Before Judges Dreier, P.g. Levy and Wecker.
The opinion of the court was delivered by: Wecker, J.A.D.
 Argued: January 27, 1998
On appeal from the New Jersey Department of Human Services, Division of Family Development.
In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA"). 42 U.S.C.A. § 601 et seq. The PRWORA replaced the Aid to Families with Dependent Children program with the Temporary Assistance for Needy Families block grant program. The new federal legislation includes the following provision:
A State operating a program funded under this part may apply to a family the rules (including benefit amounts) of the program funded under this part of another State if the family has moved to the State from the other State and has resided in the State for less than 12 months.
Pursuant to PRWORA, in 1997 the New Jersey Legislature passed the Work First New Jersey Program, N.J.S.A. 44:10-34 et seq. As part of the Work First New Jersey Program, the Legislature enacted N.J.S.A. 44:10-46:
A recipient who has resided in New Jersey for less than 12 consecutive months shall be eligible to receive cash assistance benefits in the amount that the recipient would have received from the recipient's immediately prior state of residence if that amount is less than the cash assistance benefits provided by the program. This limitation on cash assistance benefits shall apply until the recipient has resided in New Jersey for 12 consecutive months.[ *fn1 ]
The statute thus creates a two-tier welfare system, whereby a person seeking welfare benefits who has moved to New Jersey from a state that offers a lower level of cash assistance will receive lower benefits during the first twelve months of residence in New Jersey than would a person who has lived in the state for twelve consecutive months. Because we conclude that such a system infringes upon a fundamental right guaranteed by the United States Constitution, the right to travel and to migrate, and because it violates the equal protection of the laws guaranteed both by the United States and the New Jersey Constitutions, we reverse the order of the Camden County Board of Social Services limiting plaintiff's benefits pursuant to the statute, and permanently enjoin defendant from applying that statute to plaintiff or others similarly situated.
Plaintiff, Dianna Sanchez, challenges the constitutionality of N.J.S.A. 44:10-46 on the grounds that it violates her fundamental constitutional right to travel and her right to equal protection under both the Fourteenth Amendment of the United States Constitution, U.S. Const. amend. XIV, § 1, and Article 1 of the New Jersey Constitution, N.J. Const. art. I, ¶ 1. Defendant contends that the statute neither penalizes the exercise of a fundamental constitutional right to travel, nor discriminates on the basis of a suspect classification, and does not require our strict scrutiny. Thus defendant denies that it must show a compelling state interest in the legislation, and argues that the statute meets the less stringent test defendant deems applicable to plaintiff's equal protection argument: a rational relationship between the legislation and a legitimate state interest. We agree with plaintiff that the statute burdens the fundamental right to travel and to migrate, and that it fails to serve any compelling state interest. We also agree that defendant has failed to show that the challenged statute bears even a rational relationship to any legitimate governmental interest.
Sanchez, who was born and raised in Camden, New Jersey, first qualified for AFDC benefits in 1991, when she had one child. She has lived in New York, New Jersey, and Puerto Rico with her growing family, and at variance times apparently has qualified for public assistance in each jurisdiction. Sanchez moved to New York State in October 1991, had a second child in 1992, and in November 1993 returned to Camden. At that time she qualified for AFDC benefits for herself and her two children. For several months in 1994, Sanchez lived with her children in New York; but in July 1994, upon returning to New Jersey, she once again qualified for AFDC benefits for herself and her children. A third child was born to Sanchez in Camden in September 1994, and with brief interruptions unrelated to the issues before us, she continued to receive AFDC benefits in New Jersey, until she again moved to New York. In June 1996, Sanchez delivered a fourth child and moved to Puerto Rico with the baby's father and her three older children. However, in December 1996 Sanchez returned to Camden with three of the children and again qualified for AFDC benefits. Those benefits were terminated in April 1997, because Sanchez had returned to Puerto Rico with her children.
In July 1997 Sanchez again returned to Camden with three of the children, one child having remained in Puerto Rico with his father. Sanchez was living with the children in one room of her mother's overcrowded apartment when she reapplied to defendant for public assistance. Her application was addressed pursuant to the newly enacted Work First New Jersey Program. Sanchez was granted $204 per month in benefits, the amount she would have received as a resident of Puerto Rico to support a family of four, instead of the $488 per month for which she would have qualified had she remained in New Jersey during the previous twelve consecutive months. See N.J.S.A. 44:10-46; N.J.A.C. 10:90-3.1(d). She also was awarded $379 per month in food stamps for the family, as well as medical coverage.
The Camden County Board of Social Services rejected plaintiff's appeal from the initial determination of benefits. Plaintiff then filed this appeal, along with a motion for emergent relief. During the pendency of this appeal, the Board agreed to provide Sanchez with the full benefits to which she would be entitled but for the twelve-month residency requirement, and to forego any claim for reimbursement in the event her appeal is unsuccessful. We therefore need not address the parties' arguments with respect to plaintiff's application for emergent relief.
The "framework for our analysis" is set forth in San Antonio School District v. Rodriguez, 411 U.S. 1, 17, 93 S. Ct. 1278, 1288 36 L. Ed. 2d 16, 33 (1973):
We must decide, first, whether the [challenged statute] operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. . . . If not, the [statute] must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.
An analysis of plaintiff's constitutional argument with respect to the right to travel must begin with Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969).
This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. That proposition was early stated by Chief Justice Taney in the Passenger Cases, 7 How. 283, 492, 12 L. Ed. 702, 790 (1849):
For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.
We have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision. It suffices that, as Mr. Justice Stewart said for the Court in United States v. Guest, 383 U.S. 745, ...