DEL MONTE v. DEUKMEJIAN (1991)

Appellants appeal from the superior court's denial of their petition for peremptory writ of mandate/complaint for declaratory relief which challenged, inter alia, the constitutionality of various provisions of the Military and Veterans Code which condition eligibility for statutory benefits upon the veterans' California residency status at the time of entry into active military duty.

Bound by the doctrine of stare decisis and U.S. Supreme Court interpretations of the constitutionality of similar benefit programs in Zobel, Soto–Lopez and Hooper, we find California's plan of preferring established California resident veterans over otherwise bona fide resident veterans of California violative of the equal protection clause of the federal Constitution.

FACTS AND PROCEEDINGS BELOW

Under California law, veterans residing in the state may qualify for a number of state benefits for themselves and their family members.   The California Legislature has conditioned eligibility for most of those benefits on the veteran having been either a native of or a bona fide resident of the State of California at the time he or she entered active military service.   Benefits reserved exclusively for “Cal–Vets” include educational benefits for veterans (Mil. & Vet.Code, §§ 981.1, 981.2);  farm and home loan assistance (Mil. & Vet.Code, ch. 6, arts. 3, 3.1);  and, disaster indemnity for those qualified to participate in the farm and home loan program (Mil. & Vet.Code, ch. 6, art. 3.8.).

Section 980 of the Military & Veterans Code sets forth the definition of “veteran” to be applied in determining eligibility for all benefits provided for in Chapter 6 (“State Benefits for Veterans”).   That section provides:

“(a) As used in this chapter, ‘veteran’ means either of the following:

“(1) Any citizen of the United States who served in the active military, naval, or air service of the United States on or after April 6, 1917, and prior to November 12, 1918;  received an honorable discharge or was released from active duty under honorable conditions;  was at the time of entry into active duty, a native of or a bona fide resident of this state or, if a minor at that time, entered active duty while in this state;  and had lived in this state for six months immediately preceding entry into active duty.

“(2) Any person who served in the active military, naval or air service of the United States for a period of not less than 90 consecutive days or was discharged from the service due to a service-connected disability within that 90–day period;  received an honorable discharge or was released from active duty under honorable conditions;  was at the time of entry into active duty a native of or bona fide resident of this state or, if a minor at that time, entered active duty while in this state and had lived in this state for six months immediately preceding entry into active duty;  and performed any portion of that service during any of the following periods:

“(A) On or after December 7, 1941, and prior to January 1, 1947.

“(B) On or after June 27, 1950, and prior to February 1, 1955.

“(C) On or after August 5, 1964, and prior to May 8, 1975.

“(D) In time of peace in a campaign or expedition for service in which a medal has been authorized by the government of the United States.”  (Italics added.)

In a separate section entitled “Veterans' Dependents,” chapter 4, article 2 of the Military & Veterans Code provides for educational assistance to dependents of veterans in the form of payment of tuition and fees for high school, college and trade school students.  (Mil. & Vet.Code, § 890 et seq.)   Dependents of Cal–Vets are also entitled to monthly stipends of $50 for high school students and $100 for college and trade school students while satisfactorily and regularly enrolled in these institutions.  (Mil. & Vet.Code, § 894.)

This article contains its own distinct definition of “veteran” for purposes of establishing eligibility.   The veteran must have either been killed in action, died or become disabled as a result of war service;  or if categorized as a prisoner of war or missing in action, the veteran must have been a resident of California at the time of entry into military service.  (Mil. & Vet.Code, § 890(a).)

Although funds have been appropriated annually to implement this section, provisions written into the budget act over the years have not allowed any funds to be expended to provide educational financial assistance to any dependents of “non-California veterans as defined in section 980 of the Military and Veterans Code.”  (See, e.g., 1988–1989 Final Budget Summary, Item No. 1960, p. 129.)   The practical significance of this restriction is that eligibility for benefits has been limited to dependents of veterans who were California natives or residents at the time they entered military service.¹

Appellant Charles Del Monte is a veteran of the Korean War.   He entered into active military service in 1950 from the State of New York.   Charles Del Monte became disabled as a result of his military service.   In 1962 Charles and Joan Del Monte settled in California.

