Hooper v. Bernalillo County Assessor
472 U.S. 612 (1985)

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U.S. Supreme Court

Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985)

Hooper v. Bernalillo County Assessor

No. 84-231

Argued February 20, 1985

Decided June 24, 1985

472 U.S. 612

APPEAL FROM THE COURT OF APPEALS OF NEW MEXICO

Syllabus

A New Mexico statute exempts from the State's property tax $2,000 of the taxable value of property of honorably discharged veterans who served on active duty during the Vietnam War for at least 90 continuous days, but limits the exemption to veterans who were New Mexico residents before May 8, 1976. Appellants, an otherwise qualified Vietnam veteran and his wife, established residence in New Mexico in 1981 and applied for the tax exemption for the 1983 tax year with respect to their jointly held real property in Bernalillo County. Appellee County Assessor denied the claim because of the residence requirement, and the County Valuation Board upheld the denial, rejecting appellants' contention that the residence requirement violated their Fourteenth Amendment right to equal protection of the law. The New Mexico Court of Appeals affirmed.

Held: The New Mexico statute's residence requirement violates the guarantees of the Equal Protection Clause. Pp. 472 U. S. 616-624.

(a) By dividing resident Vietnam veterans into two groups, based on whether they were residents before May 8, 1976, the statute creates a fixed permanent distinction between classes of concededly bona fide residents. When a state distributes benefits unequally, the distinctions it makes are subject to scrutiny under the Equal Protection Clause. Under the minimum-rationality test, a law will survive scrutiny if the distinction rationally furthers a legitimate state purpose. Pp. 472 U. S. 616-618.

(b) The distinction New Mexico makes between veterans who established residence before May 8, 1976, and those veterans who arrived in the State thereafter bears no rational relationship to the State's asserted objective of encouraging Vietnam veterans to move to New Mexico. The legislature did not set the eligibility date until 1983, long after the triggering event occurred, and thus cannot plausibly encourage veterans to move to the State by passing such retroactive legislation. Pp. 472 U. S. 619-620.

(c) With regard to the asserted purpose of the statute to reward veterans who resided in the State before May 8, 1976, for their military service, the component of compensating veterans for past contributions is plainly legitimate. Consistent with this policy, a state may award certain benefits to all its bona fide veterans, because it then is making neither an invidious nor an irrational distinction among its residents. The New Mexico statute, however, confers a benefit only on "established" resident veterans -- those who resided in the State before May 8,

Page 472 U. S. 613

1976 -- and the State seeks to justify this distinction on the basis that those veterans who left their homes in New Mexico to fight in Vietnam, as well as those who settled in the State within the few years after the war ended, deserve to be treated differently from veterans who establish New Mexico residence after May 8, 1976. Even assuming that the State may legitimately grant benefits on the basis of a coincidence between military service and past residence, the New Mexico statute's distinction as between two categories of resident veterans is not rationally related to the State's asserted legislative goal. Pp. 472 U. S. 620-622.

(d) The New Mexico statute, by singling out previous residents for the tax exemption, rewards only those citizens for their "past contributions" toward the Nation's military effort in Vietnam. Such an objective is not a legitimate state purpose. Zobel v. Williams,457 U. S. 55. The State may not favor established residents over new residents based on the view that the State may take care of "its own," if such is defined by prior residence. Newcomers, by establishing bona fide residence in the State, become the State's "own" and may not be discriminated against solely on the basis of their arrival in the State after May 8, 1976. Pp. 472 U. S. 622-623.

(e) This Court will not rule on the severability of the unconstitutional residence requirement from the balance of the New Mexico veterans' tax-exemption statute. It is for the New Mexico courts to decide, as a matter of state law, whether the legislature would have enacted the statute without the invalid portion. Pp. 472 U. S. 623-624.

101 N.M. 172, 679 P.2d 840, reversed and remanded.

BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, J., filed a concurring opinion, post, p. 472 U. S. 624. STEVENS, J., filed a dissenting opinion, in which REHNQUIST and O'CONNOR, JJ., joined, post, p. 472 U. S. 624. POWELL, J., took no part in the decision of the case.

