AGO Opinion 98012
Nebraska Veterans Homes; Admission Criteria
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).
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
(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).
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
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).
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.
Lauren L. Hill
Assistant Attorney General