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Opinion 98012

DATE: February 13, 1998

SUBJECT: Nebraska Veterans Homes; Admission Criteria

REQUESTED BY: Keith Fickenscher, Director Nebraska Department of Veterans' Affairs

WRITTEN BY: Don Stenberg, Attorney General

Lauren L. Hill, Assistant Attorney General




You have requested an opinion from this office as to

whether the statutory criteria for admission to the Nebraska

Veterans' Home System may be expanded to include a certain class of

peacetime veterans without opening admission to all peacetime

veterans. Specifically, the legislative proposal being considered

would expand eligibility for home admission to "permanently and

totally disabled, non-ambulatory, wheelchair-bound veterans who are

100% service-connected, [and] who are not now eligible for [home]

admission because their service dates are not `wartime'." We have

not been provided with a specific draft of any legislation nor

asked to address any particular concern with the legislative

proposal; therefore our review of your inquiry will necessarily

result in a general response. See Op. Att'y Gen. No. 94-012

(March 10, 1994); Op. Att'y Gen. No. 85-157 (December 20, 1985).




Current Law




Under current law, admission to one of Nebraska's

veterans' homes is extended to any veteran who served in the armed

forces of the United States during a period of war as defined in

Neb. Rev. Stat. § 80-401.01, if, at the time of filing a home

application,




(a) the applicant has been a bona fide

resident of the State of Nebraska for at least

two years, (b) the applicant has become

disabled due to service, old age, or otherwise

to an extent that it would prevent such

applicant from earning a livelihood, and (c)

the applicant's income from all sources is

such that the applicant would be dependent

wholly or partially upon public charities for

support, or the type of care needed is

available only at a state institution ....




Neb. Rev. Stat. § 80-316 (Supp. 1997). Therefore, assuming other

statutory criteria are satisfied, those veterans suffering from

either "service-connected" or "non-service-connected"

disabilities may be admitted to one of the state veterans' homes so

long as they served on active military duty -- whether in combat or

not -- during the Spanish-American War; World War I; World War II;

the Korean War; the Vietnam War; in either Lebanon, Grenada, or

Panama; or at any time since August 2, 1990 (the Persian Gulf War).

Neb. Rev. Stat. § 80-401.01 (1996).




Discussion




In reviewing your question, we note that, because the

Nebraska Constitution "is not a grant, but, rather, a restriction

on legislative power, . . . the Legislature is free to act on any

subject not inhibited by the Constitution." State ex rel. Stenberg

v. Douglas Racing Corp., 246 Neb. 901, 905, 524 N.W.2d 61, 64

(1994). In so acting, however, the court has established that

"[t]he people of the state, by adopting a Constitution, have put it

beyond the power of the [L]egislature to pass laws in violation

thereof." State ex rel. Randall v. Hall, 125 Neb. 236, 243, 249

N.W.756, 759 (1933); see also State ex rel. Caldwell v. Peterson,

153 Neb. 402, 45 N.W.2d 122 (1950).




As previously noted, only those veterans who have served

in the armed forces during the periods of war set forth in § 80-

401.01 are eligible for admission to Nebraska's veterans homes.

The legislative proposal which you have submitted for review would

expand veterans home admission to a narrow class of "peacetime

veterans." Specifically, the proposal would make eligible for

admission only those peacetime veterans who are "permanently and

totally disabled, non-ambulatory, wheelchair-bound ... [and] who

are 100% service-connected." We find that any challenges made to

the proposal would most likely arise under the equal protection

clauses of both the Nebraska and U.S. Constitutions.




State and Federal Equal Protection Clauses.




Article III, Section 18 of the Nebraska Constitution

provides that "[t]he Legislature shall not pass local or special

laws in any of the following cases, that is to say: ... Granting

to any corporation, association, or individual any special or

exclusive privileges, immunity, or franchise whatever. ... In all

other cases where a general law can be made applicable, no special

law shall be enacted."




In construing Article III, § 18, the Nebraska Supreme

Court has determined that "[b]y definition, a legislative act is

general, and not special, if it operates alike on all persons of a

class or on persons who are brought within the relations and

circumstances provided for...." Haman v. Marsh 237 Neb. 699, 709,

467 N.W.2d 836, 844-45 (1991) (citations omitted); State ex rel.

Rogers v. Swanson, 192 Neb. 125, 219 N.W.2d 726 (1974). Thus, a

legislative act can violated Article III, § 18 as special

legislation in one of two ways: (1) by creating a totally

arbitrary and unreasonable method of classification, or (2) by

creating a permanently closed class. Swanson v. State, 249 Neb.

466, 544 N.W.2d 333 (1996); City of Scottsbluff v. Tiemann, 185

Neb. 256, 175 N.W.2d 74 (1970).




Similar to the state equal protection clause is the

provision contained in the fourteenth amendment to the U.S.

