Eggert v. City of Seattle

• Decision Date: 25 January 1973
• Docket Number: No. 42299,42299
• Citation: 81 Wn.2d 840,505 P.2d 801
• Parties: Virginia EGGERT et al., Respondents, v. CITY OF SEATTLE and Seattle Civil Service Commission, Appellants.
• Court: Washington Supreme Court

Page 840

81 Wn.2d 840

505 P.2d 801

Virginia EGGERT et al., Respondents, v. CITY OF SEATTLE and Seattle Civil Service Commission, Appellants.

No. 42299.

Supreme Court of Washington, En Banc.

Jan. 25, 1973.

Rehearing Denied March 16, 1973.

A. L. Newbould, Corp. Counsel, E. Neal King, Asst. Corp. Counsel, Seattle, for appellants.

Jackson, Goldmark & Bender, Jeffrey H. Brotman, Seattle, for respondents.

UTTER, Associate Justice.

Respondents challenged certain provisions of the Seattle City Charter granting preference in employment for some positions to those who have been residents of the city, or in the case of respondent Eggert, residents of the county, for at least one year. The trial court found the challenged provisions unconstitutional and granted respondents' request that they be allowed to compete on an equal basis with all other applicants for the civil service positions at issue. The city appeals.

The claim of respondents is that durational residency requirements infringe upon their constitutionally protected right to travel and that the charter provisions further violate the equal protection clause of the Fourteenth Amendment. The sole issue is whether the City of Seattle may lawfully impose a one year durational residency requirement upon applicants for civil service positions who are otherwise valid residents of the municipality. We hold they may not and affirm the trial court.

Concern over the right to travel has historically been a concern of both English and American people. The recognition of the importance of freedom of movement ranges from the declaration in the Magna Charta allowing every free man to leave England except during wars, to article 13, section 1 of the University Declaration of Human Rights of the United Nations which declares 'Everyone has the right to freedom of movement and residence within the borders of each State.'

The growth of this right is in part the result of efforts to evade restrictions imposed by feudal apprenticeship and paupership laws in 17th century England. By the time of the American Revolution, restrictions by England, on travel west of the Alleghenies was a source of grievance sufficient to be the cause of denunciation from the Continental Congress. Z. Chafee, Jr., Three Human Rights in the Constitution 162 (1956).

The Articles of Confederation provided in article 4 that 'the people of each State shall have free ingress and regress to and from any other State.' The constitution, however, failed to specifically enumerate a right to travel. Boudin, The Constitutional Right to Travel, 56 Col.L.Rev. 47 (1956).

Perhaps the earliest enunciation of the right to travel was in Corfield v. Coryell, 6 Fed.Cas. p. 546 (No. 3,230) (C.C.E.D.Pa.1823). There Justice Washington, enumerating those rights he felt to be fundamental, noted at page 552:

The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise . . . may be mentioned as (one) of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental . . .

In the Passenger Cases, 48 U.S. (7 How.) 283, 492, 12 L.Ed. 702 (1849), Chief Justice Taney, in a dissent, commented that freedom to travel is an incident of national citizenship. This dissent is quoted with approval in Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 18 L.Ed. 744 (1867), where the United States Supreme Court based the right to travel upon a constitutional requirement that all citizens have free access to the seats of government.

Modern development of the doctrine began with Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941), where the court held a law denying assistance to nonresident indigents entering the state was an impermissible burden on interstate commerce. A concurring opinion by Mr. Justice Douglas attributed the source of the right to travel as 'an incident of National citizenship' and was an implied right 'fundamental to the national character of our Federal government.' A second concurring opinion by Mr. Justice Jackson, assigned the source of the right to the privileges and immunities clause of the Fourteenth Amendment.

In Kent v. Dulles, 357 U.S. 116, 78 S.Ct 1113, 2 L.Ed.2d 1204 (1958), the due process clause of the Fifth Amendment was cited as a source of the right to travel. The court, in dictum, recognized 'Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage.' The same source for the right was cited by the court in Aptheker v. Secretary of State, 378 U.S. 500, 517, 84 S.Ct. 1659, 1669, 12 L.Ed.2d 992 (1964), where the court premised its decision on the right to travel. Freedom of travel was stated to be a liberty guaranteed by the Fifth Amendment and, as well, 'a constitutional liberty closely related to rights of free speech and association . . .' ¹

The right to travel was given further scope in United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239 (1966), where the court expanded its protection to incidents involving private individuals. The majority noted:

The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. . . .

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Although there have been recurring differences in emphasis within the Court as to the source of the constitutional right of interstate travel, there is no need here to canvass those differences further. All have agreed that the right exists.

(Footnote omitted.)

The court further stated, in note 17:

The right to interstate travel is a right that the Constitution itself guarantees . . . the right to travel freely from State to State finds constitutional protection that is quite independent of the Fourteenth Amendment.

Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), adhered to Guest in declining to ascribe the right to travel to any particular provision of the constitution. The court did, however, at one point apply an equal protection analysis, finding infringement of a fundamental right of interstate movement and requiring a showing of a compelling state interest to justify the infringement. In another part of the opinion, the court rejected a rational relationship argument by the state and held, where by traveling the parties were exercising a constitutional right, 'any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a Compelling governmental interest, is unconstitutional.'

In Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), the court again recognized the status of the right to travel as a fundamental right protected by the equal protection clause of the Fourteenth Amendment where it stated, 'The constitutional question presented is whether the Equal Protection Clause of the Fourteenth Amendment permits a State to discriminate in this way among its citizens.' The protection of the right by the constitution itself is also recognized by the majority in Dunn, where citing Justice Stewart's concurring opinion in Shapiro, it noted 'The right to travel is 'an Unconditional personal right,' a right whose exercise may not be conditioned.' Justice Stewart had, in Shapiro, emphasized that travel is an established constitutional right, not a mere conditional liberty subject to regulation and control under conditional due process or equal protection standards.

As also noted in Dunn v. Blumstein, Supra, to decide whether a law violates the equal protection clause, the court must look to three things: (1) the character of the classification in question, (2) the individual interests affected by the classification, and (3) the governmental interests asserted in support of the classification. We hold that, in the instant case, respondents' right to equal protection of the law has been violated.

The City of Seattle's charter, classifying bona fide residents upon the basis of recent travel, penalizes only those residents who have traveled into the city during the qualifying period. As such, it is a classification which affects a fundamental right involving a protected individual interest, and under Shapiro and Dunn, the city must show a compelling state interest to justify its action.

Alternately, since the existence of the right to travel is an unconditional personal right guaranteed by the constitution, Shapiro and Dunn require that a compelling state interest be shown before the state may burden this right.

The right to travel is a right applicable to intrastate as well as interstate commerce. Inasmuch as the right to travel is not based on the commerce clause, it does not depend on the interstate nature of travel. King v. New Rochelle Municipal Housing Authority, 314 F.Supp. 427 (S.D.N.Y.1970); Karp v. Collins, 310 F.Supp. 627, 634 (D.N.J.1970). Rights, such as the right to travel, which involve personal liberty are not dependent on state lines. Both travel within and between states is protected.

The city attempts to justify its actions by arguing that the court, in a note in Shapiro, indicated its decision there did not, per se, invalidate the validity of waiving a residence requirement, determining eligibility to vote, etc. As stated in Shapiro v. Thompson, Supra, note 21:

We imply no view of the validity of waiting-period Or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth. Such requirements may promote compelling state interests on the one hand, or, on the other, may not be penalties upon the exercise of the constitutional right of interstate travel.

Much of the difficulty posed by the note involves a determination of what...