Their sons, appellants Nicholas and Andrew Del Monte, repeatedly applied for dependents' educational assistance.   Nicholas was enrolled at Humbolt State University and Andrew was a high school student.   There was no response to Nicholas' first three applications and the fourth was denied on the basis his father was not a Cal–Vet.   Inexplicably, Nicholas began receiving benefits retroactively in 1986.   In 1987, Andrew began receiving monthly stipends as well despite written notification from the Department of Veteran Affairs the Del Montes were ineligible for benefits due to the fact Charles Del Monte was not a Cal–Vet.

As a result of a subsequent audit of the department to eliminate ineligible recipients of educational assistance, monthly stipends to the Del Monte children were terminated without written explanation and without notification of any rights they may have had to appeal the decision.

Appellant Michael Gureckas entered military service from Connecticut in February 1966 to serve in the Vietnam War.   He was a member of the Air Force until April 1968 when he was honorably discharged with a 100 percent service-related disability.   Gureckas has resided in California since August 1967 when he was transferred here.

In 1971 Gureckas sought information concerning eligibility for veterans' home purchase assistance.   He was informed he was ineligible because he had entered military service from another state.

Appellants Clyde McCown, Karl Seuthe and John Rigney are all army veterans who are residents of the State of California and have paid taxes to the state during the years preceding the initiation of this action.

McCown is a World War II veteran who entered military service from Louisiana and served in the United States Navy from 1943 to 1946.   He has been a resident of California since 1946.

Karl Seuthe is a Korean War veteran who entered military service from New York.   In 1952 he was transferred to California where he completed his military service and established permanent residence.

John Rigney is a World War II veteran who entered the military service from Georgia.   He received an honorable discharge from the service in 1946 and in 1950 permanently moved to California.

On May 6, 1988, petitioners filed their petition for writ of mandate and complaint for declaratory relief.   Petitioners also moved for class certification requesting reimbursement of benefits withheld on behalf of class members.   Petitioners alleged the fixed point residency requirement for veterans' benefits violated their constitutional rights to equal protection of the laws and to migrate.   They further challenged the provision in the Annual Budget Act limiting educational benefits to dependents of veterans who were California natives or residents at the time of entering military service as violative of the single subject rule of the state constitution.   Finally, petitioners contended the lack of procedures for notification and appeal of Department of Veterans' Affairs' decisions to deny benefits for dependents of veterans violates due process.

An amended petition/complaint was filed to which respondents demurred.   Respondents also moved to strike certain portions of the complaint and filed their opposition to petitioners' motions for a peremptory writ and class certification.   Respondents' demurrer and motion to strike were denied and respondents answered the first amended petition/complaint.

On March 6, 1988, the superior court entered its judgment.   The court specifically found appellants had standing, as persons with a substantial interest in the outcome of the suit, to challenge the constitutionality of California's statutory benefit plan for veterans.   However, in view of its disposition, the trial court did not rule on appellants' motions for class certification.   The court denied the petition for peremptory writ of mandate, declaring item 1960 of the Annual Budget Act and section 980 of the Military and Veterans Code were not unconstitutional and that item 1960 did not violate the single subject rule of the California Constitution;  that respondents did not have a current policy and practice of summarily denying and terminating benefits and that respondents' current appeal procedures did not violate the due process clauses of the United States and California Constitutions;  and denying the injunctive relief requested.

DISCUSSION

I. PRECEDENTS OF THE U.S. SUPREME COURT ESTABLISH THE PRINCIPLE CONDITIONING STATE BENEFITS ON STATE RESIDENCY AS OF A FIXED TIME VIOLATES THE EQUAL PROTECTION CLAUSE.

 As the United States Supreme Court has made clear on several occasions, the Fourteenth Amendment to the United States' Constitution prohibits a state from limiting eligibility for benefits to individuals who were state residents as of a certain date unless there is sufficient justification for the limitation.

 In Zobel v. Williams (1982) 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672, Alaska residents challenged the constitutionality of a state dividend plan which distributed state income to citizens in varying amounts depending upon the length of residency in the state.   The Court determined the statute classified Alaskan residents into categories triggering an equal protection analysis.  “The dividend statute creates fixed, permanent distinctions between ․ perpetual classes of concededly bona fide residents, based on how long they have lived in the state․  When a state distributes benefits unequally, the distinctions it makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment.”  (Id. at pp. 59–60, 102 S.Ct. at pp. 2312–2313)

The state advanced three justifications for its system of classifying residents for receipt of benefits:  1) the creation of a financial incentive for individuals to move to Alaska and establish residency;  2) the encouragement of prudent management of Alaska's mineral surplus fund;  and, 3) recognition and reward of residents based upon the contributions they had made during their years of residency.  (Id. at p. 61, 102 S.Ct. at p. 2313.)

