KANSAS CITY, KAN. FRAT. ORDER v. City of Kansas City

• Decision Date: 01 November 1984
• Docket Number: Civ. A. No. 84-2316.
• Citation: 620 F. Supp. 752
• Court: U.S. District Court — District of Kansas
• Parties: KANSAS CITY, KANSAS FRATERNAL ORDER OF POLICE, LODGE NO. 4; International Association of Firefighters Local No. 64; Theresa McBride; Joseph P. Odle; and John Schneider, Plaintiffs, v. CITY OF KANSAS CITY, KANSAS, a Municipal Corporation; Chester Owens; Richard Scherzer; Ed Alvey; Richard Ruiz; Bud Neath; Ron Mears; Jack Reardon, members of the City Council of Kansas City, Kansas, Defendants.

620 F. Supp. 752

KANSAS CITY, KANSAS FRATERNAL ORDER OF POLICE, LODGE NO. 4; International Association of Firefighters Local No. 64; Theresa McBride; Joseph P. Odle; and John Schneider, Plaintiffs, v. CITY OF KANSAS CITY, KANSAS, a Municipal Corporation; Chester Owens; Richard Scherzer; Ed Alvey; Richard Ruiz; Bud Neath; Ron Mears; Jack Reardon, members of the City Council of Kansas City, Kansas, Defendants.

Civ. A. No. 84-2316.

United States District Court, D. Kansas.

November 1, 1984.

COPYRIGHT MATERIAL OMITTED

Steve A.J. Bukaty, Blake & Uhlig, Kansas City, Kan., for plaintiffs.

Harold T. Walker, Asst. City Atty., Kansas City, Kan., for defendants.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This matter comes before the court on plaintiffs' motion for a preliminary injunction and defendants' motion for judgment on the pleadings or to dismiss. At a hearing on October 9, 1984, we provided all parties with an opportunity to present evidence and oral argument regarding both motions. For the reasons set out below, we will grant defendants' motion as to two of plaintiffs' four counts, and will deny plaintiffs' motion for a preliminary injunction.

Of the facts material to these two motions, most are a matter of public record. On July 21, 1983, defendant City of Kansas City, Kansas, (the City) by and through its city council (whose members are the individual defendants) enacted Municipal Ordinance No. 64504. Section 1 of this ordinance states the basic rule that all employees of the City must establish and maintain their permanent residence within the City limits throughout the period of their employment. An exception is made in section 2 for those employees residing in Wyandotte County; they need not establish a residence in Kansas City until and unless they change their place of permanent residence. Pursuant to section 3, all other current City employees are given fifteen months from the effective date of the ordinance (July 29, 1983) in which to establish a permanent Kansas City residence. Section 7 then provides that "any employee violating any of the provisions of this ordinance shall be subject to discharge from employment with the City of Kansas City, Kansas." The three individual plaintiffs in this action reside outside of Wyandotte County and thus face discharge from their employment if they fail to establish a permanent residence within the City by October 29, 1984.

Ordinance No. 64504 repealed two existing City ordinances. Essentially, these required that Kansas City, Kansas, police officers and fire fighters be bona fide residents of Wyandotte County. Neither ordinance, however, contained a clause such as section 7 of the new ordinance—expressly making violators subject to discharge from their employment.

Aside from the three named individuals, the plaintiffs in this case are Lodge # 4, Fraternal Order of Police (FOP) and Local # 64, International Association of Fire Fighters (IAFF) collectively, "the Unions". Pursuant to the Kansas Public Employer-Employee Relations Act (PERA), K.S.A. 75-4321 to 4337, inclusive, each Union has entered into a "memorandum of understanding" with the City. Both such agreements were in force on July 21, 1983, and both contain a provision that discharge shall be only for "just cause." The parties are in agreement that neither memorandum of understanding contains a provision directly addressing the residency of City police officers and fire fighters.

Our research confirms that Kansas City, Kansas, is far from the first city to enact an ordinance of this kind. Starting some ten to fifteen years ago, challenges to residency ordinances began to appear in the reporters with some frequency. Absent unique factual circumstances (e.g., grounds for estoppel, see Lines v. City of Topeka, 223 Kan. 772, 780, 577 P.2d 42, 49 (1978)), nearly every such challenge has been rejected. This is especially true of challenges based on the United States Constitution.

