Detroit Police Officers Ass'n v. City of Detroit
| Decision Date | 27 August 1971 |
| Docket Number | A,No. 18,18 |
| Parties | , 78 L.R.R.M. (BNA) 2267, 66 Lab.Cas. P 52,632 DETROIT POLICE OFFICERS ASSOCIATION (D.P.O.A.), a Michigan non-profit corporation, et al., Plaintiffs-Appellees, v. CITY OF DETROIT, Michigan, a municipal corporation, Defendant-Appellant. pril Term. |
| Court | Michigan Supreme Court |
Livingston, Gregory, Van Lopik & Higle, Winston L. Livingston, Nancy Jean Van Lopik, Detroit, for plaintiffs-appellees.
Michael M. Glusac, Corp. Counsel, John R. McKinlay, Asst. Corp. Counsel, Detroit, for defendant-appellant; Miller, Canfield, Paddock & Stone, Detroit, of counsel on the brief.
Before the Entire Bench.
I agree with the opinion of Justice Williams that the trial court erred in holding that the Detroit Common Council did not have the power to pass Ordinance 327--G.
I dissent from Part IV of my Brother's opinion which holds that Ordinance 327--G violates the equal protection clauses of the United States Constitution and of the Michigan Constitution.
The test for validity under the equal protection clauses, as noted by Justice Williams, is stated in Tracer v. Bushre (1968), 381 Mich. 282, 286--287, 160 N.W.2d 898, 899:
"These constitutional provisions (the Federal and State equal protection clauses) do not mean that there can be no classification in the application of statutes and ordinances, but only that the classification must be based on natural distinguishing characteristics and must bear a reasonable relation to the object of the legislation.' Cook Coffee Co. v. Village of Flushing (1934), 267 Mich. 131, p. 134, 255 N.W. 177.'
The job of a policeman does have 'natural distinguishing characteristics' from all other city employees. There is a special relationship between the community policed and a policeman. A policeman's very presence, whether actually performing a specified duty during assigned hours, or engaged in any other activity during off-duty hours, provides a trained person immediately available for enforcement purposes.
Policemen are required by department order to be armed at all times, and why is this? Simply because by such requirement they are, no matter where they are or what they are doing, immediately prepared to perform their duties. They are charged with law enforcement in the city of Detroit, and obviously must be physically present to perform their duties. The police force is a semi-military organization subject at all times to immediate mobilization, which distinguishes this type of employment from every other in the classified service.
I would reverse the decision of the trial court and hold that Ordinance 327--G is valid in its totality.
I cannot agree with the conclusion of my brother Williams.
He would hold that the residency ordinance invidiously discriminates against police officers, because no waiver is permitted for them.
By striking the words 'police officers' from the first sentence of the ordinance, my brother would simply amend the ordinance to eliminate all residence requirements for police officers.
What remains is a requirement that firemen and all other classified employees must reside in the city unless they obtain waivers, but Policemen are free to live elsewhere without waivers.
Having concluded that policemen have been discriminated against, he would correct the situation by discrimination in their favor.
Personally, I disagree with the major premise. I find nothing invidious about the classification which requires police officers to be residents of the city.
That classification amounts to nothing more than a legislative determination that the nature of a police officer's work is such that he ought to be a resident of the city.
One of the most sensitive problems in law enforcement today is the relationship between the police and the black community. Over 40% Of the people of Detroit are black. Less than 10% Of the population of suburban Wayne, Oakland and Macomb Counties is black.
The common council of the City of Detroit has made a difficult legislative judgment, weighting the desirability of having a resident police force on the streets against the detriment of losing many experienced, dedicated and courageous officers who choose to live in the suburbs.
The common council has chosen a course which will make it more difficult to recruit policemen and keep them. But it has also chosen a course which will make recruitment of black officers more imperative.
The residency requirement is not designed solely to assure that the officer has a greater stake in the City. It is also intended to bring about a more cooperative attitude among the citizenry with whom the police are in daily contact.
The common council wants--desperately needs--to promote a feeling of trust, confidence and fraternity between the people of Detroit and their police department.
In that respect and in this time, the constabulary is unique among the municipal departments.
Special treatment of police residency puts them in the catagory of the judges and other elected officials of the city. That classification is at least debatably productive of proper municipal goals.
I see no reason for this court to substitute its judgment for that of the elected legislative body of the City of Detroit.
I would reverse the judgment of the trial court.
This case has three issues. The first is whether the Detroit Common Council can legislate a residency requirement for city employees that includes city police--or whether any residency requirement for policemen is the exclusive authority of the Detroit Police Commissioner. The second is whether the Common Council has legal authority to legislate a residency requirement for city employees. The third is the validity of Detroit Ordinance 327--G (§§ 2--1--1.1--.3 of the Municipal Code of the City of Detroit) which unqualifiedly required its police officers to reside in the city while permitting the residence requirement to be waived under certain conditions for most other city employees.
Ordinance 327--G was unanimously adopted by the Common Council of the City of Detroit on May 17, 1968, after a public hearing, and became effective on June 8, 1968. It reads as follows:
'Sec. 2--1--1.2. Residence construed to be actual domicile. Residence shall be construed to be the actual domicile of the individual where he normally eats and sleeps and maintains his normal personal and household effects.
Plaintiff, Detroit Police Officers Association, hereinafter called D.P.O.A., is the recognized and exclusive collective bargaining representative of the approximately 3,200 patrolmen and policewomen who are employed by the Police Department of the City of Detroit, most of whom are members of plaintiff D.P.O.A. Of the individual plaintiffs, plaintiff Whall is a resident of the City of Detroit and desires to move his residence outside of the city. Plaintiff Mierzejewski is a resident of the city of Lincoln Park, Michigan. Plaintiff O'Reilly is a resident of Redford Township, Michigan. All of the individual plaintiffs are patrolmen employed by the Police Department of the City of Detroit and are members of plaintiff D.P.O.A.
Plaintiffs contend that the ordinance in question is an infringement of the powers delegated to the Police Commissioner by the Charter of the City of Detroit, that it is beyond the scope of the powers granted to the Common Council by the Charter to enact an ordinance requiring all police officers to reside in the city and that the instant ordinance is a violation of the equal protection of the law.
The trial court held that the residency requirement of Ordinance 327--G attempts to regulate the internal rules and regulations of the Police Department and contravenes the city charter which places the power to make these rules in the Police Commissioner. The trial court also held that the ordinance discriminates arbitrarily against police officers as contrasted with all other city employees by denying them the same conditional waiver of residency and in so doing denies them the full protection of the laws. From the decision of the trial court, leave to appeal directly was granted by this Court.
With respect to plaintiff's claim that Detroit Ordinance 327--G is an infringement of the powers of the Detroit Police Commissioner, the powers and duties of both the Common Council and the Police Commissioner are defined in the Charter of the City of Detroit. It is to that document that we must look in determining the relationship between the Common Council and the Commissioner of Police.
The Common Council is vested by the Charter with the legislative power of the city. 1 Its legislative powers and duties include the following among others:
1. 'to enact ordinances to carry into effect the powers conferred and the duties imposed upon the city by the constitution and the laws of the state, to make operative the provisions of this charter and to promote the general peace, health,...
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