ATTORNEY GENERAL OF N. Y. v. SOTO-LOPEZ

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ORAL ARGUMENT OF ROBERT HERMANN, ESQ., ON BEHALF OF THE APPELLANT

Chief Justice Burger: You may proceed.

Mr. Hermann: Mr. Chief Justice, and may it please the Court:

The veterans' preference granted in New York's Constitution was upheld by this Court a dozen years ago against an identical challenge, that it impermissibly discriminated against veterans who were not residents of New York at the time they were inducted.

That case was called August against Bronstein.

The Second Circuit felt that August against Bronstein was no longer good law in light of recent doctrinal developments in this Court, specifically the Zobel against Williams case, and presumably Hooper against Fernalillo County, although that had not been decided at the time.

We believe that these recent decisions do not overrule the August, and that New York's classification is reasonably designed to fulfill legitimate state purposes.

Veteran preference laws have a long history in this country, and their constitutionality is a well settled matter.

New York, as well as 15 other states, conditions the award on veterans' preference credits on residence in the state at the time of induction into the military.

Since the 1920's New York has promised in its Constitution that if a resident goes into the armed services, serves during time of war, and is honorably discharged, that person on passing a Civil Service examination is entitled to five additional points in competing for public employment.

That commitment has never been withdrawn, and the commitment can only be withdrawn, we emphasize, by amending the State Constitution.

Unidentified Justice: Mr. Hermann, is there any time limit imposed on the exercise of this privilege or benefit?

Mr. Hermann: No, I do not believe there is.

It's a one time privilege but there is no time limit on its use.

We believe that whether New York's constitutional provision is viewed as a right to travel matter or as an equal protection matter, the result here turns on whether at a minimum, New York's classification rationally furthers a legitimate state purpose, and the Court of Appeals, we know, is divided on this point.

We believe the essential error in the Second Circuit's opinion was that it failed to perceive that New York's law rationally does further legitimate state purposes because the Second Circuit viewed the law simply as a retrospective measure, a reward for past services.

It largely ignored the law's prospective function as an incentive measure, one designed to encourage service in the military, to encourage persons to return to the State of New York, and to engage in public service thereafter, and these are separate purposes which I'll discuss in a moment.

But, unlike the New Mexico and Alaska statutes struck down in recent cases of this Court, New York's Constitution is and has been for a long time forward-looking.

Forty years ago, in an informal... in a formal opinion the State's Attorney General described the law as largely self-executing, and by that he meant that as part of the State's Constitution it guaranteed these benefits, and the only function of the legislature was to prescribe the periods of award.

And the Attorney General's opinion 40 years ago specifically said that a veteran of a war who would have a cause of action in New York State courts for this right even if the Legislature failed to determine time of award.

Thus, this is not an after the fact attempt by the State simply to take care of its own, and we believe that the fact that the Court of Appeals overlooked this is the critical flaw in its whole--

Unidentified Justice: Isn't the origin of that concept of taking care of their own, as you put it, something that goes back to at least the Civil War when the states raised the troops and sent them in, and of course that was true earlier?

Mr. Hermann: --That is correct, Your Honor.

We discussed some of that history, both the constitutional history and the legislative history, in our brief.

New York' statute goes back at least until the Civil War, and I think it's worth observing that the Second Circuit has no discussion whatsoever in its opinion of the nature of that history, or of the important fact we rely on here which is that it's a constitutional commitment.

The Second Circuit found that New York has no legitimate interest in encouraging its residents to serve in the military, but the Court offered no support or citation for that conclusion in referring simply to patriotism, as it described it.

We submit that New York has acted from patriotic motives, and that the Second Circuit was wrong in declaring illegitimate New York's interest in encouraging its residents to serve.

Unidentified Justice: May I ask this question, does it apply to people who were drafted as well as those who enlist?

Mr. Hermann: Yes, it does, Your Honor.

Unidentified Justice: But you've said in that respect--

Mr. Hermann: As to people who are drafted, it certainly doesn't serve to encourage service in the military, but it does serve two subsequent functions of encouraging them to return to the state and encouraging them to engage in public service thereafter.

Unidentified Justice: --General Hermann, do you think that's really what the legislature had in mind when the people adopted this part of the Constitution, all of these rather fine-spun rationales for why the thing might pass a court test?

Isn't the usual motivation for... it's just kind of gratitude for people who have served in the service and wanting to give them a little bit of a break after they get out?

Mr. Hermann: Certainly that's one of the major reasons why these statutes and these constitutional provisions have been enacted, but the standard justification given in most of the case law, Your Honor, for these statutes is fourfold, and two of those purposes... at least one of the major purposes always described is to encourage service in the military, and we do rely on that as a motivation.

Unidentified Justice: You say it's given in the case law.

You think, then, the courts are probably the best finders of legislative motivation in a case like this?

Mr. Hermann: I think the applicable standard here, again we submit, is the rational basis standard so that any basis which can be put forward to rationally justify the statute should be sufficient to sustain its validity.

In the initial... in the August against Bronstein decision, the Court found that these were the four purposes which were served, and relying on the opinion of Chief Judge Friendly in a case called Russell against Hodges we believe that the states do have a role as states in encouraging service of their residents in the military, and that the Constitution does give the states the role as such in providing for national defense, and we looked at two things specifically.

Under Article I, Section 8 of the Constitution, the authority to raise militias according to the discipline prescribed by Congress is reserved to the states, and Clause 15 explicitly reserves to the states, and I am quoting,

"the appointment of the officers and the authority of training the militia. "

And similarly, the Second Amendment to the Constitution recognizes that a well regulated militia is necessary to the security of a free state, and under the Constitution, Congress is empowered to call up and historically has often called up the militia, the State National Guard, in time of war to provide for the common defense, and indeed at this time many of the nation's combat-ready units are included in the state militias.

