Association of Cleveland v. City of Cleveland, Oh, No. 1:04CV2007.
| Decision Date | 22 March 2006 |
| Docket Number | No. 1:04CV2007. |
| Citation | 422 F.Supp.2d 883 |
| Parties | ASSOCIATION OF CLEVELAND FIREFIGHTERS, LOCAL 93 OF THE INT'L ASS'N OF FIREFIGHTERS, et al., Plaintiffs v. CITY OF CLEVELAND, OHIO and Civil Service Comm'n of City of Cleveland, Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Joseph W. Diemert, Jr., Thomas M. Hanculak, Law Office of Joseph W. Diemert, Jr., Cleveland, OH, for Plaintiffs.
Amy E. Marquit Renwald, City of Cleveland, Thomas L. Anastos, Ulmer & Berne, Cleveland, OH, for Defendants.
This is a constitutional case, in which the plaintiffs pose a challenge to Cleveland's requirement that certain municipal employees, including firefighters, must establish residency in the city. Plaintiffs are the Association of Cleveland Firefighters, encompassing all members of Local 93, IAFF, as well as three individuals—Samuel Devito ("Devito"), Don Posante ("Posante"), and James Sliter ("Sliter")—who claim to have been individually harmed by the residency requirement (collectively, "the Firefighters"). Defendants are the City of Cleveland and the city's Civil Service Commission, allotted the task of managing appointment and promotion of fire-fighters by the City Charter (collectively, "the City"). Now before the court is a motion to dismiss for failure to state a claim filed by the City (Docket No. 8). For the following reasons, the court grants this motion and dismisses the Firefighters' complaint.
The Firefighters challenge the residency requirement codified in § 74(a) of Cleveland's City Charter, effective November 29, 1982. Section 74(a) provides:
Except as in this Charter otherwise provided or except as otherwise provided by a majority vote of the Council of the City of Cleveland, every temporary or regular officer or employee of the City of Cleveland, including members of all City boards and commissions established by the Charter or the ordinances of Cleveland, whether in the classified or unclassified service of the City of Cleveland, appointed after the effective date of this amendment, shall, at the time of his appointment, or within six months thereafter, be or become a bona fide resident of the City of Cleveland, and shall remain as such during his term of office or while employed by the City of Cleveland.
The Firefighters' complaint details the difficult personal and family circumstances which led the three individually-named plaintiffs to seek exemption from the residency requirement, as well as the categorical denials issued to these individuals by City officials.
Devito alleges that he requested an exemption from the residency requirement1 on two occasions: in April of 1995, and in July of 2004. In the first instance, Devito claimed that his son's brain tumor, and the ensuing chemotherapy (and its side effects, including complete blindness) required the child to reside in a single-story house, such as the one inhabited by Devito's ex-wife. Devito sought an exemption to allow him to live near this residence. Following his son's death, Devito again requested an exemption, due to his mother-in-law's debilitating illness. On both occasions, his requests were denied.
In October of 2003, Posante requested an exemption from the residency requirement, to allow him to share a residence with his mother-in-law, who required around-the-clock assistance. He, too, was denied an exemption by city officials.
Finally, James Sliter was shot in the neck by a gang in 1995 while walking with his wife in the City of Cleveland. Sliter has sought an exemption on the basis of two claims: that the gang members responsible for the shooting have been released from jail and present a direct threat to him, and that he would like to live near his children, who have resided with Sliter's wife since his 1996 divorce.
The Firefighters also allege that city officials facing less egregious circumstances have been granted exemptions from the requirement, though they do not elaborate on these cases.
