I take it, if this were county to county case, you would still be here?

Ms Mary M. Schroeder: Yes, we certainly would and we point out that in Dunn versus Blumstein, the voting rights case.

Now, this Court invalidated both the State residence requirement and a local residents requirement for voting and we believe that the --

Justice Byron R. White: Well, I suppose this all could have read on impeding interstate travel?

Ms Mary M. Schroeder: The local residence requirement?

Justice Byron R. White: Yes.

You have a local residence requirement as the State may not require anything but you might have to live for a year in the county.

Ms Mary M. Schroeder: So that’s exactly what we have here.

It does affect interstate travel.

Justice Byron R. White: Well I know, I understand that, but so the case is from intrastate travel case?

Ms Mary M. Schroeder: No, it is not.

Justice Byron R. White: Not at all?

Ms Mary M. Schroeder: No.

Justice Byron R. White: Necessarily?

Ms Mary M. Schroeder: No, it is not.

And I -- but the Supreme Court of Arizona in its opinion in upholding the statute somehow felt, and I cannot give it to you in most coherent terms because I’m not sure [Attempt to Laughter] exactly what they were concerned about.

But I think they felt that somehow that there was more justification perhaps to hitting a travel between counties within the State than with interstate travel.

We can only say that the right to travel has to be a fundamental precept that applies to anyone traveling in United States not only because he happens to cross the State line but as between counties within the same State.

The given --

Justice Potter Stewart: These funds -- are these funds county funds exclusively?

Ms Mary M. Schroeder: Yes, they are.

Justice Potter Stewart: None of them State funds?

Ms Mary M. Schroeder: I can't tell you, Your Honor, whether there are no State funds but they are principally raised by county revenues [Voice Overlap].

Justice Potter Stewart: [Voice Overlap] I suppose the State Court was concerned with the inter-county relationships --

Ms Mary M. Schroeder: That may have been what the concern was. Yes, but the effect of the statute --

Justice Potter Stewart: Maricopa County has about half the population of the State?

Ms Mary M. Schroeder: That’s correct.

Justice Potter Stewart: About a million people or more in Maricopa County?

Ms Mary M. Schroeder: Approximately a million.

The State has approximately two million total.

Yes.

And so, one of the reasons presumably was is that Maricopa County and they have said to this Court in their papers to the Court that they’re concern about people coming not only from outside of the State but from other counties in Arizona too.

Maricopa County --

Justice Potter Stewart: Some of the -- how many counties in Arizona is there?

Ms Mary M. Schroeder: Ten.

Justice Potter Stewart: Fourteen.

Ms Mary M. Schroeder: Fourteen.

Justice Potter Stewart: Are there any that don’t have any hospital?

Ms Mary M. Schroeder: Yes, there are.

There -- I think believe there’s approximately one county has no medical facility.

What we have here is obviously a serious penalty on those who travel.

It’s one which can be justified in the opinions of this Court only by compelling interest.

Justice William H. Rehnquist: Mrs. Schroeder, I take it from what you just say that if the State is not completely disabled from burdening the right to travel, but it depends largely on what interest it advances for doing so?

Ms Mary M. Schroeder: Yes.

Justice William H. Rehnquist: But then -- and the nature of your argument then is based on travel rights stated in Shapiro and it isn’t an Equal Protection claim?

Ms Mary M. Schroeder: Well, I think that the two have to be read together to a certain extent because in Shapiro, the Court said that because the classification was such that it discriminated against those who had only recently come into the State as opposed to those who have been there longer that that kind of a classification could be justified only on a basis of a compelling interest.

So, that we meet that equal protection point of what is there a reason for making this distinction.

And what the Court said in Shapiro was that to the extent that the justification is that we want to keep people out or to encourage them to move once they get here, that this is not a permissible justification at all.

Justice William J. Brennan: Mrs. Schroeder, suppose we have a non-indigent, not an indigent here, would you still be here?

Ms Mary M. Schroeder: If we had a non-indigent?

Justice William J. Brennan: A non-indigent.

Ms Mary M. Schroeder: Under the -- they would not be seeking a medical care, I presume.

Justice William J. Brennan: I expect this – does the statute preclude the county from taking a non-indigent?

Ms Mary M. Schroeder: We are here because the statute classifies indigents into two categories, those who have been in the State more than a year and those who have been in the State less than year.