Thus, we believe the state as a state, under our Constitution, has an interest in encouraging its residents to serve in the military.

Similarly, during or just before a time of war, a military draft becomes a greater probability than would otherwise be the case, and of course much more important than would otherwise be the case.

Under our draft laws, quotas are set for each state based on the number of eligible persons in that state and based on the number of eligible persons nationwide, and a state under the Selective Service laws gets credit for the number of persons currently in the service.

Thus, we believe that the state may validly seek to encourage volunteer service both in order to assist the nation and to assist the state in meeting its quotas under the national defense system, and similarly may seek to minimize the burden on non-volunteers who may be providing important services to the state or to the people of the state.

It seems to us that a critical error in the Second Circuit's opinion is to assume that because New York might have an interest in encouraging service of all residents of the United States in the service, that therefore it is illegitimate for New York to concentrate its efforts on its lesser included interest, namely, encouraging its own residents to serve.

No doctrine of which we are aware holds that a state offering prospective incentives for participation in a national program such as the draft must make those promised benefits available to all persons residing outside their borders, and as a practical matter, New York law targets the residents of the State of New York, simply because it is not much of an incentive to enter into the military service for a teen-ager in Nevada, to be offered public service employment in New York after service in wartime.

The New York law also compensates veterans, as Justice Rehnquist indicated, and compensation is certainly one of its most important purposes.

Again, the Second Circuit viewed that purpose purely retrospectively, failing to recognize, we submit, that promise of compensation is so important incentive to military service.

Even if one were to concede that rewarding veterans after the fact for military service at some point in the past is not a legitimate state purpose, it does not follow, it seems to us, that promising to reward them in the future for such military service doesn't serve a legitimate state purpose.

That purpose, we submit again, is encouraging service in the military.

An additional important purpose that the New York law and the New York constitutional provisions are intended to fulfill is to encourage skilled veterans to come home and to serve in the public service.

A wartime veteran, as I am sure this Court is aware, acquires skills and experiences which make that person a very desirable employee, whether for government or for anybody else, and we would of course concede that that is true of all veterans, whether they reside... whether they have ever resided in New York or not.

Nonetheless, we believe that New York has a valid interest, unrelated to any desire to reward its own people, to encourage former residents to come back to New York after time of war and to engage in public service.

I think it's important to focus on the group that New York is targeting with this provision, entirely apart from the questions, that the incentive purpose of going into the military for the person who is drafted, for example.

The group New York has always targeted with the statue is the group which is by definition is uprooted, New York residents who have gone to war.

Whether or not they have done so, again in reliance on the promise of preferential consideration at a later point, it is reasonable for the State to give them some encouragement to return home and New York, beyond that, is interested not only in getting residents to return home but to engage in public service when they do so, and this Court has frequently indicated that a state's interest in maximizing the quality of its public work force is an important one which may justify restrictions that otherwise might be constitutionally doubtful.

Quite arguably, based on this Court's decisions, New York could not constitutionally make such distinctions after the fact.

An example is that New York could not declare in 1946 that state residents... that persons who had gone to college in New York State in 1961 would receive tuition assistance grants, because that would discriminate against persons who had become residents of the State of New York subsequent to 1981.

But we submit there is no doubt that prospectively in 1981, New York could have adopted tuition support grants to persons who were residents in the state at that time, as this Court's decisions is that area have made clear.

We certainly concede that New York could have drafted this statute and could have framed its constitutional provisions in such a way as to more closely and more precisely retained its objectives, and perhaps the plaintiffs in this case in fact are as well qualified as some other people who received a preference under New York statute.

But the distinction New York makes, we submit, is a rational one in view of the critical incentive purposes.

New York's constitutional provision does encourage service both in the military and in civil service employment, and those are legitimate objectives and this Court has frequently said that--

Unidentified Justice: Is there anything in the record to support that statement, the statement that it does increase the numbers?

Mr. Hermann: --No, Your Honor, there is nothing in the record.

The case came up on initial motions for summary judgment.

Unidentified Justice: It's just your statement?

Mr. Hermann: That's correct.

It is an incentive purpose that has historically been given for the statute, and whether... we don't know whether this constitutional provision encourages one or 100 people to do that, but I think it can clearly be said to do that in some number of cases.

To return for a moment to the Zobel and Hooper decisions, both the Alaska dividend statute and the New Mexico property tax exemption, which were invalidated by this Court, were after the fact enactments designed to compensate prior status or prior conduct.

Neither had a prospective purpose related to some legitimate state objective.

Unidentified Justice: You think that's the bright line between those cases and this one?

Mr. Hermann: Yes, I do, that in both instances, whether for a defined objective such as rewarding past military service or an undefined objective such as simple residence in the state, both enactments were entirely retrospective and served no incentive function of the kind that we're describing here.

In fact, in Hooper there wasn't even a claim that they did serve any such prospective function.

Unidentified Justice: While I have you interrupted, does New York have difficulty in recruiting people for public service?

Mr. Hermann: No, it doesn't, as far as I'm aware.

New York has a very large public service force, larger than some citizens would like it to be.

Unidentified Justice: Are there long waiting lines to get jobs?

Mr. Hermann: It frequently does, yes.

Unidentified Justice: So that, your argument about wanting all these people back in public service rings a little hollow.

Mr. Hermann: Well, it's twofold.

It's wanting them to come back to the state, and wanting them to come back to the state to utilize their special attributes in the public service.