Page 472 U. S. 614

CHIEF JUSTICE BURGER delivered the opinion of the Court.

We noted probable jurisdiction to decide whether a New Mexico statute that grants a tax exemption limited to those Vietnam veterans who resided in the State before May 8, 1976, violates the Equal Protection Clause of the Fourteenth Amendment.

I

Pursuant to Art. VIII, § 5, of the New Mexico Constitution, the New Mexico State Legislature has granted annual property tax exemptions to residents who served in the Armed Forces. As applied to Vietnam veterans currently residing in New Mexico, § 7-37-5 of the New Mexico Statutes [Footnote 1] exempts $2,000 of the taxable value of property for any honorably discharged Vietnam veteran who served on active duty during the Vietnam War for at least 90 continuous days, N.M.Stat.Ann. §§ 7-37-5(C)(1) and (2) (1983), and who was a New Mexico resident before May 8, 1976, § 7-37-5(C)(3)(d). [Footnote 2]

Page 472 U. S. 615

Appellants, Alvin D. Hooper and his wife Mary, established residence in New Mexico on August 17, 1981. During the Vietnam War, Alvin Hooper had served for over 90 continuous days as a member of the United States Army; Hooper was honorably discharged in September 1965. For the 1983 tax year, the Hoopers applied for the $2,000 veterans' tax exemption with respect to their jointly held real property in Bernalillo County. Appellee, the Bernalillo County Assessor, denied the claim because Hooper had not been a state resident before May 8, 1975.

Appellants challenged § 7-37-5(C)(3)(d) as violative of their right to equal protection of the law and their constitutional right to migrate to New Mexico. After a hearing, the Bernalillo County Valuation Board rejected appellants' constitutional challenge and upheld the Assessor's denial of the tax exemption. [Footnote 3]

The New Mexico Court of Appeals affirmed. 101 N.M. 172, 679 P.2d 840, cert. denied, 101 N.M. 77, 678 P.2d 705 (1984). The court, noting that the statute did not affect "such fundamental interests as voting, welfare benefits, or public medical assistance," concluded that the statute did not unconstitutionally burden an exercise of the right to travel. Id. at 175, 679 P.2d at 843. The court held that the statute

Page 472 U. S. 616

was consistent with the Equal Protection Clause because it "reflects legitimate state purposes" and "bears a reasonable relationship to those purposes." Ibid. The court reasoned that "[a] state's interest in expressing gratitude and rewarding its own citizens for honorable military service is a rational basis for veterans' preferences," and that the state legislature is "entitled to limit the period of time within which [veterans] may choose to establish residency." Id. at 176, 679 P.2d at 844.

We noted probable jurisdiction. 469 U.S. 878 (1984). We reverse.

II

The New Mexico veterans' tax exemption differs from the durational residence requirements the Court examined in Sosna v. Iowa,419 U. S. 393 (1975); Memorial Hospital v. Maricopa County,415 U. S. 250 (1974); Dunn v. Blumstein,405 U. S. 330 (1972); and Shapiro v. Thompson,394 U. S. 618 (1969). The statutes at issue in those cases conditioned eligibility for certain benefits, otherwise available on an equal basis to all residents, on a new resident's living in the State for a fixed minimum period. [Footnote 4] The durational residence requirements purported to assure that only persons who had established bona fide residence received the benefits provided residents of the States.

The New Mexico statute does not impose any threshold waiting period on those resident veterans seeking the tax exemption; resident veterans are entitled to the exemption provided they satisfy the statute's other criteria. Nor does the statute purport to establish a test of the bona fides of state residence. Instead, the tax exemption contains a fixed-date residence requirement. The statute thus divides

Page 472 U. S. 617

resident Vietnam veterans into two groups: resident veterans who resided in the State before May 8, 1976, qualify for the exemption; [Footnote 5] resident veterans who established residence after that date do not. Like the Alaska dividend distribution law examined in Zobel v. Williams,457 U. S. 55 (1982), the tax exemption statute thus creates "fixed, permanent distinctions between . . . classes of concededly bona fide residents" based on when they arrived in the State. Id. at 457 U. S. 59.

