Conway v. City of Kenosha, Wisconsin

• Decision Date: 02 December 1975
• Docket Number: No. 75-C-466.,75-C-466.
• Citation: 409 F. Supp. 344
• Parties: James W. CONWAY, and the class he represents, Plaintiff, v. The CITY OF KENOSHA, WISCONSIN, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

409 F. Supp. 344

James W. CONWAY, and the class he represents, Plaintiff, v. The CITY OF KENOSHA, WISCONSIN, et al., Defendants.

No. 75-C-466.

United States District Court, E. D. Wisconsin.

December 2, 1975.

COPYRIGHT MATERIAL OMITTED

James W. Conway, pro se.

Brigden, Petajan, Linder & Honzik by Roger E. Walsh, Milwaukee, Wis., for defendants.

DECISION and ORDER

MYRON L. GORDON, District Judge.

On August 7, 1975, the plaintiff in this action, employed as city attorney for the defendant city of Kenosha, filed with this court his complaint, affidavit, motion for temporary restraining order, motion for a preliminary injunction, and motion for determination of a class action in this matter. The plaintiff challenges the residency requirement imposed upon civil city employees by the defendants. After receiving the written objections of the defendants to the granting of a temporary restraining order, this court restrained the defendants on August 15, 1975, from terminating the employment of the plaintiff as city attorney for the city of Kenosha by reason of his nonresidency within the county of Kenosha until further order of the court.

The parties have filed briefs and affidavits addressed to the plaintiff's motions for a preliminary injunction and for determination of a class action. For the reasons set forth in this decision, which constitute my findings of fact and conclusions of law, I hold that each of these motions should be denied.

The plaintiff was appointed by the defendant, Wallace E. Burkee, mayor of the city of Kenosha, to the position of city attorney of that city, was subsequently confirmed by the common council of Kenosha, and commenced performing the duties of that position on December 2, 1974. At the time of his appointment, the plaintiff was aware that a residency requirement for civil service employees had been established by the Kenosha civil service commission. The residency requirement appears in Rule IV(5) of the rules and regulations of the civil service commission and reads:

"Residence. Any applicant must be a citizen of the United States and must also have been a resident of Kenosha County for at least 12 months immediately prior to filling out an application. However, residence requirements may be waived at the discretion of the Director of Personnel when in his opinion the local supply of qualified applicants for the particular class is inadequate. In such case, an employee shall be granted a period of six months to take up permanent residence in Kenosha County. This provision may in specific cases and for cause be waived by the Civil Service Commission at the request of the Director of Personnel."

These rules and regulations were adopted by the common council of the city of Kenosha on October 17, 1960.

The plaintiff was not a resident of Kenosha county at the time of his appointment, nor was he required by the defendants to relocate to Kenosha county at that time. He was, and is now, a resident of the city of Milwaukee, which is located in Milwaukee county. The plaintiff informed the defendant mayor and other city officials involved in the appointment process that he had no intention of immediately relocating to Kenosha county. The parties disagree as to whether he informed city officials at that time that he had no intention of becoming a county resident after six months, and also as to whether he was informed by the defendant mayor that the residency requirement would not be enforced against him in the future. My resolution of the legal issues raised by the plaintiff's motions renders these factual disputes immaterial at this stage of the proceedings.

On May 30, 1975, the plaintiff sent the city administrator, not a defendant in this action, a legal opinion that the city residency requirement was unconstitutional. The defendants were aware of this opinion when they took the subsequent actions described herein. The defendant Mayor directed the plaintiff by means of a letter dated July 10, 1975, "to become a permanent resident of Kenosha County on or before August 15, 1975, or it will be necessary to terminate your employment." Upon the plaintiff's request that the question of the residency requirement be taken before the city finance committee and the common council, each of those bodies voted to maintain the requirement. Those aldermen voting to maintain the requirement are named as defendants in this action.

At the common council meeting, the defendant mayor stated his belief that the common council did not have the authority to grant the plaintiff an exception to the residency requirement. At the same meeting, the defendant, John R. Madison, Jr., stated that he had voted for the confirmation of the plaintiff as city attorney, but that he now felt that he had made a mistake in so voting.