It's not because New York is short on public sector applicants.

It's because New York does feel some debt of gratitude to those people and wants them back.

Unidentified Justice: If the jobs are all full, it's a little hard to get in no matter how hard you work?

Mr. Hermann: Certainly, one of the underlying justifications is not only that veterans should be compensated, but that they are an especially important, desirable part of the work force, and this--

Unidentified Justice: And you give them an advantage over other people?

Mr. Hermann: --Yes, we do.

We give veterans an advantage and disabled veterans get an additional preference.

Unidentified Justice: So, that advantage would be true if someone comes from Puerto Rico too, that served in the Armed Services?

Mr. Hermann: That's true.

We certainly don't claim that that person doesn't possess the attributes necessary to perform public service effectively in New York.

I would point out that the Court in Hooper did explicitly recognize that veterans' benefit statutes which conditioned residency... which conditioned the granting of preferences to residency in the state at the time of induction might indeed present a wholly different consideration from the ones... from the statute under consideration there, and that's noted in both the majority and the dissenting opinions.

Unidentified Justice: But in terms of encouraging movement, coming back to New York and going to public service, if you granted this to all veterans you might attract other veterans that weren't born, and who didn't go into the service from New York, to move to New York and to go into public service there.

Mr. Hermann: That's correct, and New York does not attempt to discourage persons from doing so.

Unidentified Justice: You don't give them this advantage?

Mr. Hermann: We don't give them this advantage, but neither does New York fence them out.

Unidentified Justice: But it would encourage this movement if you did, to give them that advantage?

It would encourage it just as much as it would encourage veterans to return?

Mr. Hermann: Well, it would not give the incentive as effectively to those people who had been New York residents to come back home, if the preference were more widely available to persons from the other 49 states.

But even if that's correct, that there is no special attribute to a New York... to a prior New York resident who has served in the military, it does not follow, it seems to us, that the law does not serve the rational purpose for which it was intended, and the objective of getting those residents to--

Unidentified Justice: I know, but shouldn't there be, in terms of their objectives shouldn't there be some difference between the two classes that you're comparing?

I mean, it may serve that, but the people you're alleged to be discriminating against would serve the purpose just as well.

Mr. Hermann: --Well, I think we would contend that it wouldn't serve it just as well but that the law would fail to... if that were the policy, the law would fail of its other purpose which is to encourage service in the military in the first place by New York residents, and the additional purpose, of course, of encouraging residents to return home.

Unidentified Justice: Do you think the law should be upheld solely on the single purpose of encouraging service in the military by New York residents?

Mr. Hermann: We think that's sufficient, yes.

I think the New York law furthers legitimate additional purposes, but I believe that the strongest justification for the law is encouraging service.

Unidentified Justice: It just means that if you happen to be a resident on a certain time--

Mr. Hermann: It is not a durational residency requirement.

Unidentified Justice: --But it is residence at a certain time?

Mr. Hermann: It's a fixed point residency requirement and indeed we think that's crucial in terms of the right to travel argument, because we believe New York's provision does not penalize the--

Unidentified Justice: Doesn't that have its roots in the business of granting bounties as they did in the Civil War and earlier?

Mr. Hermann: --I think it does.

Unidentified Justice: No one would suggest that New York had any obligation to grant a bounty to somebody from New Hampshire to join the army, but they could limit it to their own?

Mr. Hermann: I think has historically done so.

Unidentified Justice: That suggests that if they do it after the event they can have the same limitation?

Mr. Hermann: I believe that's correct, although I believe New York's promise as a part of its Constitution is a clearly prospective one.

In terms of the right to travel, we believe that the provision cannot be said to penalize the right to travel and that... certainly it wasn't true in this case.

I just point out, this is not a class action.

This is an action brought by two individuals who had been residents of the State of New York for more than ten years before applying for the veterans' preference credits here.

Ultimately one of them did obtain civil service employment, as do many non-residents and non-resident veterans.

But this Court's decisions, I think, make clear that the claimed penalty on the right to travel has to be examined on a case by case basis in view of the objectives of the statutes and the requirements of the statute.

New York's Constitution as noted seeks to encourage several things.

Anyone contemplating service in the military during wartime or any other time is free to move to the state to help the state fulfill that purpose, if they subsequently wish to collect that reward, and in terms of the right to travel, we submit that that is the critical time and the three-judge Court opinion in August against Bronstein, we submit, was correct in analogizing this situation to this Court's decision in 1973 at the time it was deciding these durational residency cases.

In Spatt against New York, it was a summary affirmance of this Court upholding the restriction of New York State tuition grants to New York residents only.

We submit that the claim that the plaintiffs advance in this case is analogous to a claim that might be made on behalf of the California resident who, having gone to a state college in New York at some previous time, subsequently moved to New York to claim the tuition refund.

The claimed inequality doesn't exist because it ignores the incentive purposes of the law, the purpose of the law in the tuition situation being to encourage state residents to go to state colleges.

Her right to travel, we submit, would not be penalized by such a limitation because she was free at the time she lived in California to move to the State of New York to obtain state scholarship assistance if she wanted.

I would point out one more thing about the statute, and that is that it's in terms of the right to travel that its effect is quite modest, as Judge Friendly described it in that opinion I mentioned a moment ago, and dissipates over time.

It's a provision that can be used on one occasion for one appointment and that the class of veterans who are eligible for this benefit is steadily diminishing, I would point out, because for the past ten years at least no one has been able to satisfy the requirement of service during time of war.

Thus, this case is not like the Zobel case, we submit, where there was an ever-increasing class of persons who were given preferential treatment based solely on their length of residence.