The Court found granting greater benefits to longer term residents in no way served the state's purported interests.   Increased migration and concern for management of the fund would be better served by granting benefits to all residents in equal amounts.   The third asserted state interest in rewarding residents for their past contributions to the state, was held to be an illegitimate purpose.  (Id. at p. 63, 102 S.Ct. at p. 2314.)   The Court warned such a system of rewards could open the door to apportionment of all state services and benefits based upon years of residency—a “clearly impermissible” result.  (Id. at p. 64, 102 S.Ct. at p. 2315.)

Chief Justice Burger, writing for seven justices with Justice O'Connor concurring in the judgment, invalidated Alaska's discriminatory benefit plan finding the state had shown no valid interests which were served by the distinction it made between citizens who established residence before the fixed date and those who had become residents since then.  (Id. at p. 66, 102 S.Ct. at p. 2316.)

Three years later the Court in Hooper v. Bernalillo County Assessor (1985) 472 U.S. 612, 105 S.Ct. 2862, 86 L.Ed.2d 487, decided the constitutionality of a property tax exemption for veterans who were residents of New Mexico before “entering active military service from New Mexico.”   This statutory distinction based on residency at a fixed point is virtually identical to the statute involved in this case which determines a veteran's residency status as of the fixed date he or she entered military service.

New Mexico allowed a $2,000 property tax exemption for veterans who had resided in the state before May 8, 1975, (later extended to May 8, 1976).   A Vietnam veteran who established residency in New Mexico in 1981, and who was denied the exemption, challenged the residency requirement on both equal protection and right to travel grounds.

The Court noted the tax exemption statute created two classes of veterans:  1) those who had lived in the state prior to May 8, 1976, and qualified for the exemption and 2) those who moved to the state after that date and were not entitled to the exemption.   The Court struck down the fixed point residency requirement as violative of equal protection.   Justice Burger, writing for five of the eight participating justices stated:  “When a state distributes benefits unequally, the distinctions it makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment.   Generally, a law will survive that scrutiny if the distinction rationally furthers a legitimate state purpose․  As in Zobel, if the statutory scheme cannot pass even the minimum rationality test, our inquiry ends.”   (Id. 472 U.S. at p. 618, 105 S.Ct. at p. 2866.)

The state offered two of the same discredited justifications advanced by Alaska in Zobel:  1) the encouragement of citizens to settle in New Mexico and 2) the expression of appreciation to “its own citizens for honorable military service” by assisting those veterans who were “dependent on the state during a time of upheaval in their lives.”  (Id. 472 U.S. at pp. 618–619, 105 S.Ct. at pp. 2866–2867.)   Based on Zobel, the Court ruled a fixed residency requirement cannot rationally further the goal of encouraging migration to the state.   The Court noted the provision's likely effect was to in fact discourage veterans from settling in the state because new arrivals were ineligible for the veteran's property tax exemption.

With respect to the second state interest, the Hooper court recognized as legitimate the goal of rewarding veterans for their wartime service to the nation.   The Court also noted:  “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 made 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, the New Mexico statute's distinction 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.   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.”  (Id. at pp. 621–622, 105 S.Ct. at pp. 2867–2868.)

The Court distinguished New Mexico's statute from provisions in other states' laws providing for a one-time cash bonus paid directly to veterans to compensate for the disruption in their lives and to assist in the transition to civilian life.²  While singling these statutes out, the Court questioned whether any state could constitutionally condition even such limited direct assistance to the veteran based on residency as of a fixed date but reserved that question for another day.

Stripped of its asserted justifications, the statute in Hooper suffered from the same constitutional flaw as the statute in Zobel:  it rewarded its citizens on the basis of past contributions—an illegitimate state purpose.   “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.”  (Id. 472 U.S. at p. 623, 105 S.Ct. at p. 2868.)