Since the entry of the temporary restraining order by this court on August 15, 1975, the plaintiff has continued to perform his duties as city attorney. However, the institution of this litigation by the plaintiff against the defendant city officials has created impediments to the obtaining of legal advice by the defendant from the city attorney.

PLAINTIFF'S MOTION FOR CLASS ACTION DETERMINATION

The plaintiff seeks to maintain this action on behalf of himself and "all present and future City employees who live now or will live in the future outside of the County of Kenosha." After stating that general definition of the proposed class, the complaint then states:

"Specifically, the plaintiff brings this action on behalf of the following sub-classes in addition to the general class above given: (a) Present and future City employees who are not union members; (b) Present and future City employees who are not required, by their jobs, to frequently be called to unscheduled active duty on short notice; and (c) Present and future City employees who hold professional or management positions of a confidential nature who cannot, by law, be union members."

In his reply brief, the plaintiff provides a third definition: "all employees governed by the Civil Service Rule. This excludes police and fire personnel . . .;" and also a fourth definition: "The class asserted is all employees."

"To be maintainable as a class action, a claim must support a preliminary determination that the proposed class is capable of definition. It must also satisfy Rule 23, Federal Rules of Civil Procedure, in that it must fulfill all the requirements of 23(a) and come within one of the subparts of 23(b). Thomas v. Clarke, 54 F.R.D. 245, 248 (D.Minn. 1971)." Kriger v. European Health Spa, 56 F.R.D. 104, 105 (E.D.Wis.1972).

I believe that the plaintiff has failed adequately to define the class he proposes to represent. The defendants have noted the existence of six classes of city employees not subject to civil service pursuant to the ordinance which established the civil service commission, in addition to fire and police employees who are precluded by statute from being subject to civil service. It is also noted that the "specific" sub-classes provided in the complaint are defined in terms such as "frequently . . . called" on "short notice," or "positions of a confidential nature;" these are terms which are inherently nonspecific.

Moreover, I do not believe that the proposed class satisfies the requirements of Rule 23(a). An affidavit of the city supervisor of personnel states that the plaintiff was one of only three civil service employees subject to the residency requirement who did not reside in Kenosha county, according to the city's personnel records. The other two individuals had yet to complete their first six months of city employment at the time of the making of the affidavit. Accordingly, it does not appear that "the class is so numerous that joinder of all members is impracticable," at least so far as present employees are concerned. Neddo v. Housing Authority of City of Milwaukee, 335 F.Supp. 1397 (E.D.Wis. 1971).

It is also not clear that "there are questions of law or fact common to the class," if the class is defined to include union members. In Wisconsin, residency has been held to be a mandatory subject of collective bargaining. City of Brookfield v. Wisconsin Employment Relations Commission, Case No. 31923, Wis.Cir.Ct., Waukesha County (June 1974). Where a residency requirement has been agreed to through the collective bargaining process, the situation of union employees covered by such a requirement is completely different from the plaintiff's situation. Questions of law and fact relating to union members would differ considerably from those relating to the plaintiff.

Rule 23(a)(3) requires that "the claims or defenses of the representative parties be typical of the claims or defenses of the class," and I do not believe the plaintiff has met this requirement either. Certain issues are unique to the plaintiff's claim, including equitable estoppel and claims for damages and punitive damages. The plaintiff's equal protection challenge to the residency requirement entails the use of either the "rational basis" or the "compelling interest" test. The plaintiff himself suggests that the results of these tests may differ between classes of employees. For example, a residency requirement may be justified as to employees who do emergency work, but not as to others.

In my opinion, the plaintiff is also unable to fulfill the requirement of Rule 23(a)(4) that a representative be one who will "fairly and adequately protect the interests of the class." The previous paragraph provides an indication of some possible conflicts of interest between the plaintiff and some members of the proposed class. In addition, the plaintiff's unique position as individual plaintiff, would-be representative plaintiff, and counsel for the class, as well as city attorney for the defendant city, charged by law with conducting the legal business of the city and defending the city and its officers in all litigation would raise...