Board of Supervisors, Pima County v. Robinson , 10 Ariz. App. 238 ( 1969 )

MOLLOY, Chief Judge

(specially concurring) .

The decision of Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), has few attractions for me. I have difficulty in understanding how a residence requirement for welfare benefits is an unconstitutional restriction upon the “right to travel.” It appears to me that the effect of Shapiro is to give welfare recipients greater freedom than workers in our' society have. Workers are usually “married” to their jobs and are unable to travel as they would like because of what most conceive to be the economic necessities of life. But, whether understood or not, the decision is the supreme law of the land and the only question is whether it applies to the instant litigation.

This case, of course, can be distinguished on the facts. Shapiro was concerned with welfare programs which are, in part, federally funded, and are federally controlled. We are here concerned with charity which is completely supported by local taxes and controlled by state law. However, the reasoning of Shapiro leaves no room for distinction. The ratio decidendi of Shapiro is that the' residence requirement creates two classes of citizens, who are equal, but who receive unequal treatment. This, according to Shapiro, is “ * * * invidious discrimination denying * * * equal protection of the laws.” 89 S.Ct. at 1327.

Hence, reluctantly, because it appears to be an unnecessary encroachment upon local government, and because, in my view, the additional mobility that will be provided to welfare families will not inure to the benefit of the children of those families, I concur.