Herriott v. City of Seattle

• Decision Date: 27 July 1972
• Docket Number: No. 42051,42051
• Citation: 500 P.2d 101,81 Wn.2d 48
• Parties: , 5 Fair Empl.Prac.Cas. (BNA) 46, 4 Empl. Prac. Dec. P 7935 James H. HERRIOTT and Stuart A. Ramsay, Appellants, v. CITY OF SEATTLE et al., Respondents.
• Court: Washington Supreme Court

Page 48

81 Wn.2d 48

500 P.2d 101, 5 Fair Empl.Prac.Cas. (BNA) 46,

4 Empl. Prac. Dec. P 7935

James H. HERRIOTT and Stuart A. Ramsay, Appellants, v. CITY OF SEATTLE et al., Respondents.

No. 42051.

Supreme Court of Washington, En Banc.

July 27, 1972.

Lycette, Diamond & Sylvester, Lyle L. Iversen, Seattle, for appellants.

A. L. Newbould, Corp. Counsel, John P. Harris, James M. Taylor, Seattle, for respondents.

STAFFORD, Associate Justice.

Eligibility to take Seattle's civil service examinations is limited to citizens of the United States. This appeal involves the validity of provisions in the city's charter and civil service rules which create such limitation.

Both appellants are aliens who lawfully reside in the United States and who have applied to become naturalized citizens. Each is a taxpayer of King County, Washington. Both are 'provisionally' employed by the city as transit operators and each is a competent worker. Their duties are such that they can be performed as well by them as by citizens. No issue of security is involved.

Appellants Herriott and Ramsay have been continuously employed by the city from 1966 and 1968 respectively. They were intially employed during a period of relatively full employment. Changing economic conditions, however, brought forth a number of citizen applicants seeking permanent civil service employment as transit operators. A list of persons eligible for permanent civil service employment in such positions was made available to the appointing authority and appellants were notified that, effective June 12, 1970, they would be discharged as 'provisional employees'.

Appellants filed requests to take the required civil service examination. Their applications were rejected by the city's civil service commission solely because they were not citizens of the United States.

Appellants brought this action to enjoin the city from discharging them and to have provisions of the charter and rules, making citizenship a requirement for taking ¹ the civil service examination, declared void. They appeal from a judgment dismissing their complaint. The city was temporarily enjoined, however, from dismissing appellants pending the outcome of this appeal.

The challenged provisions are the same as those involved in Hsieh v. Civil Serv. Comm'n, 79 Wash.2d 529, 530, 488 P.2d 515, 516 (1971) Article 16, § 6 of the Seattle City Charter provides in part:

All applicants for officers or places in the classified civil service shall be subject to examination, which shall be public, competitive and open to all citizens of the United States with specified limitations as to residence, age, health, habits and moral character . . .

Civil service rule 4.01, adopted pursuant to charter authority, provides that in order to qualify for examination the applicant must be a citizen of the United States. Rule 7.07 allows provisional employment of noncivil service persons when there is no suitable eligible register of regular civil service personnel available. Such provisional employment is restricted to 60-day, renewable periods, pending availability of an 'adequate eligible register,' and must cease within 21 days after notice that a regular civil service employee is available, unless an extension is granted by the secretary of the civil service department.

However, Hsieh does not resolve the issues currently before us. In that case we held that the city's application of the challenged charter and rule provisions to those appellants conflicted with the federal scheme of immigration. In the instant case, however, we are unable to determine whether such a conflict exists.

The Immigartion and Nationality Act of 1952 as amended, 8 U.S.C. § 1101 et seq. (1970), (hereinafter referred to by sections of United States Code Title 8) is the source of the federal policy upon which we based our decision in Hsieh. The fact establishes a quota system. Section 1151 (a) sets numerical limitations on the total number of immigrants that may be lawfully admitted. However, the apportionment therein is exclusive of 'special immigrant' ² and 'immediate relatives' ³ of United States citizens. Section 1153 provides for the allocation of immigrant visas in 'preference' categories with percentage limitations subject to the quota in § 1151(a). There are seven 'preference' categories ⁴ and an eighth 'nonpreference' category. ⁵ Thus, all immigrants admitted into the United States fall into one of four groups: (1) 'special immigrants', which includes five subclassifications; (2) 'immediate relatives'; (3) immigrants in one of seven 'preference' categories; or (4) 'nonpreference' immigrants.