Again, in terms of the right to travel, we believe that Justice Brennan's concurring opinion in Zobel illustrates here why there was no denial of the right to travel, for the same reason that there was no denial of equal protection, and that is that the State's concern was not solely with rewarding past conduct, whether... or past contributions whether those contributions were defined or undefined.

Here, as that concurring opinion put it, the business of the state was not with the past or with the present, and one such item of business which the Court... which that opinion noted was filling current needs, and we submit that New York's statute and New York's constitutional provision are clearly aimed at doing so and do not depend entirely on a post hoc past contributions rationale to support them.

I believe they are there for--

Unidentified Justice: Mr. Hermann, I suppose that like all those rationality cases, there are inequalities here.

Suppose a young man grew up on a farm in North Dakota and didn't like it and decided to come to the big city, and went there and lived there for a year, he was a resident, and the war came along and he enlisted.

After the war his father died in the meantime so he went back to be farm in North Dakota, spent a lot of time there, got his brother interested in the farm and discovered this about the advantage in public service, his bonus points, and after 20 years came back to your city and lived there for six months.

He's entitled to bonus points?

Mr. Hermann: --He would be entitled to claim them.

Unidentified Justice: In contrast to the two respondents here who have lived in your state a number of years who are not entitled to them?

Mr. Hermann: That's correct.

Unidentified Justice: It is unequal in application?

Mr. Hermann: Well, it is differential in its application.

We think that New York targets a specific group for a specific person.

I think this Court's decisions don't make clear that that kind of imprecision, perhaps exemplified by the facts in this case, is not fatal, however, under a rational relationship standard.

I would reserve the balance of my time.

Chief Justice Burger: Mr. Kimerling.

ORAL ARGUMENT OF KENNETH KIMERLING, ESQ. ON BEHALF OF THE APPELLEES

Mr. Kimerling: Mr. Chief Justice, and may it please the Court:

Let me briefly review the facts here as they assist in our understanding of the irrationality of New York's veterans' preference system.

In order to qualify... be treated as a veteran in New York, you must, one, serve in the armed forces during time of war.

Two, you must be honorably discharged from that service.

Three, you must pass a civil service examination.

Four, you must be a present resident of the state of New York and fifth, and lastly, you must have been a resident at the time of induction.

It is this past and present residency requirement that is at issue here, and which denies the plaintiffs here from being treated as veterans.

Plaintiff Baez Fernandez entered the armed forces from Puerto Rico and served from 1958 through 1960, at which time he was dishonorably... excuse me, honorably discharged and entered the reserves.

He moves to New York in 1968, settles in New York, and in 1970 he's called up from the reserves, serves in active duty, is injured, and receives a service-related disability, but he's not a veteran.

If he had not joined the reserves but had come to New York and then re-enlisted in 1970 he would have been treated as a veteran, but because he did his patriotic duty and stayed in the reserves he's not a veteran.

The result of that, in 1981 and in 1982 he's denied three appointments, which his ten points as a disabled veteran would have gotten him.

Those appointments were cancelled when it was learned that he entered the service from Puerto Rico and not from New York.

Mr. Soto-Lopez entered the service also from Puerto Rico in 1961 and served through 1963.

Also this was in time of war.

The 1973 service of Mr. Baez-Hernandez was his time of war service during the Vietnam era.

Mr. Soto-Lopez, after serving during the Vietnam era, in 1965 comes to New York, settles and becomes a resident of the state of New York.

Thus he's a veteran serving during time of war, honorably discharged, present resident for 15 years, and then in 1982 is denied being treated as a veteran because he had not been inducted from New York.

The original defendants here were agencies of the City of New York who would have been plaintiff's employers.

They have not appealed.

The appellant is only the Attorney General who intervened pursuant to 28 U.S.C. 24-03-B, solely to defend the constitutionality of these provisions.

None of the relief that plaintiffs have obtained or have sought runs against this appellant.

Unidentified Justice: What inference do you draw from that fact that's relevant to the argument here?

Mr. Kimerling: I think the inference is that this Court lacks jurisdiction.

And let me amplify on that if I could, a moment.

This question, that is whether or not the 24-03 grants standing in this situation has never been resolved by a court.

It was raised previously in this Court and a decision in 1943 in United States versus Johnson, but left unresolved.

The issue is very simply that there is no case of controversy between the plaintiff and the appellant here.

The case of controversy is between the plaintiff and the City of New York but was not appealed.

Unidentified Justice: Who was the Attorney General representing?

Mr. Kimerling: He is here in his ex officio capacity solely to defend the Constitution.

There is no monetary, or no other claim that runs against the Attorney General.

Unidentified Justice: Is he representing the State of New York?

Mr. Kimerling: He is representing the State of New York in its effort--

Unidentified Justice: And it is the State of New York whose statute this is?

Mr. Kimerling: --That is correct, but what I think is instructive--

Unidentified Justice: You make the jurisdictional argument in your brief?

Mr. Kimerling: --No, we have not.

It's frankly an issue that arose and became a parent to me in preparing for the argument, and--

Unidentified Justice: You've only got a half an hour.

Mr. Kimerling: --Well, let me continue then, if I may, briefly.

I think what helps assist this Court is reaching the issue, whether or not there is justiciability, is the Muskrat case, one of the first cases that dealt with advisory opinions.

In Muskrat, as this Court recalls, Congress tried to set up a jurisdictional provision to allow for the tests of constitutionality of legislation.

In Muskrat, in 1902, Congress granted certain Cherokee Indians rights.