Justice William J. Brennan: Yes, but how about someone --

Ms Mary M. Schroeder: We would be here on a different case.

We would not --

Justice William J. Brennan: Aren’t state facilities available to non-indigents at all?

Someone coming in from California while they go to Maricopa Hospital?

Ms Mary M. Schroeder: The county hospital?

I believe that there are facilities.

Yes, if they will pay the cost of the care.

Justice Byron R. White: You mean, if I came -- if I haven’t been a resident of Arizona for a certain length of time, if I could pay, I could get into the county hospital, say for some special treatment?

Ms Mary M. Schroeder: I’m not -- I believe that that is true.

You may want to direct that question to the counsel for the county.

I believe that if you’re willing to pay then the county makes its facilities available to those who live out the State and I believe that this in the abortion decisions, I believe that this Court squarely held that a State couldn’t limit its facilities only to residents in the State.

Justice William J. Brennan: Well, I gather looking at the statute on its face, this applies, this residence requirement apparently applies only to an indigent because --

Ms Mary M. Schroeder: Yes.

Yes.

Yes.

The residence requirement is only for indigents.

It is our clear statement that for those indigents who have lived for longer than a year, free care will be available and for those who don’t --

Justice William J. Brennan: Well, the answer to our question is to the non-indigent, you wouldn’t be here under the statute?

Ms Mary M. Schroeder: We wouldn’t be here on this case.

Yes, that’s true.

Chief Justice Warren E. Burger: May I ask you one question to see just how far this goes.

Suppose a patient was diagnosed as having a lung disease, tuberculosis, up in Toronto, Canada.

The doctor says, what you need is warm climate, dry climate, dry air, so Arizona is the place for you to go.

So, he flies from Toronto down to Phoenix and comes in under the statute, what about that?

Ms Mary M. Schroeder: Mr. Chief Justice, the answer has to be that if a person moves to the State of Arizona, makes that his residence then he cannot be denied the care simply because he only recently moved.

Regardless of whether he was motivated there for his health or whether he moved to visit his family or for whatever reason.

In this case, we have to have a compelling interest to justify this classification.

We don’t have it.

We have the county saying first that we need this statute in order to keep people from flooding in.

Well, this is precisely what the Court held in Shapiro was not a legitimate purpose at all.

Justice William H. Rehnquist: In the Chief Justice’s hypothesis, Mrs. Schroeder, I take it that perhaps one might assume if the man lived in Toronto, that he was not a citizen of the United States, would that make any difference?

Justice William J. Brennan: Or would it make a difference if he were a resident of the State of Washington?

Ms Mary M. Schroeder: As this statute is drawn, I believe that it is not limited to people who come from outside of the United States to the United States.

Justice William H. Rehnquist: But would it make any difference for the man’s constitutional rights?

Your client came from New Mexico, so clearly he has the right to travel, but does that same right extend to people who are not citizens and simply come from Canada?

Ms Mary M. Schroeder: No, that right wouldn’t extend.

But so long as the county makes its facilities available to residents who have moved from Canada there more than a year, then it shouldn’t deny them because they’ve been there less than a year.

Justice Harry A. Blackmun: Well, if Mr. -- going back to my hypothetical.

If Mr. Evaro were a resident of a State outside Arizona, and were down there for a vacation, would you be here?

Ms Mary M. Schroeder: No.

Justice Harry A. Blackmun: You wouldn’t at all.

You would say that the State could draw the distinction between a resident and a nonresident so far as its facilities are concerned?

Ms Mary M. Schroeder: Well, I don’t have to answer in this case because we have a resident.

We do not assert that the county must make all its facilities available to everyone regardless of where they live because in the situation of a transient, of someone coming is dispositive, someone coming from the State of Washington to Arizona, he can go back to Washington and get the care.

For someone who comes to Maricopa County, moves there to live there, he has no place elsewhere he can return to.

Justice Harry A. Blackmun: But then you client is willing to take on these out of State indigents without complain?

Ms Mary M. Schroeder: Well, there are problems in treating indigents.

We recognize it but we’re not there yet in this case.

We are not at this point raising that case.

Under the opinions of this Court, I have not indicated that these welfare assistance programs must be available to everyone regardless of their residence.