The facts and circumstances in Hooper are virtually indistinguishable from the case at bar.   The California statute provides certain benefits only to those veterans who were “at the time of entry into active duty, a native of or a bona fide resident of this state․”  (Mil. & Vet.Code, § 980(a);  see also § 890(a)(4).)   Thus, the statute classifies veterans into two groups:  1) veterans who were either California natives or California residents when they entered active military service and thus are entitled to the various educational, disaster relief and loan benefits and 2) veterans who became residents of the state after entering active military service who are not entitled to these benefits.

Because the statute classifies its citizens based on their status on the date they entered active military service, based on Zobel and Hooper, the California statute must be subjected to equal protection analysis to determine if the legislation is rationally related to the state's goals.³

The justifications offered in respondent's brief in support of the classifications are 1) “to encourage and promote patriotism and service to country;  2) to reward such service;  and, 3) to compensate and provide assistance to those who were and are its citizens at the time they are called upon to make the sacrifice of military service.”   This later justification is further refined to mean “to compensate those whose civilian careers and lives are disrupted and interrupted by military service while they are working and living in the state, and who choose to return to the state after their military service and begin the difficult task of resuming those interrupted careers and lives, perhaps ill-prepared to begin anew in a society and economy which may have changed dramatically during their absence and which conceivably could have left them far behind.”  (Italics in original.)

As noted in Hooper, the first two justifications are plainly legitimate and have been repeatedly held to justify preferential treatment of veterans over the general population.  (Regan v. Taxation with Representation (1983) 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129;  Personnel Administrator of Mass. v. Feeney (1979) 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870.)   But as occurred in Hooper, this statute does not merely distinguish between veterans and non-veterans, it distinguishes between veterans who happened to enter the military service from California and those who did not.   As the Supreme Court observed in Hooper, promoting patriotism and rewarding past military service would be best accomplished by granting benefits to all veterans equally.   The statute confers these benefits only on established residents for the asserted purpose of rewarding past military contributions.   As already pointed out, this rationale was held illegitimate in both Zobel and Hooper.

The third justification—compensation to those veterans whose lives were disrupted while living in the state to ease the difficult transition period back to civilian life—might have merit if the statute directly furthered this goal.   However, the statute suffers from the same deficiency found in the statute in Hooper.   All veterans throughout the United States have their lives disrupted by military service.   It is difficult to understand how California residents could have suffered any more than veterans from any other state.   Leaving civilian life, school or jobs is a disruption no matter where it occurs.   Moreover, California residents have equal reason to be grateful to those veterans born in Alabama or Wyoming who had their lives disrupted, as they have for being grateful to Californians who suffered to protect our national interests.

Nor do the benefits conferred in the legislation necessarily help ease the veteran's transition to civilian life.   There is no provision for an immediate cash pay-out to the veteran upon completion of a tour of duty or separation from the military.   The provisions for educational benefits apply not only to the veteran, but to any children he or she may presently have or have in the future.   The benefits of a low interest rate on the acquisition of a house or farm is not limited to a short period after termination of military service but is available for 30 years after honorable discharge from the service.   Moreover, the benefits are reaped over the life of the mortgage, usually decades.

None of these benefits directly bear on the transition to civilian life immediately after a war's end.   The various educational and loan benefits are realized over the life of the veteran and into the next generation.   As noted in Hooper, this preferential treatment will “benefit this limited group of resident veterans long after the wartime disruption dissipate[s] [and] is a continuing bounty for one group of residents rather than simply an attempt to ease the veteran's return to civilian life.”  (472 U.S. at p. 621, 105 S.Ct. at p. 2867.)

Furthermore, the legislation does not require a direct connection between the veteran's prior residence and military service.   The benefits are conferred upon any “native of or bona fide resident” of California who entered military service from California.   Thus, any person born in California would presumably immediately qualify for the benefits whether or not he or she actually resided in the state before, during or after the war if he or she entered military service from California.

Under closer inspection, the legislation merely serves to give preferential treatment to its own citizens as defined by when they settled in the state or where they were born—the very rationale found constitutionally lacking in Hooper and Zobel.⁴

There is no valid rationale to grant this group preferential treatment over other concededly bona fide residents of California who chose to settle in this state after serving their country in a period of war.   Their lives were equally disrupted, they served the same country, they have the same needs and difficulty in reacclimating to civilian life.   For example, Naval personnel based in Long Beach or Oakland should not be penalized for the decision to remain in a state in which they have developed attachments and commitments while serving in the military.