Constitution. In pertinent part, the fourteenth amendment

prohibits the State from denying "to any person within its

jurisdiction the equal protection of the laws." When a statute is

challenged under this clause, "[t]he general rule is that

legislation is presumed to be valid and will be sustained if the

classification drawn by the statute is rationally related to a

legitimate state interest." Cleburne v. Cleburne Living Center,

Inc., 473 U.S. 432, 440 (1985); Pick v. Nelson, 247 Neb. 487, 528

N.W.2d 309 (1995); Robotham v. State, 241 Neb. 379, 488 N.W.2d 533

(1992).




There are two narrow exceptions to this rule.

Statutes which classify by race, alienage, or

national origin `will be sustained only if

they are suitably tailored to serve a

compelling state interest.' Likewise,

statutes which classify by gender or

illegitimacy must be `substantially related'

to, respectively, either a `sufficiently

important governmental interest' or `a

legitimate state interest.'




Pick, 247 Neb. at 498, 528 N.W.2d at (citations omitted). The

state supreme court has expressly determined that "[t]he Nebraska

Constitution has identical requirements." Id.; Robotham, 241 Neb.

at 385, 488 N.W.2d at 539. Thus, in order for the proposed home

admission expansion to be sustained, the State would have to be

able to demonstrate a rational basis for the different

classification of peacetime veterans. Id.




Application of "Rational Basis Scrutiny" To The Proposal.




Nebraska statutes governing veterans' home admission

already create a distinction amongst the general class of veterans:

veterans who served on active duty -- whether in combat or not --

during specified periods of war are eligible for home admission

while veterans who served on active duty during peacetime are

ineligible for home admission. The legislative proposal now being

reviewed would create a second classification amongst peacetime

veterans. Peacetime veterans who are permanently and totally

disabled due to a 100% service-connected disability and who are

non-ambulatory and wheelchair-bound would become eligible for

veterans' home admission.




In order to be valid, the State would be required to

demonstrate that the proposed classification of peacetime veterans

is "based upon some reason of public policy -- some substantial

difference of situation or circumstances -- that would naturally

suggest the justice or expediency of diverse [grouping of the

peacetime veterans]." State v. Popco, Inc., 247 Neb. 440, 528

N.W.2d at (1995). The differentiation among the class of

peacetime veterans would be proper "if the special class [of

severely disabled peacetime veterans] has some reasonable

distinction from other [peacetime veterans], which distinction

bears some reasonable relation to the legitimate objectives and

purposes of [expanding veterans' home eligibility criteria]." Id.




Generally, the determination of whether a particular

legislative classification has a legitimate public purpose is a

decision left to the Legislature. See State v. Gaylen, 221 Neb.

497, 378 N.W.2d 182 (1985). Furthermore, states are usually

afforded wide latitude in providing for different treatment of

different classes of people. Stoehr v. Whipple, 405 F.Supp. 1249

(D.Neb. 1976). In the area of social welfare legislation, a state

statute will not normally violate the equal protection clause

merely because classifications made under that statute are

imperfect. Dandridge v. Williams, 397 U.S. 471, 485 (1970); State

v. Garber, 249 Neb. 648, 545 N.W.2d 75 (1996); Distinctive Printing

& Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989).




Given these standards, the ability of the pending

legislative proposal to sustain a legal challenge would be

dependent upon the rationale for implementing a statutory

differentiation of peacetime veterans. The U.S. Supreme Court has

held that "a common characteristic shared by beneficiaries and

nonbeneficiaries alike, is not sufficient to invalidate a statute

when other characteristics peculiar to only one group rationally

explain the statute's different treatment of the two groups."

Johnson v. Robinson, 415 U.S. 361, 378 (1974).




Pursuant to the definition of wartime veterans provided

for in Neb. Rev. Stat. § 80-401.01, only those veterans who served

on active duty in the military for a period of approximately 36 of

the past 100 years are now eligible for admission to the Nebraska

Veterans' Home System. Veterans whose service dates cover the

remaining 64 years of that time period are not eligible for home

admission. Expansion of current eligibility restrictions to any

group of veterans will likely involve significant costs to the

State. The practical cost issue has, under certain circumstances,

been validated as a rational basis for differentiating amongst

classes of veterans. See Besinga v. U.S., 14 F.3d 1356 (9th Cir.),

cert. denied, 513 U.S. 864 (1994) (upholding Congressional statute

providing for certain veterans benefits for Philippine Commonwealth

Army veterans but excluding from benefit status those veterans of

the Old Philippine Scouts).




Conclusion




The Legislature has authority to amend current statutory

criteria pertaining to veterans' home admission eligibility.

Nebraska already distinguishes between the class of "veterans" in

its admission requirements. Veterans who served during specified

periods of war are eligible for admission while those who served

outside of the specified dates are ineligible for home admission.

The validity of further differentiation amongst "peacetime"

veterans would be assessed under the "rational basis scrutiny"

test. Under that standard, Nebraska would have to demonstrate that

different treatment among that group of veterans is based upon a

legitimate public purpose and that the separate classification

bears reasonable relation to that purpose.




Sincerely,




DON STENBERG

Attorney General








Lauren L. Hill

Assistant Attorney General