Justice Harry A. Blackmun: Well, doesn’t that also impinge upon the right to travel?

Ms Mary M. Schroeder: Yes, it does.

And we recognize and we have stated in our brief that many of the considerations here apply equally to transients as well as to residents but we are not certain in this case that the facilities must be open to that extent.

But it certainly must -- they must be open to residents on an equal basis and the only justification from the county that we have is that it’s going to be more costly.

This is precisely what was held in Shapiro to be not a compelling interest and not one which can justify a statute like this.

Let me simply say in conclusion that the opinion of the Arizona Supreme Court is virtually the only decision in the welfare field which had sustained the validity of durational requirements like this.

We think it should be the last.

The discrimination here is invidious to suffering that the people having to meet these requirements is real.

The effect of the statute is to delay treatment until it is more costly and until it may be too late altogether.

And it is to transfer a burden from the taxpayer basis as a whole to paying patients at hospitals in the time when they can at least afford to pay that cost.

And we respectfully submit that the decision below should be reversed.

Thank you.

Chief Justice Warren E. Burger: Mr. Carter.

Argument of William J. Carter Iii

Mr. William J. Carter Iii: Mr. Chief Justice, and may it please the Court.

I represent Maricopa County which is a territorial subdivision of the State of Arizona that includes the City of Phoenix and roughly half the population of the State.

I would -- this would be relevant as I get into my argument.

The county maintains a large modern hospital, approximately 500 beds and large out-patient clinic department because it has a statutory duty to provide medical care for the indigent who resides in the county.

The issue before this Court which I agree with Mrs. Schroeder is simply whether or not a 12-month durational residence requirement for eligibility for medical care at county expense violates the United States Constitution.

I think it’s a relatively simple issue.

It breaks down into two components.

One, does this residency requirement in any way penalizes the right of interstate travel and two, if so, is there a compelling State interest to be protected by imposing that penalty?

Taking the last first, I will state to the Court as candidly as I can that the interest which I suggest is compelling is money.

We estimated in our brief that the cost of providing medical care to indigent residents, who have not lived in this county for one year, would be approximately 13% of the budget that sums for medical care.

Justice William J. Brennan: As opposed to -- Mr. Carter, well, do you agree with this argument, would we have to depart or retreat from something they serve in Shapiro?

Mr. William J. Carter Iii: No, Your Honor, I don’t believe that that is necessary because as I read Shapiro, you said that there must be a compelling State interest to justify the imposition of a penalty.

And you went on to say that for the purpose of general welfare that fiscal convenience or some word to that effect was not compelling.

In Shapiro, you were dealing a life or death matter.

If a person does not receive food, clothing and shelter, he will die.

We’re not dealing with that in this case.

I would agree that the State may not withhold emergency medical care on the basis of a durational residence requirement for that very reason.

If we attempted to do that, we do indeed be conflicting with your holding in Shapiro.

Justice Harry A. Blackmun: You are however conceding that the applicable standard is that of the compelling state interest?

Mr. William J. Carter Iii: No, Your Honor.

I’m not.

My argument is alternative.

First, that there is no penalty and second, that if there is, the interest is compelling.

My primary argument is that there is and that this residence requirement does not constitute a penalty.

Justice Byron R. White: You say this is more like this welfare benefit which is the rational basis test until a medical need becomes acute?

Mr. William J. Carter Iii: Yes.

That the -- whether or not -- the test to be employed first is whether or not the durational residence requirement constitutes a penalty on the exercise of the right of interstate travel.

I think that this is a test that you set forth in Dunn against Blumstein.

And it has to be examined from that point of view.

If you take the major durational residence requirements which have been struck down by this Court, all of those cases can be reconciled with Starns against Malkerson in which you upheld a durational residence requirement or university tuition, and with this case.

In the Shapiro case, the person involved was threatened with a denial of an absolute necessity of life.

If you do not receive clothing, if you don’t receive food, even in Arizona if you don’t receive shelter, you’re very likely to die.

That is not the case in this statute that’s involved here.

If you do find yourself with a medical condition, that puts you in that situation, then you are entitled to receive medical care at public expense, provided you’re a resident regardless of the term non-residence.