In sum, California's veteran benefit program is not rationally related to the state's asserted goal of compensation for disruption of a veteran's life by a call to military duty while living in the state.   We further find it violative of the equal protection clause of the Fourteenth Amendment on the authority of Zobel and Hooper alone.   The statutes involved in this case and the rationales asserted in support of it are so closely analogous to those involved in the Supreme Court decisions in Zobel and Hooper as to compel the result in this case.

The U.S. Supreme Court's subsequent decision in Attorney General of N.Y. v. Soto–Lopez (1986) 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899, lends further support to this conclusion.

II. THE SOTO–LOPEZ DECISION HELD UNCONSTITUTIONAL A STATE BENEFIT PLAN THAT DISCRIMINATED AGAINST NON–ESTABLISHED RESIDENT VETERANS.

In Soto–Lopez the Supreme Court confronted a New York statute similar to California's which gave preferential treatment in civil service employment to veterans who were New York residents at the time they entered military service.  Soto–Lopez was a plurality decision.   Four justices held the provision impaired the right to travel and thus subjected it to close scrutiny, concluding the classification violated equal protection.   Two justices found it unnecessary to apply the heightened scrutiny test because they held the provision was not rationally related to the asserted state's goals and was unconstitutional on that basis.

In Marks v. United States (1977) 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260, the Court explained the proper analysis for interpreting and applying plurality decisions of that court.  “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds․' ”  (Citing Gregg v. Georgia (1976) 428 U.S. 153, 169, fn. 15, 96 S.Ct. 2909, 2923, fn. 15, 49 L.Ed.2d 859.)

The directive of Marks is obvious—the decision in Soto–Lopez cannot be dismissed as without precedential value as respondents contend.   Six justices in that decision clearly held the New York law giving preferential treatment to veterans who were residents when they entered active military service was unconstitutional.

Justice Brennan, writing for four members of the Court in Soto–Lopez, found the state's asserted interests of promoting enlistment, helping returning veterans to establish themselves, inducing veterans to return to New York, and employing a “uniquely valuable class of public servants,” were promoted fully by granting bonus points to all otherwise qualified veterans.  (Id. 476 U.S. at p. 909, 106 S.Ct. at p. 2324.)   Justices Burger and White expressly found the bonus program not even rationally related to the state's asserted goals.   All six Justices found a lack of connection between the benefits conferred and the transition period to civilian life.   Justice Brennan, relying on the rational basis analysis in Hooper stated in the plurality opinion:  “the fact that eligibility for bonus points is not limited to the period immediately following a veteran's return from war casts doubt on New York's asserted purpose of easing the transition from wartime military conditions to civilian life, for, presumably a veteran of the Korean War could take a civil service examination and receive the bonus points tomorrow, 30 years after his homecoming.   Cf. Hooper, 472 U.S. at 621 [105 S.Ct. at 2867]․  The State's failure to limit the credit to enlistees recently returned to New York from war strongly suggests that the State's principal interest is simply in rewarding its residents for service to their country.”   (Id. 476 U.S. at p. 910, 106 S.Ct. at p. 2324.)

As pointed out in section I, supra, California's benefit program for veterans suffers from the same constitutional infirmity.   It purports to ease the veteran's transition from military to civilian life yet is not limited in time to the period immediately following completion of military service.   The benefits are on-going throughout the life of the veteran and his or her spouse and dependents.   Veterans who entered military service from California may take advantage of some benefits today even if they served in World War II.   But veterans like appellants who have been residents of California for decades, but who did not enter the service from California, are penalized strictly on that basis.

Because the legislation does not further any of the state's asserted goals, it must be seen for what it is—an attempt to treat preferentially its own citizens by preferring only those whose lives were disrupted by a call to military service “while” living in California—a justification consistently found constitutionally inadequate by a majority of the U.S. Supreme Court on even a rational basis standard.