In 1904 and '06, those rights were diluted by giving additional people benefits that the 1902 people had for themselves.

So, in 1907 Congress said, let's see whether this subsequent legislation, 1904 and '06 legislation, is constitutional.

So, it said, we grant jurisdiction to the Court of Claims.

We grant jurisdiction to the Supreme Court on appeal to hear a claim by four plaintiffs who are the beneficiaries of the 1902 legislation.

They can come to court as class representatives of those people, and the defendant shall be the Attorney General of the United States.

This Court in Muskrat then said there was not a case of controversy under Article 3, as the United States Attorney General did not have sufficient interest under Article 3 to create a case of controversy in regard to the real interest of the plaintiffs in the Muskrat case.

I think, in addition, this Court might want to look at the Boston Towboat case versus United States which is a 1943 decision.

The Boston Towboat Company, the company that intervened in a lower court case between the Cornell Steamboat Company and the United States, the ICC, the ICC had said that Cornell is covered by the Interstate Commerce Act.

Boston intervened in that case because it was a tugboat company in Boston, Cornell... there was a tugboat company in New York harbor.

It intervened, obviously, to hope to avoid a precedent which would say that tugboat companies should be covered under the Interstate Commerce Act.

After an adverse decision against Cornell, the Boston Tugboat Company, the intervenor, appealed to this Court and this Court denied and dismissed the appeal saying the intervenor who had come in solely because he was concerned about the precedential value as it would run against him, and indeed he was in court in Massachusetts against the Interstate Commerce Commission, there was no appeal jurisdiction.

And, I should point out that there was cast granted to the Cornell Steamboat Company at the same time.

Lastly, I think that the other case that helps in resolving this question is maybe the earliest decision about advisory opinions, the Hay-Burns case.

Unidentified Justice: Who filed the Notice of Appeal in this case?

Mr. Kimerling: Only the Attorney General.

Unidentified Justice: On behalf of whom?

Mr. Kimerling: Only on behalf of themselves, to defend the constitutionality of these provisions.

Unidentified Justice: Did he file... his jurisdictional statement names New York City.

Mr. Kimerling: He had to amend that when the Clerk pointed out to him that that was not the case.

There is a letter, indeed, from the Clerk to the City, saying they are not appellants.

Unidentified Justice: But you don't claim that the fact that the Attorney General is the appellant is any different than if the State of New York were appellant?

Mr. Kimerling: I don't think it makes a difference, that's correct, as long as the only issue is the precedential value of the--

Unidentified Justice: And it's your position that notwithstanding the statute that permits the State Attorney General to intervene in actions, to defend the constitutionality of the statute, if he loses in the state court, he cannot appeal that decision?

Mr. Kimerling: --That's correct.

That's absolutely correct, and I think a tangential issue that arises from that is whether he is bound by that opinion, having been a party.

I think this Court, in Mendoza, United States versus Mendoza, sort of resolves that by saying the Government is not bound in a non-mutual collateral estoppel situation, applied to the United States government.

I don't think principles there would be different.

Unidentified Justice: What do you deal with... in rules of this Court which say that all parties to the proceedings in the Court from which judgment appeal is being taken shall be deemed parties in this Court, unless the appellants have notified the Clerk of this Court in writing, the appellants' belief that one or more of the parties before has no interest in the outcome of the appeal?

Mr. Kimerling: One, I would point out that there is such a letter to the Clerk.

Unidentified Justice: I don't have it.

Mr. Kimerling: I'm sorry.

It's dated June 17th, 1995.

Unidentified Justice: It's in where?

Mr. Kimerling: It says, Mr. Stevens.

Unidentified Justice: Where is that?

Mr. Kimerling: Excuse me, where is that?

Unidentified Justice: Is that in your file?

Mr. Kimerling: It's in my file.

Unidentified Justice: Well, I don't have your file.

Mr. Kimerling: I appreciate that.

We did not raise this issue.

It's become an issue that Justice Rehnquist--

Unidentified Justice: I appreciate some of your views on the merits.

Mr. Kimerling: --Fine.

I'll be happy to turn to the merits.

The issue to be resolved here--

Unidentified Justice: Is that all, to my question?

Mr. Kimerling: --I'm sorry.

Unidentified Justice: Have you raised before this Court the fact that they are not parties?

Mr. Kimerling: No, we have not.

We have not presented it in our brief opposing the appeal, or in the merits brief.

It was, as I said, an issue that became apparent to me in preparing for the oral argument, and when Justice Rehnquist raised the obvious question, I answered that question.

Unidentified Justice: May I ask you before you go on to the merits, who wrote the letter of June 17th?

Mr. Kimerling: The Chief of the Appellate Division of the Corporation Counsel of the City of New York, Leonard Kerner.

Unidentified Justice: And he in substance says he has no interest in the case?

Mr. Kimerling: I'm sorry, I--

Unidentified Justice: I think it responds to Justice Marshall's quotation of the rules.

I don't want you to read a long letter, but--

Mr. Kimerling: --No, I'll read the first line.

"In reference to the above case. "

which is this, obviously,

"we wish to inform the Court that the City of New York is not participating in the appeal. "

Let me go further, Justice Marshall.

I think that even if they had not written that letter and were appellees here under that applicable rule, which they are not, I still think that there would be still a sincere article on the issue as to whether or not there is a case of controversy, because the appellant is the one presenting it and not the City of New York, but I don't think we have to reach that.

Unidentified Justice: --Counsel, may I suggest that your time is almost half gone now, and you haven't touched the merits yet.

Mr. Kimerling: Fine.

Thank you for reminding me of that.