Chief Justice Warren E. Burger: When you gave us that 13% cost, you mean someone has calculated that the non-residents, that is persons you regard as ineligible for this care if embraced in the program would raise the cost 13% or does the 13% a total of all indigent care of those entitled to it in your view or was not?

Mr. William J. Carter Iii: Mr. Chief Justice, at the time that the brief was filed, we calculated that the cost of furnishing non-emergency medical care to residents of the State who were indigent but had not resided in the State for one year would be 13% of the amounts presently budgeted for furnishing medical care to the indigents who have lived in the State for one year.

Since that time, our estimates have been revised and it is now closer to 10%.

Justice Thurgood Marshall: None of those figures compare with the additional cost in Shapiro?

Mr. William J. Carter Iii: I don’t know Mr. Justice --

Justice Thurgood Marshall: Because as I have ever to say my argument was made --

Mr. William J. Carter Iii: Mr. Justice Marshall, I don’t know whether they’re larger or smaller but I think that the standard against which they have to be measured is different.

In Rivera against Dunn, you upheld a decision which struck down a new, a durational residence requirement for general welfare because in the Dunn case, the only justification offered was the cost, but the durational residence requirement has to be -- the penalty has to be measured if any, must be measured against the benefit to be derived.

I would not, for example, -- well, in Maricopa County, we’re talking about roughly $2.5 million a year at present rates of inflation and growth, I would not, for example, argue that this is a compelling State reason to cease private property without due process of law or abolish the Courts to save the expense of affording due process before you incarcerate a person who has committed a crime.

I think that the penalty, if any, must be weighed against -- that the interest to be protected must be weighed against the advantage.

And here, I’m offering for your consideration that $2.5 million does as a consideration outweigh the interest in non-emergency medical care and not offering money as --

Justice Thurgood Marshall: Well is cancer not an emergency?

Mr. William J. Carter Iii: Mr. Justice Marshall, what is an emergency and what isn’t is defined in the statute as a condition threatening life or limb, but in practical application, an emergency is whatever the doctor at the emergency receiving room wants to call it.

We operate, the only way that I know of to determine whether any medical condition is an emergency is to have the person examined by a doctor.

And for that reason --

Justice Thurgood Marshall: But can the doctor, if you are resident -- can the doctor say, “you don’t need treatment and not treat you”?

Mr. William J. Carter Iii: Mr. Justice Marshall, we operate as a part of the hospital an emergency receiving room which is open without question to anybody who comes in, regardless of any condition of residence --

Justice Thurgood Marshall: But what if the doctor says, I think, that patients should be hospitalized, does the hospital have any discretion as to taking that patient or not?

Mr. William J. Carter Iii: The doctor is an employee of the hospital and therefore the hospital on simple theory of agency would be bound by his decision.

Justice Thurgood Marshall: You mean all the physicians are members of the hospital staff?

Mr. William J. Carter Iii: The --

Justice Thurgood Marshall: I am talking about the private physician?

Mr. William J. Carter Iii: Oh,no, Your Honor.

We would not be bound by the determination of a private physician.

Justice Thurgood Marshall: You would decide whether they needed treatment or not.

Mr. William J. Carter Iii: Our own doctors would, that’s correct, who are hospital employees.

The normal route for requesting admission would be the emergency room and if the doctor there thought that the patient had a life threatening condition, he would be admitted.

Justice Thurgood Marshall: Doesn’t that (Inaudible) difference of treatments and the horrible thing you said that were involved in Shapiro in cancer?

Mr. William J. Carter Iii: Well, I [Attempt to Laughter] understand what you say.

There’s no question that early medical treatment, non-emergency medical treatment is a benefit and I’m sure there’s no question that there are gray areas where you can pin someone down especially a person like me without any medical background.

But the principle that I’m asserting is that if the condition is life threatening, then it is of necessity and emergency and the method of evaluating that condition is an emergency room with a doctor in charge who would rather let, keep people alive than let them die.

So, it is much less inhumane than has been suggested.

There’s been a great deal of emphasis on the case of Vaughan against Bower in which this Court upheld a decision striking down a durational residence requirement for treatment at the Arizona State Hospital.

But that statute contains another provision which was such a flagrant invasion of the right of interstate travel that the case striking it down is not really applicable in --

Justice Byron R. White: Well, would you say that the three-judge Court that decided that case, decided Valenciano had thought that Vaughan was controlling?