Appellants established residence in New Mexico several months after the 1981 amendment set the eligibility date as May 8, 1975. Appellants have no quarrel with the legislature's changing the eligibility date after veterans have chosen to reside in New Mexico, for the enactment date is irrelevant to qualification for the tax exemption. Appellants instead challenge the distinction made by the State within the class of Vietnam veterans who currently are bona fide residents. Their challenge is that the exemption is accorded to those resident Vietnam veterans who resided in the State sometime before May 8, 1976, but not to those Vietnam veterans who have arrived since then.

Page 472 U. S. 618

When a state distributes benefits unequally, the distinctions it makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment. [Footnote 6] Generally, a law will survive that scrutiny if the distinction rationally furthers a legitimate state purpose. Appellants claim that the distinction made by the New Mexico statute should be subjected to the higher level of scrutiny applied to the durational residence requirements in Memorial Hospital v. Maricopa County, supra, and Shapiro v. Thompson, supra. Alternatively, appellants claim that the statute cannot withstand the minimum rationality inquiry applied to the Alaska dividend distribution law in Zobel v. Williams, supra. Appellee, on the other hand, asserts that the statute need only satisfy the latter standard of review. As in Zobel, if the statutory scheme cannot pass even the minimum rationality test, our inquiry ends.

III

The New Mexico Court of Appeals accepted two justifications for the distinction made by the Vietnam veterans' tax exemption statute: the exemption encourages veterans to settle in the State and it serves as an expression of the

Page 472 U. S. 619

State's appreciation to its "own citizens for honorable military service." 101 N.M., at 176, 679 P.2d at 844. Before this Court, the latter purpose has been refined as assisting "veterans who, as [New Mexico] citizens, were dependent on [the State] during a time of upheaval in their lives." Brief for Appellee 22. This rationale assumes that the State accepted a special responsibility toward those veterans who "picked up or laid down the burdens of war" as state residents. [Footnote 7]

A

The distinction New Mexico makes between veterans who established residence before May 8, 1976, and those veterans who arrived in the State thereafter bears no rational relationship to one of the State's objectives -- encouraging Vietnam veterans to move to New Mexico. The legislature set this eligibility date long after the triggering event occurred. Seen 2, supra. The legislature cannot plausibly encourage veterans to move to the State by passing such retroactive legislation. [Footnote 8] It is possible that some Vietnam veterans, at least since 1981, might have been discouraged from settling in New Mexico given the State's exclusion of new resident veterans from a benefit available only to those veterans who resided in the State before May 8, 1976.

"The separation of residents into classes hardly seems a likely way to persuade

Page 472 U. S. 620

new [residents] that the State welcomes them and wants them to stay."

Zobel v. Williams, 457 U.S. at 457 U. S. 62, n. 9. [Footnote 9]

B

The second purpose of the statute -- rewarding veterans who resided in the State before May 8, 1976, for their military service was primarily relied upon by the New Mexico Court of Appeals to support the statute's distinction between resident veterans. One component of this rationale is, of course, plainly legitimate; only recently we observed that "[o]ur country has a longstanding policy of compensating veterans for their past contributions by providing them with numerous advantages." Regan v. Taxation With Representation of Wash.,461 U. S. 540, 461 U. S. 551 (1983) (footnote omitted); see Personnel Administrator of Mass. v. Feeney,442 U. S. 256, 442 U. S. 279, n. 25 (1979). And as Judge Friendly has noted, the various preferences for veterans are grounded in a "[d]esire to compensate in some measure for the disruption of a way of life . . . and to express gratitude. . . . " Russell v. Hodges, 470 F.2d 212, 218 (CA2 1972). See Regan v. Taxation With Representation of Wash., supra, at 461 U. S. 551.