In analyzing a motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6), the court "must construe the complaint in the light most favorable to the plaintiff and accept all factual allegations as true." Prater v. City of Burnside, Ky., 289 F.3d 417, 424 (6th Cir.2002), cert. denied, 537 U.S. 1018, 123 S.Ct. 550, 154 L.Ed.2d 425 (2002). The weight of the evidence and the credibility of witnesses generally are not factors to be considered when resolving a motion to dismiss. "A motion to dismiss under Rule 12(b)(6) should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Buchanan v. Apfel, 249 F.3d 485, 488 (6th Cir.2001)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
In seeking a declaratory judgment against § 74(a), the Firefighters argue that the City grants exemptions to the residency requirement in an arbitrary and capricious fashion, thereby running afoul of the Fourteenth Amendment's guarantee of equal protection. They also allege that the requirement violates their fundamental right to travel.2
Opposing the City's motion to dismiss, the Firefighters assert that "all persons similarly situated shall be treated alike." City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). They claim that other City employees were granted exemptions from the residency requirement, and were thus treated differently than the individually-named plaintiffs, who were denied an exemption.
In considering equal protection claims, the Supreme Court has held that a classification imposed by a state, municipal charter, or city council "neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity." FCC v. Beach Communications, Inc., 508 U.S. 307, 314-15, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). "Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257, (1993). "The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted." Beach Communications, Inc., 508 U.S. at 314, 113 S.Ct. 2096 (quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171, (1979)). Therefore, "Whose attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it." Id. at 315, 113 S.Ct. 2096.
In accordance with this deferential standard, the federal appellate courts have repeatedly held that municipal residency requirements do not violate a citizen's Fourteenth Amendment right to equal protection under the law. In Campbell v. City of Allen Park, 829 F.2d 576 (6th Cir.1987), the Sixth Circuit upheld Allen Park's termination of a Fire Department employee who did not meet the municipality's residency requirements. Likewise, in Gusewelle v. City of Wood River, 374 F.3d 569 (7th Cir.2004), the court stated that "[t]here are numerous conceivable reasons for retaining a residency requirement for government employees," id. at 578, before observing that "this court and others have repeatedly found that residency requirements are rationally related to a legitimate governmental interest." Id. (citing McCarthy v. Philadelphia Civil Sera Comm'n, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976); Andre v. Bd. of Trustees, 561 F.2d 48, 50 (7th Cir.1977); Wardwell v. Board of Education, 529 F.2d 625, 628 (6th Cir. 1976); Fedanzo v. City of Chicago, 333 Ill.App.3d 339, 266 Ill.Dec. 464, 775 N.E.2d 26 (2002)). See also Wright v. City of Jackson, Mississippi, 506 F.2d 900, 903 (5th Cir.1975)("[N]umerous [courts] have held that a municipal employee residence requirement bears a rational relationship to one or more legitimate state governmental purposes, and hence is constitutional under the traditional equal protection test.")
The City relies heavily on McCarthy, in which the Supreme Court upheld Philadelphia's residency requirement against challenges raised by firefighters, on both due process and equal protection grounds. The Court in McCarthy described the appellant's case as claiming "a constitutional right to be employed by the city of Philadelphia while he is living elsewhere." Id. at 646-47, 96 S.Ct. 1154. The Court found "no support in our cases for such a claim." Id. The Firefighters in the instant case do not face a predicament that appears in any way differentiable from those faced by the firefighters in McCarthy or the policemen in Detroit Police Officers Association v. City of Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971), cert. denied, 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227 (1972), a case whose holding provides much of the basis for the Court's opinion in McCarthy.
The Firefighters do argue that, unlike the regulation upheld in McCarthy, Cleveland's residency requirement is not appropriately defined or uniformly applied. In so doing, they direct the court's attention to McCarthy' s emphasis on "the validity of appropriately defined and uniformly applied bona fide residency requirements." 424 U.S. at 647, 96 S.Ct. 1154 (quoting Memorial Hospital v. Maricopa County, 415 U.S. 250, 255, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974))(emphasis added). This language suggests that the Firefighters might sustain a facial challenge by demonstrating that the City's requirement is unconstitutionally vague, or an as-applied challenge by producing evidence that similarly situated residents were treated differently under the terms of the requirement.
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