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December 9, 1997

TERRY L. WARRICK, et al., Plaintiffs, -vs- KAREN F. SNIDER, Secretary of the PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE, et al., Defendants.

The opinion of the court was delivered by: AMBROSE


 This lawsuit challenges the constitutionality of a durational residency requirement for the receipt of General Assistance ("GA"). Section 6 of Pennsylvania's "Act 49," 62 P.S. § 432.4(a) (Supp. 1995), effective September 1, 1994, imposes a sixty day residency requirement on individuals seeking cash welfare benefits under the GA program. *fn1" Plaintiff Terry Warrick, and the class of indigent persons which she represents, were denied GA benefits solely on the basis that she, and they, had not resided in Pennsylvania for sixty days prior to applying for the benefits. Warrick asserts that the durational residency requirement violates both her fundamental right to travel, and her right to equal protection under the Fourteenth Amendment. Jurisdiction is predicated upon 28 U.S.C. § 1331 and § 1343.

 The Amended Complaint contains a demand for preliminary injunctive relief. By Opinion and Order dated June 30, 1995, I denied Warrick's request for preliminary injunctive relief, on the basis that she had not established a likelihood of success on the merits. Specifically, I determined that the sixty day durational residency requirement did not amount to a penalty on an individual's right to travel. Applying the rational basis test to the statute, I concluded that Pennsylvania's goal of encouraging employment and self-reliance was legitimate, and that the residence requirement was rationally related to that goal. See Docket No. 24.

 At the request of the parties, this case was subsequently marked "closed." See Docket No. 45. In January of 1997, the parties requested that the case be reopened, and, several months later, they filed dispositive motions. Currently pending is Plaintiffs' Revised Motion for Summary Judgment (Docket No. 57). *fn2" Warrick contends, essentially, that the durational residency requirement is unconstitutional, failing both a strict scrutiny and/or a rational basis analysis.

 The Commonwealth, relying almost exclusively upon my earlier denial of injunctive relief, disputes Warrick's contentions. I take a moment, however, to remind the Commonwealth that findings of fact and conclusions of law rendered in conjunction with a preliminary hearing, are not binding at this procedural posture. As noted by the United States Court of Appeals for the Seventh Circuit, when considering the impact of the legal conclusions reached in a preliminary hearing upon a subsequent motion for summary judgment:

the court's previous holding, being a decision on a motion for preliminary injunction, was itself only preliminary and subject to revision at any time. ... In fact, we have advised district courts to be cautious in adopting conclusions of law made in ruling on a preliminary injunction because the posture of the case at that time inevitably entails incomplete evidentiary materials and hurried consideration of the issues. ... Caution is also necessary because a motion for summary judgment raises a different decisional question for the judge than does a motion for preliminary injunction.
Consideration of the former requires the judge to inquire whether there is any issue of material fact when the facts and inferences therefrom are viewed most favorably to the non-movant; the latter, whether there is a reasonable likelihood the moving party will prevail on the merits. ... Thus, when the LDF moved for summary judgment, ... the district judge ... was not only free, but more properly put, obliged, to reconsider each of her decisions on the motion for preliminary injunction.

 Lac Du Flambeau Indians v. Stop Treaty Abuse - Wis., 991 F.2d 1249, 1258 (7th Cir. 1993); see also CFTC v. American Metals Exchange Corp., 991 F.2d 71, 80 (3d Cir. 1993); and Country Floors v. Partnership of Gepner and Ford, 930 F.2d 1056, 1062 (3d Cir. 1991).

 Having reconsidered, as obliged, my earlier findings, on the basis of a more complete factual record, I conclude that the sixty day durational residency requirement is, in fact, unconstitutional, failing both a strict scrutiny and rational basis analysis. Accordingly, Plaintiffs' Motion for summary Judgment is granted.


 Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 In considering a motion for summary judgment, the court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987), cert. denied, 483 U.S. 1052, 97 L. Ed. 2d 815, 108 S. Ct. 26 (1987). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the nonmoving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's burden of proof at trial Celotex, 477 U.S. at 322. Once the moving party satisfies this burden, the burden shifts to the nonmoving party, who must go beyond its pleadings and designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.