Consistent with this policy, the State may award certain benefits to all its bona fide veterans, because it then is making neither an invidious nor irrational distinction among its residents. Resident veterans, as a group, may well deserve preferential treatment, [Footnote 10] and such differential treatment visa-vis non-veterans does not offend the Equal Protection Clause. See, e.g., Personnel Administrator of Mass. v. Feeney, supra; see also Johnson v. Robison,415 U. S. 361 (1974).

Page 472 U. S. 621

The New Mexico statute, however, does not simply distinguish between resident veterans and non-veteran residents; it confers a benefit only on "established" resident veterans, i.e., those who resided in the State before May 8, 1976. Appellee and the State justify this distinction on the basis that those veterans who left their homes in New Mexico to fight in Vietnam, as well as those who settled in the State within the few years after the war ended, deserve to be treated differently from veterans who make New Mexico their home after May 8, 1976. The legislature is said to have decided it owed a special responsibility to these "established" veterans.

Appellee and the State's evaluation of this legislative judgment may be questioned on its own terms. Those who serve in the military during wartime inevitably have their lives disrupted; but it is difficult to grasp how New Mexico residents serving in the military suffered more than residents of other States who served, so that the latter would not deserve the benefits a State bestows for national military service. Moreover, the legislature provided this economic boon years after the dislocation occurred. Established state residents, by this time, presumably had become resettled in the community and the modest tax exemption hardly bears directly on the transition to civilian life long after the war's end. Finally, the benefit of the tax exemption continues for the recipient's life. The annual exemption, which will benefit this limited group of resident veterans long after the wartime disruption dissipated, is a continuing bounty for one group of residents rather than simply an attempt to ease the veteran's return to civilian life.

Even assuming that the State may legitimately grant benefits on the basis of a coincidence between military service and past residence, [Footnote 11] the New Mexico statute's distinction

Page 472 U. S. 622

between resident veterans is not rationally related to the State's asserted legislative goal. The statute is not written to require any connection between the veteran's prior residence and military service. [Footnote 12] Indeed, the veteran who resided in New Mexico as an infant long ago would immediately qualify for the exemption upon settling in the State at any time in the future regardless of where he resided before, during, or after military service.

C

Stripped of its asserted justifications, the New Mexico statute suffers from the same constitutional flaw as the Alaska statute in Zobel. [Footnote 13] The New Mexico statute, by singling out previous residents for the tax exemption, rewards

Page 472 U. S. 623

only those citizens for their "past contributions" toward our Nation's military effort in Vietnam. Zobel teaches that such an objective is "not a legitimate state purpose." 457 U.S. at 457 U. S. 63. The State may not favor established residents over new residents based on the view that the State may take care of "its own," if such is defined by prior residence. Newcomers, by establishing bona fide residence in the State, become the State's "own" and may not be discriminated against solely on the basis of their arrival in the State after May 8, 1976. See, e.g., Vlandis v. Kline,412 U. S. 441, 412 U. S. 449-450, and n. 6 (1973); Shapiro v. Thompson, 394 U.S. at 394 U. S. 632-633; Passenger Cases, 7 How. 283, 48 U. S. 492 (1849) (Taney, C.J., dissenting).

The New Mexico statute creates two tiers of resident Vietnam veterans, identifying resident veterans who settled in the State after May 8, 1976, as in a sense "second-class citizens." This discrimination on the basis of residence is not supported by any identifiable state interest; the statute is not written to benefit only those residents who suffered dislocation within the State's borders by reason of military service. Zobel made clear that the Constitution will not tolerate a state benefit program that

"creates fixed, permanent distinctions . . . between . . . classes of concededly bona fide residents, based on how long they have been in the State."

457 U.S. at 457 U. S. 59. [Footnote 14] Neither the Equal Protection Clause, nor this Court's precedents, permit the State to prefer established resident veterans over newcomers in the retroactive apportionment of an economic benefit.