As I started to say, I think that the issue here is what interest if any does the State of New York have in differentiating between its past and present... between its resident veterans based on past and prior residency, whether New York must show a compelling state interest or a substantial interest or must meet some lesser standard, need not be decided by this Court, as New York had been unable to articulate even a legitimate state interest.

The Court's decisions recently in Hooper and Zobel make it clear that states cannot legitimately distribute rights and benefits based on prior and past residency, and that's what's at issue here.

Plaintiffs stand in the same shoes as every other veteran.

They served in the armed forces, honorably discharged, present residents of the State of New York.

The only difference between them and those that obtained these benefits is their past and prior residency, so that the class that we're looking to that is the people who have past and prior residencies get the benefit.

Those that don't get the benefit, that is exactly what was at issue in--

Unidentified Justice: Mr. Kimerling, did this provision of New York operate prospectively?

Mr. Kimerling: --Let me address that, because obviously the Attorney General relies heavily on that.

It does not.

Let me make it... it operates retrospectively in the very same ways that the provisions in Hooper and Zobel operated retrospectively.

That is, they looked back to prior or past residency to determine the beneficiaries of certain provisions.

It is this looking back that was significant to the Court in those decisions.

It was not--

Unidentified Justice: I thought this was adopted before anybody went off to war to take advantage of it.

Mr. Kimerling: --That's right.

The retrospectiveness should be distinguished from after the fact, or retroactive legislation.

Indeed, in Hooper the Court noted that one of the purposes of encouraging resettlement in the state could not have been served because there was retroactive legislation.

But, what the Court noted in footnote 8 of that opinion was, it did have, although not raised by the parties, some prospective effects, some encouraging effects.

It encouraged people who had moved to the state before '76 to remain, it encouraged people who had lived in New Mexico prior to '76 to return.

So, it did have prospective effects.

Yet, the Court said in that footnote, it still could not meet the constitutional barrier because it still distinguished people based on past or prior residency.

In Zobel as well, I think if you look at the concurring opinions there, although the majority opinions did not reach the issue, the concurring opinions indicate that those... Alaska could have said, okay, in 1980 we're going to start distributing benefits and anybody who is a resident in 1980 has got one share.

By 1981 you've got... people who are living in 1980 have got two shares and the person that moves in 1981 has got one share.

This would not have, obviously, changed the results of the concurring opinions since it would still have relied on past or prior residency for distributing benefits, albeit prospective legislation... it is not the after the fact nature of the legislation but rather, it's retrospective looking back at past or prior residency which is important.

And that's exactly how New York's legislation is like that in Hooper and Zobel.

Let me turn to what New York argues very strenuously, is the purpose here, and that is to encourage service in the armed forces.

It's not quite that.

They're arguing, it encourages enlistment in the armed forces because they argue that at the time of enlistment we vest or distribute rights to future benefits.

That's their argument, and therefore they say, that's a crucial juncture in time, and therefore we can vest, you know, we can impose a bona fide residency requirement.

But, let's look... it's clear that that is not what is happening here in these provisions, and even if it were, it still wouldn't meet constitutional master.

Look at the language.

It doesn't define these as enlisted benefits.

It doesn't define an enlistee.

The provisions define a veteran, and the criteria for obtaining these benefits is not enlistment, it's service in the armed forces and honorable discharge and passing the Civil Service examination.

Unidentified Justice: Let me ask you, supposing the statutes, instead of giving veterans' benefits, provided that a person shall be deemed a veteran if he, one, is a New York resident at the time of enlistment: two, is a New York resident at the end of the war; and three, is honorably discharged.

If within 30 days after those things all happen, the veteran asks for $100, the state will give it to him.

Would that be unconstitutional, in your view?

Mr. Kimerling: Yes, it would.

It would.

It would be different from what we have here.

Unidentified Justice: Yes, I understand that.

Mr. Kimerling: And it would be unconstitutional because, as the Second Circuit pointed out, New York as no interest in encouraging the service, only its own.

New York's interest is in a common defense.

Unidentified Justice: How does the Second Circuit know what New York's interest is in a case like this?

Why doesn't New York have an interest in encouraging its own people to volunteer?

Mr. Kimerling: Oh, it does.

It does, but it doesn't have an interest in exclusion of encouraging others, because it has an interest in a common defense.

Unidentified Justice: But why doesn't... isn't New York able to deal with its own, and perhaps hope that other states will deal with their own?

Mr. Kimerling: They could, if they had legislation that did that.

It's not this legislation.

Unidentified Justice: Well, supposing this were December 7th, 1941, and the New York Legislature were in session, said, we want to do something to encourage New York people to enlist now or to go in the service and not be conscientious objectors if they're drafted, and get to be veterans, come back to New York and participate in public life in New York.

We want to do it constitutionally.

What could they do?

Mr. Kimerling: I think they could have a bounty at that time for anyone who showed up in the State of New York without any bona fide residency requirement.

Unidentified Justice: Well, we could have this law without the last requirement, namely, being a resident?

Mr. Kimerling: Being a prior resident as opposed to a present resident at the time the bounty--

Unidentified Justice: Well, are you saying that they couldn't limit it, then, to people who enlisted in New York when the Legislature sits down on December 8th, 1941, they couldn't limit their benefit to people who enlisted when they were residents of New York?

Mr. Kimerling: --No, because as I said, I think their interest has to be in everyone being in the armed services.

Unidentified Justice: But then, for all practical purposes, the state can really do nothing by way of encouraging enlistment or encouraging its residents to become veterans and return?

If they've got to give it to everybody, then it's just fiscally impossible to administer?

Mr. Kimerling: They can do it here.

