Brockert v. Skornicka

• Decision Date: 24 August 1983
• Docket Number: No. 83-1331,83-1331
• Parties: Dwight O. BROCKERT, Jr., Plaintiff-Appellant, v. Joel SKORNICKA, Mayor, and the City of Madison, Wisconsin, a municipal corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1376

711 F.2d 1376

Dwight O. BROCKERT, Jr., Plaintiff-Appellant, v. Joel SKORNICKA, Mayor, and the City of Madison, Wisconsin, a

municipal corporation, Defendants-Appellees.

No. 83-1331.

United States Court of Appeals, Seventh Circuit.

Argued June 2, 1983.

Decided July 1, 1983.

Rehearing and Rehearing En Banc

Denied Aug. 24, 1983.

Thomas J. Kelly, Spring Green, Wis., for plaintiff-appellant.

Larry W. O'Brien, Asst. City Atty., Madison, Wis., for defendants-appellees.

Before BAUER and COFFEY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge. ^*

BAUER, Circuit Judge.

Plaintiff-appellant, Dwight Brockert, brought this action seeking declaratory and injunctive relief on the basis that his constitutional rights were violated when he was dismissed from employment by the City of Madison, Wisconsin. The district court granted summary judgment for the defendants and Brockert appealed; we have jurisdiction under 28 U.S.C. § 1291.

The district judge analyzed each of plaintiff's claims thoughtfully and correctly. Accordingly, we affirm the district court judgment and adopt its opinion, which is reprinted below.

AFFIRMED.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

______________

DWIGHT O. BROCKERT, JR.,

Plaintiff,

v. ORDER

81-C-489

JOEL SKORNICKA, Mayor, and

THE CITY OF MADISON, WISCONSIN,

a Municipal Corporation,

Defendants.

______________

This is a civil action for declaratory and injunctive relief based on plaintiff's claims that his employer, the City of Madison, violated his constitutional rights when he was dismissed. Plaintiff has moved for partial summary judgment on the issue of the constitutionality of § 3.27, Madison General Ordinances. Defendants have moved to dismiss the action for failure to state a claim upon which relief can be granted or, in the alternative, for summary judgment declaring the same section to be valid as written and as applied to plaintiff. Because matters outside the pleadings have been presented to the court and not excluded by it, and because all parties have had a fair opportunity to present materials to be considered on the motion for summary judgment, defendants' motion to dismiss will be treated as a motion for summary judgment. Rule 12(b), Federal Rules of Civil Procedure. The cross motions for summary judgment are presently before the court.

I find there is no genuine issue with respect to any of the following material facts.

FACTS

Plaintiff was a permanent employee of the defendant City of Madison and worked for the defendant City from 1966 to February 8, 1980; since 1974, he was employed as a Construction Inspector. Plaintiff was a member of City Employees Local No. 236, Laborers International Union of North America, AFL-CIO. In 1975, plaintiff made a request to Mayor Paul Soglin for an exemption from § 3.35(6)(f) ¹ (now § 3.35(10)(a) ) of the Madison General Ordinances which required him to reside in the City of Madison. The exemption was granted for one year. In 1977, at plaintiff's request, Mayor Soglin renewed the exemption for three years.

On December 3, 1979, plaintiff requested a continuation of permission to reside outside On January 3, 1980, defendant Skornicka informed the plaintiff that Dr. Keepman's letter contained insufficient information, but that he would consider further information directed to the specific medical difficulties involved and how they were exacerbated by an urban environment. Plaintiff's exemption expired on January 15, 1980, and on January 16, 1980, defendant Skornicka directed plaintiff's supervisor to take the action mandated by § 3.27, Madison General Ordinances, which, in language similar to § 3.35(6)(f), required automatic vacation of an employee's position for residence outside the city.

                the city from the defendant, Mayor Joel Skornicka.   Two weeks later, defendant Skornicka advised the plaintiff that he could not extend plaintiff's exemption without "medical information sufficient to show that there exists a compelling reason" for residing outside the city.   On December 21, 1979, Dr. Jay P. Keepman wrote to defendant Skornicka stating that, in his opinion, plaintiff's wife "must live in preferably a rural setting" and that he could not allow her to reside in an urban area like Madison
                

Plaintiff's supervisor notified plaintiff that he had scheduled a hearing for January 17, 1980, to determine whether plaintiff had failed to meet the residency requirements of § 3.27. After the hearing, defendant Skornicka temporarily extended plaintiff's exemption to provide plaintiff with an opportunity to submit either a proposal or further information in support of his request for an exemption. Subsequently, plaintiff's attorney proposed that plaintiff's wife's doctor discuss her condition with a doctor of defendant Skornicka's choosing, after which the doctor chosen by defendant Skornicka would make an oral report to the Mayor.