D

We decline appellants' request to rule on the severability of the unconstitutional aspect of the New Mexico veterans' tax

Page 472 U. S. 624

exemption statute. If the fixed-date residence requirement, § 7-37-5(C)(3)(d), were excised from the statute, the exemption would be available to all current resident veterans who served the requisite 90 days during the Vietnam War and received honorable discharges. It is for the New Mexico courts to decide, as a matter of state law, whether the state legislature would have enacted the statute without the invalid portion. See, e.g., Zobel v. Williams, supra, at 457 U. S. 64-65; Champlin Refining Co. v. Corporation Comm'n of Oklahoma,286 U. S. 210, 286 U. S. 234 (1932); State v. Spearman, 84 N.M. 366, 368, 503 P.2d 649, 651 (App.1972).

IV

We hold that the New Mexico veterans' tax exemption statute violates the guarantees of the Equal Protection Clause of the Fourteenth Amendment. Accordingly, the judgment of the New Mexico Court of Appeals is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

JUSTICE POWELL took no part in the decision of the case.

[Footnote 1]

Section 7-37-5 also provides the $2,000 property tax exemption, under substantially similar conditions, to certain resident veterans of World War I, World War II, and the Korean War. The one variable is the eligibility date: World War I veterans must have been residents of New Mexico before January 1, 1934; World War II veterans must have been residents before January 1, 1947; and Korean War veterans must have been residents before February 1, 1955. N.M.Stat.Ann. §§ 7-37-5(C)(3)(a), (b), and (c) (1983).

[Footnote 2]

The initial statute extending an exemption to Vietnam veterans required that the veteran have been a New Mexico resident before "entering the armed services from New Mexico" and also that the veteran have been "awarded a Vietnam campaign medal for services in Vietnam" during a prescribed period. 1973 N.M. Laws, Ch. 258, p. 1052. In 1975, the state legislature eliminated the medal requirement but retained the condition that the veteran have entered the Armed Forces from the State. 1975 N.M. Laws, Ch. 3, p. 11.

In 1981, the legislature dropped the requirement that the veteran have entered the military from New Mexico. The new statute extended the tax exemption to any Vietnam veteran who "was a New Mexico resident prior to . . . May 8, 1975." 1981 N.M.Laws, Ch. 187, p. 1078. In 1983, the statute was amended to provide the exemption to any Vietnam veteran "who was a New Mexico resident prior to . . . May 8, 1976." 1983 N.M. Laws, Ch. 330, p. 2112.

[Footnote 3]

The state legislature changed the eligibility date to May 8, 1976, after appellants had commenced administrative proceedings to challenge the denial of the exemption. The Board's decision relied on the amended 1976 date. Before the New Mexico Court of Appeals, appellee conceded that this date was inapplicable to the 1983 tax year because the legislature intended that it apply starting with the 1984 tax year. Accordingly, appellants' claimed exemption should have been denied on the basis of the 1975 eligibility date. Presumably because this discrepancy had no bearing on the constitutional issue, the Court of Appeals did not mention this point. For the sake of clarity, we analyze the statute using the 1976 eligibility date.

[Footnote 4]

In the durational residence cases, the Court reviewed state laws which established waiting periods on access to divorce courts, Sosna v. Iowa; eligibility for free nonemergency medical care, Memorial Hospital v. Maricopa County; qualification for voting rights, Dunn v. Blumstein; and receipt of welfare assistance, Shapiro v. Thompson.

[Footnote 5]

This eligibility date has a curious background, which is not explained simply as "one year [after] the final U.S. troop withdrawal [from Vietnam]." 101 N.M. 172, 176, 679 P.2d 840, 844, cert. denied, 101 N.M. 77, 678 P.2d 705 (1984). On January 27, 1973, the United States and other participants in the conflict signed the Vietnam cease-fire agreement in Paris, France. Agreement on Ending the War and Restoring Peace in Viet-Nam, Jan. 27, 1973, [1973] 24 U.S.T. 1, T.I.A.S. No. 7542. The last American troops were withdrawn from Vietnam on March 29, 1973.