It's not fiscally impossible.

Most states do not have this prior residency requirements.

Who comes to those states as veterans gets the benefit.

It's not unmanageable.

Unidentified Justice: But then it doesn't encourage people from New York to serve?

Mr. Kimerling: Oh, yes, it does--

Unidentified Justice: Equally?

Mr. Kimerling: --Equally.

Unidentified Justice: How does it do that, if someone could have served from other states and simply come to New York afterwards?

Mr. Kimerling: Because they're all then treated equally as veterans.

Unidentified Justice: And if it encourages anybody it would encourage New Yorkers as much as anybody else?

Mr. Kimerling: Absolutely.

Absolutely, Justice White.

But, I think it's important to point out that that's not what's at issue here.

I think Justice White pointed out, it's not only enlistees who are beneficiaries, it's draftees.

Moreover, it's not only those that enlist during time of war who are the beneficiaries.

You can enlist at any time as long as you serve during time of war and that's why these are, as you pointed out, Justice Rehnquist, really provisions to reward and compensate for that service.

That's what's determinative.

Unidentified Justice: I just wasn't entirely clear.

Here you've got two residency requirements, before the war and after.

Are you saying either one would be enough to knock it out, or do you rely on both?

Mr. Kimerling: Well, we certainly don't have to look at the second because our clients are present residents, but I think the first one, the prior residency, is the one that's at issue here.

Unidentified Justice: Well, suppose you didn't have that but you had a postwar residency requirement?

Mr. Kimerling: I think you have an altogether different question there.

You have a privileges and immunities question of residents versus nonresidents.

Unidentified Justice: You have to be a resident to work for the city, don't you?

Mr. Kimerling: No, that is not correct.

Unidentified Justice: You can live outside the state?

Mr. Kimerling: That's correct.

Unidentified Justice: You have to be a resident to get the bonus points?

Mr. Kimerling: That's correct, yes.

So, there's a distinction.

Unidentified Justice: In order to--

Mr. Kimerling: Well, there may be another issue here, but it's not presented by plaintiffs.

There is a State Court challenge, by the way, on that issue, ongoing.

But again, the provisions that we've been talking about hypothetically aren't what's at issue here.

One is, the language doesn't lend itself to that in any way.

Two, draftees and enlistees are treated differently... are treated the same.

Thirdly, regardless of when you enter the service, whether it's a time of war or not, you are entitled to the benefits.

Fourthly, if we look at the fact that disabled people are given additional benefits, thus indicating clear intent to compensate as opposed to encourage, the state is not encouraging people to become handicapped.

Lastly, as in Hooper, the legislation here is largely retroactive.

During the Civil War... excuse me, during the Vietnam War, it was three years after what New York deemed at the beginning of the war that they retroactively recognized the war in Vietnam.

So, for a three-year period, people who either enlisted or served were not encouraged by this legislation, and the state had not acted, but yet these were beneficiaries because they had served, and that's what the purpose was.

Unidentified Justice: --May I ask this question.

Mr. Kimerling: Yes.

Unidentified Justice: It's probably irrelevant to your case, but was there ever a declaration of war against North Vietnam?

Mr. Kimerling: No, there was not.

Unidentified Justice: How, then, could your client have any claim to be a veteran in the course of a war?

Mr. Kimerling: In only that the State of New York has defined the Vietnam War era, beginning on January 1st, 1963 and running through May of '75.

Unidentified Justice: Well, we refer to it as a war, but Congress never declared it as a war and Congress only has authority... only the Congress has the authority to do that.

Mr. Kimerling: That's why defendant's reliance... appellant's reliance on that 1946 Attorney General's opinion is really not very strong because you didn't have undeclared wars.

Now you have undeclared wars and it has to be defined to be self-executing.

It can't be self-executing.

People that served in Grenada and in Lebanon are not veterans, albeit they were shot at and some killed, obviously, but because New York hadn't deemed it a time of war, veterans from those eras are not covered.

But, let me go back to this retroactivity issue because I think it's parallel to what this Court looked at in Hooper.

In June of 1973 the New York State Legislature said, the Vietnam War is over, March 1973, the war is over.

Therefore if you enlist from now on, there are no benefits.

In 1983, it retroactively amended to be May of 1975.

Many of the men and women who enlisted in '73, '74 and '75 were not encouraged by this legislation at all.

They were discouraged if anything by New York's statement that the war was over in Vietnam, yet as of 1983 they are the beneficiaries.

So, I think it's clear that this new refinement, albeit of the Attorney General, really doesn't mesh with what the statute provides.

It is not what anyone was talking about then in terms of vesting benefits at the time of enlistment.

I've spent a good deal of my time on the equal protection arguments and how these provisions violate plaintiff's rights under the Equal Protection clause.

Let me turn briefly to the right to travel provisions, because I think under those provisions as well, New York State veterans' credit provisions fail to meet constitutional muster.

When states set up categories of present residents and then they distinguish among them based on past or prior residency, they distinguish based on newly migrated versus older residents, and these kinds of distinctions are the very kinds that the right to travel most appropriately deals with, and the right to travel here is substantially penalized and substantially burdened contrary to the appellant's suggestion.

Veterans' credits mean often the difference between unemployment and employment in a Civil Service career with all the attendant securities and benefits that those kinds of careers lend themselves to.

Not only can these credits be used at the entry level point, but veterans optionally can use them on promotional examinations, and finally at the time of layoff, a veteran is entitled to as many as five years additional seniority at the time of layoff to allow them to withstand layoffs.

So, these are substantial benefits, certainly more substantial than the $50 at issue in Zobel, and therefore the right to travel has been burdened here.