 While addressing the constitutionality of a statute is always difficult, the task before me is made immeasurably easier by virtue of Judge Newcomer's recent decision in Maldonado v. Houston, No. 97-4155 (E.D. Pa. 1997). In Maldonado, plaintiffs challenged "the constitutionality of the 'multi-tier' durational residency requirement contained in Section 9(5)(ii) of Act 35, codified at 62 P.S. § 432(5)(ii)." Maldonado, p. 3. Section 9(5)(ii) provides that:

cash assistance for applicants and recipients of aid to families with dependent children who have resided in this Commonwealth for less than twelve months shall not exceed the lesser of the maximum assistance payment that would have been received from the applicant's or recipient's state of prior residence or the maximum assistance payment available to the applicant or recipient in this Commonwealth.

 62 P.S. § 432(5)(ii). The Maldonados, who applied for cash assistance after moving from Puerto Rico, received only $ 304 per month by virtue of § 9(5)(ii), rather than the $ 836 per month that similarly situated families who have lived in Pennsylvania for the past 12 months received. As a consequence, the Maldonados sought declaratory and injunctive relief, asserting that the multi-tier durational residency requirement violated, in part, the right to travel and the right to equal protection.

 Faced with a request for preliminary injunctive relief, Judge Newcomer engaged in an exhaustive analysis of Supreme Court cases involving durational residency requirements. In particular, Judge Newcomer dissected the landmark decision announced in Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969), as well as modifications to that decision. In conducting this analysis, Judge Newcomer noted that the Supreme Court has subtly shifted away from the Shapiro analysis in recent years. Maldonado, p. 33-39.

 Given Judge Newcomer's thorough and scholarly analysis, I feel no need to independently trace the development of the case law. Suffice it to say that I agree with Judge Newcomer's conclusion that "whatever the current state of the Supreme Court's right to migrate jurisprudence, the Court must apply the Shapiro analysis to the case at bar because it is still binding precedent on this Court due to the fact that it has never been overruled and its facts are similar to this case." Maldonado, p. 39.

 "Under Shapiro and its progeny," Judge Newcomer explains, "a state law implicates the fundamental right to travel and therefore triggers strict scrutiny: (1) when impeding interstate travel is its primary objective; (2) when it actually deters such travel; or (3) when it uses any classification which serves to penalize the right to travel." Maldonado, p. 39, quoting Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 903, 90 L. Ed. 2d 899, 106 S. Ct. 2317 (1986) (internal quotation marks and brackets omitted). If these three factors are not at play, the statute need only be rationally related to a legitimate government purpose to survive a constitutional challenge.

 Warrick urges that the durational residency requirement fails both the strict scrutiny and rational basis tests. I will address each of Warrick's arguments seriatim.


 Warrick contends that § 432.4(a) was designed to impede travel, actually impedes travel, and creates a classification which penalizes the right to travel, and thus is subject to a strict scrutiny analysis. The sixty day durational residency requirement, Warrick concludes, fails to survive application of a strict scrutiny analysis.

 (A). Purpose of impeding travel3

 As noted by Judge Newcomer, "the Supreme Court has repeatedly stated that a law enacted for the purpose of inhibiting migration into [a] state is virtually unconstitutional." Maldonado, p. 42, citing, Hooper v. Bernalillo County Assessor, 472 U.S. 612, 620 n. 9, 86 L. Ed. 2d 487, 105 S. Ct. 2862 (1985), Zobel v. Williams, 457 U.S. 55, 62 n.9, 72 L. Ed. 2d 672, 102 S. Ct. 2309 (1982); Memorial Hospital v. Maricopa County, 415 U.S. 250, 263-64, 39 L. Ed. 2d 306, 94 S. Ct. 1076 (1974); and Shapiro, 394 U.S. at 629. "If a law has 'no other purpose than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it [is] patently unconstitutional." Shapiro, 394 U.S. at 631 (citations omitted). Thus, only if the "primary objective" of § 432.4(a) is the impermissible purpose of deterrence, should strict scrutiny be applied. See Maldonado, p. 43, citing, Soto-Lopez, 476 U.S. at 903.

 Warrick, citing to the statute's legislative history, urges that the primary objective of the statute is to deter migration. Statements made by key senators certainly buttress Warrick's allegations. For example, Majority Whip Senator D. Michael Fisher, chief sponsor and floor spokesperson for Act 49, commented that:

For many, many years, people have been coming to all of us and they have told us stories, whether it be as the gentlemen [sic] from Butler, Senator Shaffer, earlier today told us about Ohioans signing up for welfare in New Castle, or whether it be someone getting off a bus in Philadelphia or Harrisburg and signing up for welfare. ... What we are trying to do in this legislation ...

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