Mr. William J. Carter Iii: Mr. Justice White, I don’t whether the exact three judges were the same, but I agree that Valenciano --

Justice Byron R. White: well, assume it was, it was?

Justice William J. Brennan: We just looked at it, the same three judges?

Mr. William J. Carter Iii: I agree that Valenciano is directly contrary to the holding of the Court --

Justice William J. Brennan: Well that Court thought that their own previous decision was controlling?

Justice Byron R. White: After our affirmance it’s noted in out opinion in Valenciano?

Mr. William J. Carter Iii: I would still offer to the Court the fact that in the Vaughan case, the statute empowered the Superintendent of the State Hospital to take the recently arrived patient in his hospital and put him or her on a public conveyance back to the state that he came from.

This is a float.

It is a forcible expulsion of a person from the State who has recently arrived and it puts the entire statute in a completely different situation.

I wouldn’t for a moment argue that Maricopa County can expel anyone.

Justice William J. Brennan: You mean, this doesn’t in a few words, so I would compose (Inaudible)?

Mr. William J. Carter Iii: Well, they put him on a railroad train and ship him out of town.

Justice William J. Brennan: That’s it, isn’t it?

Mr. William J. Carter Iii: It is a direct, physical invasion of this individual autonomy.

There’s no statistical evidence that the durational residence requirement in this case has deterred anyone.

In fact, all of the statistical evidence would tend to suggest that there has been no deterrence because Arizona has enjoyed or suffered an extraordinarily high rate of growth rolled up to other States in the union.

So, it’s necessary in looking at this to speak conjecturally to examine the statute and conjecture whether or not it does constitute a penalty on the exercise of the right of interstate travel.

And I would suggest then the penalty, if any, that it imposes is identical, or of like degree to the one that the Court upheld in Starns and spoke more specifically of in Vlandis against Kline.

If you intend to live in a State --

Justice Potter Stewart: Starns was a little different, at least as explained in Vlandis against Kline, was it not?

It was because of the ambiguous situation of university students, college and university students of out of state as from the ambiguity of whether or not they were or were not residents that a State University could have a one year residence requirement to determine that issue.

As I understand this case, there’s no argument about the fact that Mr. Henry Evaro is, or was a resident of Maricopa County, isn’t it?

Mr. William J. Carter Iii: No, there is none whatsoever.

In Starns, there were several reasons advanced.

One of them was a difficulty of ascertaining the --

Justice Potter Stewart: Bona fide --

Mr. William J. Carter Iii: Bona fides of the residents --

Justice Potter Stewart: Right.

Mr. William J. Carter Iii: -- but another one offered and the one that I would offer in this case is simply a determination that in this rather more limited benefit, the State could reasonably decide to extend it to those who have already contributed to the economy of the State by paying taxes and living there.

And I would like to emphasize to the Court that indigents are taxpayers.

So, an indigent who has lived in the State for one year of necessity both indirectly and directly has contributed a substantial amount to tax revenues of the State.

The argument offered in Starns was that with this rather limited benefit, not a life-threatening or life-giving benefit that it could be extended only that the legislature could reasonably decide to extend it only to those who had made a contribution of some kind by their presence and activity to the State.

There is no question that a one year durational residence requirement is valuable in determining bona fides of residence.

I hesitate to offer to this Court because you didn’t think much of it in Shapiro or Dunn but there is no question that it is valuable.

Chief Justice Warren E. Burger: Well, under Shapiro and perhaps some other cases, it wouldn't make any difference whether it were one year or 30 years, would it, on the principles enunciated?

Mr. William J. Carter Iii: That’s correct.

Chief Justice Warren E. Burger: There is no time factor to test the good faith elements is non-permissible?

Mr. William J. Carter Iii: As I read Shapiro, the State is entitled to find out whether they are or may be entitled to find out whether a person is in fact a resident.

Justice Harry A. Blackmun: And might have enough time --

Mr. William J. Carter Iii: But it may not impose a durational residence requirement which could threaten his existence --

Chief Justice Warren E. Burger: Or impose a --

Mr. William J. Carter Iii: As a means.

Chief Justice Warren E. Burger: Or impose a fixed arbitrary time for the purpose of that determination?

Mr. William J. Carter Iii: I am not offering because of Shapiro and because of Dunn, I am not offering the convenience of ascertaining residence as a justification for the statute in this case.