If we apply the equal protection analysis, New York must meet the compelling state interest test or at least some heightened scrutiny, and unable to articulate even a legitimate state purpose, they obviously cannot meet the compelling state interest test.

If we evaluate it under the privileges and immunities clause of Article 4, again New York State could not meet the two part test there, having been... they are not able... certainly not even attempting, but certainly not able to demonstrate that plaintiffs are some kind of evil, as I have already indicated.

They have all the attributes of every other veteran, and therefore there is no reason to exclude them and certainly the provisions here are not substantially related to the exclusion of them from civil service.

And lastly, if we had a balancing test that sort of looked at the state's interest in restricting the right to travel or burdening it versus the rights of free interstate travel and the benefits to be attained by that, New York's inability to articulate a legitimate state interest simply would allow the scales to tip in favor of equal treatment.

Unidentified Justice: Do you have any comment on this Court's summary affirmance of the August case?

Mr. Kimerling: The comment is simply that this Court's decision in Hooper and Zobel obviously indicated a doctrinal difference between the law at that time and the law as it existed--

Unidentified Justice: It certainly wasn't overruled, was it?

Mr. Kimerling: --It was not overruled explicitly, that's correct.

In conclusion, New York has no legitimate interest in benefiting its own.

When plaintiffs move to New York they become New York's own.

It's the center of our Constitution that when someone moves to a state, they become its own and prior residency cannot stand as a barrier for them to be treated equally--

Unidentified Justice: May I ask on that question, I realize your case is not a cash benefit case, but I like to try to think of the different forms of benefit.

I take it we have to knock out the prior residency.

Can you have a durational residency requirement to qualify for the postwar benefit?

Mr. Kimerling: --Let's say there is a legitimate state interest served by post-residency requirement.

Unidentified Justice: Well, I'm just... maybe this argument doesn't acknowledge much of a state interest.

Mr. Kimerling: Well, I'm not--

Unidentified Justice: It seems to me that if you--

Mr. Kimerling: --No, the state has--

Unidentified Justice: --Prewar residency requirement, and once you have a post-war durational requirement, it seems to me your client could move from state to state, collecting bonuses, and why not?

Might have gotten one in Puerto Rico, and one--

Mr. Kimerling: --One, many states have provisions which disallow that.

If you get the benefits in one, you can't collect in another.

But secondly, while I say there is a question, I'm not confident that this Court would agree with me.

The reason I say that is in the Camden County case, the Construction and Building Trades Council of Camden County, this Court raised an issue as to whether or not limits on public service jobs could... that excluded nonresidents could survive a privileges and immunities challenge.

It said it still had to go through the analysis.

It didn't say it would clearly survive because a state's interest in civil service only being the state civil service and therefore benefiting only its own residents, or whether or not it would not survive a privileges and immunities challenge.

But, it said that the question had to be answered, and that's why in terms of post-residency requirements, there is a question on the privileges and immunities clause which is very distinct from the prior residency requirements we are talking about and how that really goes to the heart of the right to travel and the heart of the equal protection clause, and the equality of citizenship that comes from someone who migrates to the state.

Unidentified Justice: --Mr. Kimerling, to get back to the old question, isn't it true that the state intervened as a party defendant, and was a party defendant below?

Mr. Kimerling: That's correct.

Unidentified Justice: Well, didn't that answer my question, if you had told me that?

Mr. Kimerling: I'm sorry, I didn't understand that to be your question.

The intervenor is a party below, but let me point out that in the Boston Towncat case that was the same factual setting.

Boston intervened in the three-judge bench decision involving the Cornell Steamboat Company, so that they had standing below as an intervenor.

The question is whether they can independently appeal, and that's the question that this case presents, albeit in that case there wasn't a clear statutory provision as there was here under 2403, but nevertheless in Muskrat despite a very clear direction from Congress in Muskrat about jurisdiction, this Court found that Article III did not... Article III overcame that... thank you, Mr. Chief Justice.

Chief Justice Burger: You have nothing further, Mr. Solicitor General?

Mr. Hermann: Yes, Your Honor.

Just on the retrospectivity point, New York has, as I have mentioned, both a constitutional commitment and a statutory commitment.

Part of the reason for having these provisions in both places is that it's obviously necessary for the Legislature frequently to define and redefine time of war, but also New York wanted to emphasize the fundamental nature of its commitment.

Obviously, any statute which has a requirement of service during time of war must at some point be amended to define that time of war.

I'm sure the State of New York would have preferred to define prospectively in 1967 the end of the Vietnam War, but of course it was unable to do so, so that built into any such requirement is that... is the obligation of the State Legislature at certain points in time, to define time of war.

What New York did here, unlike what New Mexico did in Hooper against Bernalillo, is frequently during the Vietnam period to define time of war as including the past six months, the past year or whatever, and it did that repeatedly through the course of that time, and indeed those frequent amendments to the New York statute show the depth of New York's commitment to this policy.

Just to answer Justice Powell's question about the Vietnam War and its being an undeclared war, New York's provision on this tracks very closely, as does New York statute, the federal provisions which define veterans' benefits in terms of time of war.

Congress... the relevant federal statute speaks of the Vietnam era, and the President declared several times during the course of the early '70s the end of the Vietnam era, and for statutory purposes that sufficed under federal programs.

New York adopted the same terminology as far as treating the Vietnam era as a time of war, since the federal government had done the same thing, in essence.

ORAL ARGUMENT OF ROBERT HERMANN, ESQ. ON BEHALF OF THE APPELLANT -- REBUTTAL

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until Tuesday next at 10:00.