By Proclamation, President Ford designated May 7, 1975, as the last day of the "Vietnam era." Proclamation No. 4373, 3A CFR 48 (1976). The Federal Government uses this date to determine eligibility for veterans' benefits for those persons who served in the Armed Forces during the Vietnam War. See 38 U.S.C. § 101(29), which defines the "Vietnam era" as that period beginning August 5, 1964, and ending May 7, 1975. In 1981, the New Mexico State Legislature adopted this date to determine eligibility for the Vietnam veterans' tax exemption. In 1983, the state legislature changed the date to May 8, 1976, presumably to extend a "grace period" to veterans choosing to reside in New Mexico. Seen 2, supra.

[Footnote 6]

The New Mexico Court of Appeals considered whether the veterans' tax exemption law violated appellants' constitutional right to travel. Despite disagreement over its source in the Constitution, compare Zobel v. Williams,457 U. S. 55, 457 U. S. 65 (1982) (BRENNAN, J., concurring), with id. at 457 U. S. 71 (OCONNOR, J., concurring in judgment), the Court has long held that the right to travel,

"when applied to residency requirements, protects new residents of a State from being disadvantaged because of their recent migration or from otherwise being treated differently from longer term residents."

Id. at 457 U. S. 60, n. 6; see, e.g., Memorial Hospital v. Maricopa County,415 U. S. 250, 415 U. S. 261 (1974); Shapiro v. Thompson,394 U. S. 618, 394 U. S. 629-631 (1969).

As we noted in Zobel, "[r]ight to travel cases have examined, in equal protection terms, state distinctions between newcomers and longer term residents." 457 U.S. at 457 U. S. 60, n. 6. This case involves a distinction between residents based on when they first established residence in the State. Following Zobel, we subject this case to equal protection analysis.

[Footnote 7]

The State of New Mexico, as amicus curiae, observes that the statute's purpose

"is to reward persons who served in periods of armed conflict as residents of New Mexico or who established residency in New Mexico shortly thereafter."

Brief for State of New Mexico as Amicus Curiae 5.

[Footnote 8]

Although neither appellee nor the State of New Mexico presses the point, the statute could conceivably influence certain veterans, having already moved to New Mexico, to remain there so as to secure the tax benefit. Similarly, the statute could plausibly encourage certain veterans, who had once resided in New Mexico prior to May 8, 1976, to return to the State. This selective incentive, however, would encounter the same constitutional barrier faced by the statute's distinction between past and newly arrived residents. See infra.

[Footnote 9]

A state objective to inhibit migration into the State would encounter "insurmountable constitutional difficulties." Zobel, supra, at 457 U. S. 62, n. 9. See Shapiro v. Thompson, supra, at 394 U. S. 629.

[Footnote 10]

For a compilation of the variety of state veterans' preference statutes, see House Committee on Veterans' Affairs, State Veterans' Laws, 98th Cong., 2d Sess., 1306 (Comm. Print No. 47, 1984).

[Footnote 11]

Veterans' benefit statutes, which condition eligibility on state residence at the time of induction into the military, have survived challenges under the Equal Protection Clause before Zobel was decided. See, e.g., Langston v. Levitt, 425 F.Supp. 642 (SDNY 1977); August v. Bronstein, 369 F.Supp.190 (SDNY), summarily aff'd, 417 U.S. 901 (1974); Leech v. Veterans' Bonus Division Appeals, 179 Conn.311, 426 A.2d 289 (1979).

The Court's summary affirmance in August v. Bronstein may not be read as an adoption of the reasoning of the judgment under review. Zobel v. Williams, 457 U.S. at 457 U. S. 64, n. 13; Fusari v. Steinberg,419 U. S. 379, 419 U. S. 391 (1975) (concurring opinion). Indeed, the Second Circuit recently has ruled that such a statute could not pass muster under the Equal Protection Clause in light of the Court's holding in Zobel.Soto-Lopez v. New York City Civil Service Comm'n, 755 F.2d 266 (1985), appeal docketed, No. 841803. Given the circumstances presented in this case, we need not consider here the constitutionality of these statutes.

[Footnote 12]

Compare the New Mexico open-ended prior-residence requirement with the specific criteria of Ill.Rev.Stat. Ch. 126 1/2,

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