The federal scheme regulating the particular aspect of immigration discussed in Hsieh derives from § 1182(a)(14). ⁶ That section requires the Secretary of Labor to make the following determination as a condition precedent to the admission of certain classes of immigrants:

1. That there are not sufficient workers in the United States who are able, willing, qualified and available:

a. At the time of application for a visa; and

b. At the place to which the alien is destined to perform such labor; and

2. That the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.

Such determination is required for only four classes of immigrants: (1) 'special immigrants' born in an independent country in the Western Hemisphere or Canal Zone (one of five subclasses of 'special immigrants'); (2) members of professions or persons with exceptional ability in the sciences or arts (one of seven 'preference' categories); (3) qualified immigrants capable of performing specified skilled or unskilled labor needed in the United States (one of seven 'preference' categories); and (4) 'nonpreference' immigrants. No other classes of immigrants need to have such determination made to be admitted.

Pursuant to § 1182(a)(14), the Secretary of Labor has promulgated regulations to implement the federal scheme. To reduce delay in processing an alien's request for a visa, the Secretary has made the determination required and has published it in three schedules. 29 C.F.R. § 60.

Schedule 'A' lists categories of employment for which there is a shortage of workers and in which aliens will not adversely affect the wages and working conditions of similarly employed workers in the United States. 29 C.F.R. § 60.2(a)(1); 29 C.F.R. § 60.6. This schedule, originally published in 1965 and amended in 1966, is in effect until amended and applies to the entire United States unless a specific geographic area is exempted with regard to a specific employment category. 29 C.F.R. § 60.2(b).

Schedule 'B' lists categories of employment for which the required determination could not be made at the time of its publication. 29 C.F.R. § 60.2(a)(2); 29 C.F.R. § 60.6.

Schedule 'C' is also a precertification list, but unlike Schedule 'A', the employment categories in Schedule 'C' are under continuous review. Schedule 'C' is published at least quarterly. 29 C.F.R. § 60.3(c). Modification in the schedules can be initiated by directing a request to the Secretary of Labor. 29 C.F.R. § 60.2(c).

If immigrants are in one of the four classes for which a determination by the Secretary of Labor is required as a prerequisite for admission and if they are qualified to be in an employment category listed in Schedule 'A' or in the appropriate Schedule 'C', the requirement in § 1182(a)(14) is satisfied. But if they do not possess skills in categories listed in Schedules 'A' or 'C', an individual determination must be made in their case. 29 C.F.R. § 60.3.

In Hsieh v. Civil Serv. Comm'n, 79 Wash.2d 529, 488 P.2d 515 (1971), the plaintiffs were civil engineers, an employment category listed in the Secretary's Schedule 'A'. We held, at page 532, 488 P.2d at page 517:

federal supremacy in the field of immigration as exercised by Congress precludes the city from establishing citizenship as a condition to eligibility for civil service examination for general public employment in occupations which have been designated as needed by the Secretary of Labor.

In the instant case, however, appellants are transit operators. That employment category is not listed in Schedules 'A' or 'B', ⁷ and the record does not reveal whether it was listed in the appropriate Schedule 'C'. Further, the record does not reveal that the Secretary of Labor made an individual determination in appellants' case. In fact, the record does not disclose the class of immigrant in which appellants fall. Thus, it is impossible for us to decide whether § 1182(a)(14) applies to them. In the absence of such information we cannot determine whether the citizenship requirement, as applied to these appellants, conflicts with the federal scheme under the Immigration and Nationality Act of 1952.

This hiatus brings us to appellants' contention that the citizenship requirement of the city charter and civil service rules violates the equal protection clause of the Fourteenth Amendment.

It is not questioned that the city's act of excluding aliens from civil service is within the ambit of the Fourteenth Amendment. Hsieh v. Seattle, Supra. The equal protection clause applies to resident aliens as well as citizens. Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 420, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Truax v. Raich, 239 U.S. 33, 39, 36 S.Ct. 7, 60 L.Ed. 131 (1915); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). As stated by Justice Murphy's concurring opinion in Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 1445, 89 L.Ed. 2103 (1945):

Since an alien obviously brings with him no constitutional rights, Congress may exclude him in the first instance for whatever reason it sees fit. Turner v. Williams, 194 U.s. 279, 24 S.Ct. 719, 48 L.Ed. 979. The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. ...