For these reasons we conclude California's veteran benefit preference for only established residents does not rationally relate to the state's asserted purposes and thus violates the equal protection clause of the United States Constitution.⁵

III. THE RECORD IS VOID OF ANY EVIDENCE THE DEPARTMENT OF VETERANS' AFFAIRS HAS PROCEDURES IN PLACE THAT SATISFY DUE PROCESS REQUIREMENTS FOR THE DENIAL OR CANCELLATION OF BENEFITS FOR DEPENDENTS OF VETERANS AND FOR APPEALS OF THOSE DECISIONS.

 Individuals receiving state statutory benefits enjoy protected property interests within the meaning of the due process clause.  (Goldberg v. Kelly (1970) 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287.)  “[I]n every case involving a deprivation of property within the purview of the Due Process Clause, the Constitution requires some form of notice and a hearing.”   (Beaudreau v. Superior Court (1975) 14 Cal.3d 448, 458, 121 Cal.Rptr. 585, 535 P.2d 713, citing North Georgia Finishing, Inc. v. Di–Chem, Inc. (1975) 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751;  Goss v. Lopez (1975) 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725.)

The factors to weigh to determine the extent and nature of process due under the federal Constitution are:  1) the nature of the private interest involved;  2) the risk of an erroneous deprivation of that interest through the procedures used and the value of any additional procedural safeguards;  and 3) the government interest in maximizing administrative efficiency.  (Mathews v. Eldridge (1976) 424 U.S. 319, 334–335, 96 S.Ct. 893, 902–903, 47 L.Ed.2d 18;  accord, McCullough v. Terzian (1970) 2 Cal.3d 647, 87 Cal.Rptr. 195, 470 P.2d 4.)

In this case educational benefits for Nicholas and Andrew Del Monte were initially denied and later withdrawn without opportunity to challenge those decisions.   Except for the unconstitutional fixed point residency requirement for their veteran father, Nicholas and Andrew Del Monte otherwise met every other criteria for eligibility under the statutes.   Their father was a disabled veteran of the Korean War and they were regularly and satisfactorily enrolled in school.

Loss of educational benefits may not be as significant as the loss of welfare benefits (Goldberg ), but they are extremely valuable to those dependents for whom public assistance may constitute the only opportunity to better themselves and ultimately secure meaningful employment.   Because eligibility for dependents' education assistance benefits is contingent upon a low family income, most recipients will fall into this category.

On August 25, 1988, the trial court ordered respondents to file supplemental evidence “of all public information supplied by the Department of Veterans Affairs to members of the public requesting information with respect to veterans' rights under the law.”   The purpose of this order was to determine if the denial of due process rights to the Del Montes was merely an aberrational oversight by the department.   Respondents submitted the declaration of Howell Jackson, chief attorney for the Department of Veterans' Affairs.   This declaration and the exhibits attached to it demonstrated sufficient procedural safeguards were in place to protect against erroneous denials of benefits to veterans themselves.

Decisions denying benefits were relayed to the veteran by letter in which the veteran was informed of his appeal rights.   Brochures distributed to veterans explaining their benefit rights contained explanations on how to file a complaint and appeal an adverse decision.   Thus it appears the department was in literal compliance with section 86 of the Military & Veterans Code as regards due process for veterans themselves.   That section provides that “Any person deeming himself a veteran and who applies for benefits may appeal any decision made by a division of the department to the California Veterans Board.   Upon receipt of such an appeal, the board shall grant a hearing, if requested, and shall render its decisions in writing to the appellant․”  (Italics added.)

However, no evidence was offered of similar safeguards for applicants of benefits by dependents of veterans despite ample opportunity to do so.   Indeed, the brochure distributed by the Department of Veteran Affairs explaining educational assistance benefits for dependents offers no information on how to challenge an adverse decision.

If the Del Montes' experience is typical, it appears the department does not include as a practice or procedure written notification of the denial or cancellation of benefits for veterans' dependents.   Although the Del Montes specifically requested a written explanation for the cancellation of benefits they were told none would be forthcoming.   They were also not informed of any available process by which they could appeal the adverse decision.

It would make no sense for the notice and hearing procedures of Military & Veterans Code section 86 to apply exclusively to appeals by the veteran himself or herself when so many of the statutory benefits apply to spouses or dependents of veterans who are either dead or missing in action and unavailable to personally assert a claim for the wrongful denial of benefits.   Thus, reserving due process for veterans only could not have been the intent of the Legislature in enacting Military & Veterans Code section 86.   That section should be construed to require notice and an opportunity to be heard by any otherwise eligible recipient of benefits granted to veterans which would obviously include dependents of veterans eligible for educational financial assistance.