I recognize that the Court has already taken care of that argument for me.

A proponent of the justification that I did offer, I’d like to describe to the Court what the financing of the county hospital is.

It’s financed principally, approximately 90% by ad valorem taxes, ad valorem property taxes.

There are other financing devices, but they’re minor.

The ad valorem property taxes that finance it are imposed strictly on property within the jurisdiction that supports the hospital.

Justice Thurgood Marshall: They don’t get any federal money?

Mr. William J. Carter Iii: Mr. Justice Marshall, we get a great deal of federal money for our health services department but most of it is earmarked for specialized programs which do not have a durational residence requirement.

I’m referring to programs like tuberculosis control, VD, things like that.

That’s the essence of my argument that if the Court matches Starns against Shapiro that it’s going to have to find some basis for distinguishing between the two because on the one hand, you struck down a durational residence requirement as a condition of receiving a benefit which the State extended to its citizens and in the other you upheld it.

I think if you examine those cases, that the only distinction which can be made between the two is that in the case of Shapiro and in the other cases like Dunn that there was either a life-threatening condition, or a an invasion of a fundamental right of citizenship such as voting or -- here there is none.

The condition is not life-threatening and there is no invasion of a fundamental right of citizenship, therefore, it very closely resembles the durational residence requirement in Starns.

I’m not for a moment going to suggest that this benefit which is withheld is of little value, but the same is true of reduced tuition.

It’s an extremely valuable benefit, but it is not a life giving benefit.

Justice Harry A. Blackmun: Mr. Carter, the -- am I correct, however, into saying that the practical result of your position is that the care of Mr. Evaro and others like him is placed upon the private nonprofit facility?

Mr. William J. Carter Iii: The practical result of my position is hard to measure, Mr. Justice Blackmun because it varies with the facility that a particular county has.

In Maricopa County Hospital, roughly 40% of our patients are legally indigent, approximately an equal number are not legally indigent, however, they are so poor that they cannot pay their hospital bills.

So, we go through the --

Justice William J. Brennan: That’s getting to be -- it doesn’t matter how much money you get these days, that’s true?

Mr. William J. Carter Iii: Mr. Evaro could’ve been admitted to the hospital but he would have got a bill.

He would have been admitted in the capacity of indigent.

Justice Harry A. Blackmun: But it does mean that the Maricopa -- that the Memorial Hospital has to take care of Mr. Evaro free of charge?

Mr. William J. Carter Iii: It does mean that there are some cases where the voluntary hospitals are extending care to people who would not, who would be eligible, but for the durational residence requirement.

Yes, sir.

It does mean that.

Justice Harry A. Blackmun: But does this not been have a destructive effect upon the financial integrity of these institutions?

Mr. William J. Carter Iii: To the extent that this occurs, it causes the cost of that to be passed on to the private patient.

I would --

Justice Byron R. White: But I suppose the -- I suppose some of those hospitals or most of them are required to do some indigency work or they lose their status, their tax status?

Mr. William J. Carter Iii: Well, they’re required.

Most of them have received the substantial amount of Hill-Burton funds, federal funds for their construction which requires that they do some indigent work.

Justice Byron R. White: Yes.

Mr. William J. Carter Iii: I would also like to point out that the county hospital rather than the voluntary hospital in Maricopa County takes the bulk of the people who are ineligible but can’t pay.

They are almost half our hospital population.

If the Court has no further questions, that concludes my argument.

Chief Justice Warren E. Burger: Thank you.

Justice Harry A. Blackmun: But let me follow through, they would also have to take all the indigents in Arizona that are not residents of Arizona, the private hospital would?

Mr. William J. Carter Iii: Well, Mr. Justice Blackmun, if you’re sick and broke, somebody’s got to take care of you and in Phoenix, it’s the county hospital that usually does.

Justice Harry A. Blackmun: Yes, isn’t it better for the municipal facility to do this than for the private facility in which has other indigent claims upon them, if it’s worth its salt?

Mr. William J. Carter Iii: I agree and in practice, this is what occurs.

We have an awful lot of un-collectible bills.

Chief Justice Warren E. Burger: Thank you, Mr. Carter.

Thank you, Mrs. Schroeder.

The case is submitted.