On January 30, 1980, defendant Skornicka rejected the proposal and demanded that plaintiff's wife sign a complete medical release. The defendant pledged his confidence and that of his staff and promised to return all medical information after the decision was made. The defendant also temporarily extended plaintiff's exemption to February 8 to allow plaintiff time to respond. On February 6, plaintiff's lawyer made a counter proposal offering to release all of the plaintiff's wife's medical information to a doctor chosen by the City. The doctor would then determine what information was relevant to the residence issue and report that information to defendant Skornicka. In a letter of February 8, defendant Skornicka rejected the counter proposal and confirmed the expiration of plaintiff's exemption as of that day. Plaintiff's position was vacated pursuant to § 3.27, Madison General Ordinances, as of that date.

Plaintiff commenced a state action based on the loss of his exemption on May 4, 1980. It was dismissed by stipulation of the parties on August 12, 1981. Plaintiff commenced this action on July 21, 1981.

OPINION

Upon a motion for summary judgment, the moving party will succeed if the documents properly before the court show there is no genuine issue as to any material fact and if the party is entitled to judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure. The subject of the cross motions for summary judgment is the constitutionality of § 3.27, Madison General Ordinances, ² on its face and as applied.

I. Facial Validity of § 3.27

Plaintiff contends that the lack of standards governing the Mayor's decision under § 3.27 whether to waive that section's residency requirements violates his rights to due process and equal protection. The defendants respond that the ordinance contains an implicit standard requiring it to be applied for the "good order of the city" and that, in any event, no standards are required by the United States Constitution.

Before reaching the merits of the question, I must deal with defendant's assertion that plaintiff may not challenge the validity of § 3.27 because he has accepted its benefits. ³ The United States Supreme Court has stated that it "will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits." Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandies, J., concurring), quoted in Fahey v. Mallonee, 332 U.S. 245, 255, 67 S.Ct. 1552, 1556, 91 L.Ed. 2030 (1947). However, the "doctrine has unquestionably been applied unevenly in the past, and observed as often as not in the breach." Arnett v. Kennedy, 416 U.S. 134, 153, 94 S.Ct. 1633, 1644, 40 L.Ed.2d 15 (1974). Furthermore, the doctrine is most appropriate when a party seeks to retain the benefits of a governmental act while attempting to invalidate its burdens. See Fahey, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 (those taking advantage of federally authorized banking privilege cannot challenge limitations imposed for public protection); United States v. San Francisco, 310 U.S. 16, 60 S.Ct. 749, 84 L.Ed. 1050 (1940) (city cannot retain federal land grant and attempt to invalidate restrictions under which it accepted the land). In this case plaintiff once benefited from the exemption provision, but now has been denied that benefit. He does not seek an unfair advantage from the city by keeping a benefit while attempting to do away with a corresponding burden. Indeed, were defendants' argument accepted, a party in plaintiff's position could never challenge the ordinance: if he attempted to invalidate the waiver provision prior to applying for it, there would be no controversy; having once applied and received the exemption and its benefits, he would be estopped from challenging it. In sum, plaintiff is not precluded from challenging the ordinance because he once benefited from it.

Plaintiff does not challenge the validity of the residency requirement of § 3.27 itself, only the indefinite exemption provision. Residency requirements have been upheld in the face of challenges based on the right to interstate travel, McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976) (per curiam) and the Fourteenth Amendment, Detroit Police Officers Assn. v. City of Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971), appeal dismissed for want of a substantial federal question, 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227 (1972). See also Ciechon v. City of Chicago, 634 F.2d 1055, 1059 (7th Cir.1980). Therefore, only the exemption provision of § 3.27 will be considered.

Plaintiff cites the venerable case of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), in support of his contention that an ordinance without standards for enforcement cannot be allowed to stand. In Yick Wo, the City of San Francisco prohibited the operation of any laundry in a wooden building without permission from the board of...