In sum, procedural safeguards presently afforded to veterans should also be extended to other qualified recipients or applicants for statutory benefits who have been denied benefits provided under the Military & Veterans Code.

DISPOSITION

The judgment is reversed and the cause remanded to the superior court with instructions to issue the peremptory writ of mandate and for proceedings consistent with this opinion.   Appellants to recover their costs on appeal.

FOOTNOTES

1.   Section 32320 of the Education Code provides for tuition and fee waivers at state colleges and universities for dependents of all veterans, regardless of their residency status, where the veteran has died or become disabled as a result of military service, provided certain financial requirements are met.Dependents of these veterans are not eligible, however, for tuition and fee waivers at private colleges, universities or trade schools nor are they eligible for monthly stipends—benefits otherwise provided to Cal–Vet dependents.

2.   That opinion distinguished those state statutes that provided for one-time cash payments upon separation from the military from the open-ended benefit plan involved in Hooper.  (See, e.g., Ill.Rev.Stat. (1983) ch. 126 1/2, ¶ 57.52;  Ky.Rev.Stat. (1980) § 40.005;  and 51 Pa.Cons.Stat.Ann. (1976 and Supp.1984–1985) §§ 20122, 20123.

3.   Respondents consider it significant the provision has not been subject to constitutional attack on this basis during the approximately 50 years of its existence.   But mere “longevity” does not confer constitutionality.  “[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack․”  (Williams v. Illinois (1970) 399 U.S. 235, 239, 90 S.Ct. 2018, 2021, 26 L.Ed.2d 586.)In this instance, it is significant there also are no prior judicial opinions upholding the constitutionality of these classifications under the equal protection clause.   Moreover, the Supreme Court jurisprudence highlighting the constitutional infirmity of fixed point residency limitations in the distribution of state benefits is of rather recent vintage.

4.   Respondents attempt to distinguish California's veterans' benefit statutes from other unconstitutional fixed date residency requirement benefit programs by pointing out a veteran may enter into “active duty” and thereby qualify for benefits by re-enlisting in California.  (Mil. & Vet.Code, § 987.52.)This provision does not provide much solace to non-established California veterans of World War I, World War II, the Korean War or the Vietnam War.   To obtain these benefits, non-established resident veterans would have had to re-enlist and serve an additional four years immediately after being released from the horrors and perils of war—something an established resident veteran would not have had to suffer—or wait until the next military conflict to attempt to re-enlist then, at age 40, 50, 60 or older.This latter option, moreover, would seldom if ever exist as a practical matter.   It is no doubt the rare exception for any military person to re-enlist after years of separation from the service.   The decision to serve another four years with the military is typically made at or near the end of the prior period of service.Thus any attempt to treat the re-enlistment provision as a saving mechanism is useless for the overwhelming majority of otherwise qualifying veterans.   Moreover, the re-enlistment provision does no more to validate the statute than did the one-year extension for eligibility New Mexico drafted into its statute in Hooper.The state further attempts to distinguish California's benefit plan by pointing out current and future residents are entitled to the preferential treatment if they serve in a future campaign or expedition in which a medal is awarded.  (Mil. & Vet.Code, § 980(a)(2)(D).)   This provision merely reinforces the requirement one must first be a resident of California to be entitled to benefits after the conflict ends.Thus, these provisions in no way change or expand the narrow group of established resident veterans singled out for special treatment.

5.   Because of our disposition of this matter, and the impact our decision will have on further discrimination in the distribution of educational assistance to the dependents of veterans, we need not reach the question of whether item 1960 of the Budget Act violates the single subject rule of the California Constitution.   Nor do we reach the issue whether the exclusion from benefits of veterans resident in other states at the time they entered service impairs the constitutional right to travel thus requiring this legislative classification to be subjected to close scrutiny under the equal protection clause.  (Attorney General of N.Y. v. Soto–Lopez, supra, 476 U.S. 898, 106 S.Ct. 2317 [plur. op.];   see also Shapiro v. Thompson (1969) 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600.)

JOHNSON, Associate Justice.

LILLIE, P.J., and FRED WOODS, J., concur.