Hsieh v. Civil Service Commission of City of Seattle

• Decision Date: 26 August 1971
• Docket Number: No. 41516,41516
• Citation: 79 Wn.2d 529,488 P.2d 515
• Parties: , 3 Fair Empl.Prac.Cas. (BNA) 984, 4 Empl. Prac. Dec. P 7527 Chia Chu George HSIEH et al., Appellants, v. CIVIL SERVICE COMMISSION OF the CITY OF SEATTLE et al., Respondents.
• Court: Washington Supreme Court

Page 529

79 Wn.2d 529

488 P.2d 515, 3 Fair Empl.Prac.Cas. (BNA) 984,

4 Empl. Prac. Dec. P 7527

Chia Chu George HSIEH et al., Appellants, v. CIVIL SERVICE COMMISSION OF the CITY OF SEATTLE et al., Respondents.

No. 41516.

Supreme Court of Washington, En Banc.

Aug. 26, 1971.

Rehearing Denied Nov. 5, 1971.

Schweppe, Doolittle, Krug & Tausend, Peter E. Paget, Seattle, for appellants.

A. L. Newbould, Corp. Counsel, James M. Taylor, Asst. Corp. Counsel, Seattle, for respondents.

NEILL, Associate Justice.

The sole issue raised by this appeal is the validity of the provision in the Seattle City Charter and civil service rules which limits eligibility for the city's civil service examination to United States citizens. We hold that such provision as applied to these plaintiffs constitutes an invalid interference with laws of the United States in a field of federal supremacy.

Plaintiffs appeal from a judgment of dismissal of their declaratory judgment action. The action seeks a decree (1) permitting plaintiffs to take civil service examinations and (2) enjoining Seattle city officials from discharging plaintiffs from their current employment, other than as provided for termination of employment of persons within the city's civil service system.

Article 16, § 6 of the Seattle City Charter provides in part:

All applicants for offices 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.

Plaintiffs are 18 residents and taxpayers of King County. Each is a 'resident alien', having been granted permanent residency in the United States by the United States Department of Justice. During oral argument we were advised that each of the plaintiffs had filed his declaration of intent to become a United States citizen pursuant to federal naturalization law. All are competent engineers who have been employed by the city of Seattle under 'provisional' appointments for lengths of time ranging from about 1 year to more than 3 years. Being 'provisional' employes, plaintiffs are subject to termination for no other cause than the certified availability of an eligible 'regular' employee for his position.

The city recruited plaintiffs during a period of critical shortage of engineers in the Puget Sound area. Recruiting advertisements were broadly published in the city's search for trained engineers. Plaintiffs moved to Seattle from other states (and in one instance from Canada) in response to this solicitation. They were not required to take civil service examinations at the time of their employment, but were employed as 'provisional' employees under civil service rules.

In the fall of 1969, a register or list of persons eligible for permanent civil service employment in the positions held by plaintiffs was certified under the civil service rules. Faced with discharge under civil service rule 7.07, plaintiffs applied to take the examination for admission to the classified service. Each application was rejected, solely on the basis that the applicant was not a citizen of the United States. There is no issue as to the competency, character or work performance of any plaintiff.

Plaintiffs asserted to the trial court and here contend that the citizenship requirement of the city charter and the civil service rules is invalid on any one of five grounds: (1) conflict with the federal scheme under the Immigration and Naturalization Act of 1952, as amended (8 U.S.C. § 1101 et seq.); (2) conflict with the Washington Anti-discrimination Law (RCW 49.60); (3) conflict with the Civil Rights Act of 1870 (42 U.S.C.A. § 1981); (4) violation of the Due Process Clause (U.S.Const. amend. 14); (5) violation of the Washington and federal equal protection clauses (Const. art. 1, § 12; U.S.Const. amend. 14).

The protections of the Fourteenth Amendment apply to aliens as well as citizens. Truax v. Raich, 239 U.S 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915). Further, enactments of municipal corporations constitute 'state action' within the Fourteenth Amendment. Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). The meaning of these constitutional provisions in the context of aliens' rights has been succinctly stated by Justice Murphy in his concurring opinion in Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 1455, 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. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens. They extend their inalienable privileges to all 'persons' and guard against any encroachment on those rights by federal or state authority.

We find it unnecessary to deal with each of plaintiffs' contentions as we are of the opinion that the 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. ¹

The memorandum opinion of the trial judge makes clear that he felt compelled to his decision by language in our prior cases that 'the state and the various municipalities within it have the right to say that public work shall be done in any manner, at any price, and upon any terms which they see fit to lay down.' Jahn v. Seattle, 120 Wash. 403, 406, 207 P. 667, 668 (1922). Cornelius v. Seattle, 123 Wash. 550, 213 P. 17 (1923). The trial judge apparently felt precluded from the more modern and hospitable approach suggested in Purdy & Fitzpatrick v. State, 71 Cal.2d 566, 79 Cal.Rptr. 77, 456 P.2d 645 (1969), because, as stated in his memorandum opinion, 'Unfortunately, the Purdy case is not the law of the State of Washington nor of the United States, even assuming its applicability to the facts of this case.'

We do not read Jahn and Cornelius as establishing a rule of absolute discretion in state or local governments as to who will be allowed employment relating to public works. Jahn was a departmental decision in which we upheld a municipality's power to require that private contractors on public works projects pay their employees at a rate no less than that paid by the municipality for work of like character. In the context of that issue, we said:

'Regulations on this subject suggest only considerations of public policy. And with such considerations the courts have no concern.'

In other words, the state and the various municipalities within it have the right to say that public work shall be done in any manner, at any price, and upon any terms which they see fit to lay down. It is in the power of the state and of its subsidiary municipalities to say that public work shall not be done, or that it may be done, and in the latter case it can prescribe the terms and conditions upon which it will allow it to be proceeded with.

Jahn v. Seattle, 120 Wash. 403, 406, 207 P. 667 (1922). We there also took note of then extant United States Supreme Court cases upholding provisions regarding non-employment of aliens on public work. Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206, Ann.Cas.1971B, 287 (1915); Crane v. People of the State of New York, 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 (1915). However, see Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534, June 14, 1971, wherein, in referring to Heim and Crane, the Supreme Court stated: 'But this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a 'right' or as a 'privilege. " It should be clear from a complete reading of the Jahn opinion that our language had reference to situations where the subject matter suggests only those considerations of local public policy with which courts have no concern. The result and reasoning of the Jahn case were not directed to such other considerations as preemption by or conflict with superior law.

Cornelius v. Seattle, 123 Wash. 550, 213 P. 17 (1923), also a departmental decision, involved a city ordinance limiting the collection of swill from public eating places to responsible citizens of the United States. Unfortunately, in the course of that decision, we made the overbroad statement that Jahn 'held' that a city may limit public employment to United States citizens. There, we stated at 557, 213 P. at 19:

It may be admitted without cavil * * * that the Fourteenth Amendment applies equally to aliens as to citizens. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140; United States v. Wong Kim Ark, 169 U.S. 649,...