Ordinances such as No. 64504 have been upheld in suits alleging interference with municipal employees' right to travel—both interstate, McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645, 647, 96 S.Ct. 1154, 1155, 47 L.Ed.2d 366 (1976); Lines, 223 Kan. at 779, 577 P.2d 42; Andre v. Board of Trustees of the Village of Maywood, 561 F.2d 48, 52-53 (7th Cir. 1977), and intrastate (the "right to commute"), Andre, 561 F.2d at 52-53; Wright v. City of Jackson, Mississippi, 506 F.2d 900, 901 (5th Cir.1975). Other challenges have been based on the equal protection clause of the fourteenth amendment, claiming that ordinances which apply only to police officers and fire fighters create irrational classifications. Such challenges, too, have been rejected. Detroit Police Officers Ass'n v. City of Detroit, 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227 (1972), dismissing for lack of substantial federal question, Detroit Police Officers Ass'n v. City of Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971); Mogle v. Sevier County School District, 540 F.2d 478, 484 (10th Cir.1976); Wright, 506 F.2d at 903; Lines, 223 Kan. at 780, 577 P.2d 42.

Various substantive due process challenges have been launched against residency ordinances. In Mogle, the Tenth Circuit rejected an assertion that such an ordinance created a "conclusive and irrebuttable presumption" that nonresidents could not properly perform their duties. 540 F.2d at 484-85. A vagueness challenge was rejected by the Kansas Supreme Court in Lines, 223 Kan. at 777, 577 P.2d 42 (rejecting claim that the term "residence" was overly vague). The same vagueness argument was rejected by the Massachusetts Supreme Judicial Court. Doris v. Police Comm'r of Boston, 374 Mass. 443, 373 N.E.2d 944 (1978). Yet a third substantive due process challenge was based on an ordinance's asserted "retroactivity" in forcing current nonresident employees to move within the city or face discharge. The Seventh Circuit rejected that theory in upholding the ordinance at issue in Andre, supra, 561 F.2d at 51.

Finally, the Andre court also discussed and rejected a claim that such an ordinance amounted to an "impairment of the obligation of contract," in violation of article 1, section 10, clause 1 of the Constitution. Although a union contract in that case permitted discharge only for "just cause," the court refused to find an impairment of that contract by the ordinance. 561 F.2d at 51. The Mississippi Supreme Court concurs. Hattiesburg Firefighters Local v. Hattiesburg, 263 So.2d 767 (Miss.1972).

We recount these numerous unsuccessful challenges only for the light they throw on the legal challenges stated in plaintiffs' four-count complaint. Counsel for plaintiffs conceded that such holdings had made it difficult for him to draft tenable objections to the ordinance in question. In fact, he listed the need to do extensive legal research as one reason for the plaintiffs' delay in filing their complaint.

Count I of that complaint alleges a denial of procedural due process. As more fully explained below, plaintiffs believe the ordinance's failure to make express provision for predischarge notice and a hearing renders it facially unconstitutional. In Count II, plaintiffs allege that Ordinance No. 64504 "is a retroactive law in violation of Article 1, section 10, clause 1 of the United States Constitution." Although this count appears to include elements of substantive due process, we will follow the parties' lead in referring to it as the "impairment of contract" count. Conceding that cases such as Andre would appear to foreclose this challenge, plaintiffs argue that Andre was wrongly decided and ask us to disregard it.

Plaintiffs' remaining two counts are grounded in state law. Count III alleges a violation of the Kansas Public Employer-Employee Relations Act (PERA), K.S.A. 75-4321 to 4337, inclusive. By Count IV, plaintiffs assert that defendants are equitably estopped to enforce Ordinance No. 64504. In support of this count, plaintiffs allege reasonable reliance on representations by defendants that no residency requirement would ever affect their employment status.

I. Defendants' Motion for Judgment on the Pleadings or to Dismiss (converted to Motion for Summary Judgment).

Turning to the motions at hand, we first consider defendants' motion for judgment on the pleadings or to dismiss. At our October 9th hearing, we heard testimony from Mr. Andrew Alvey, President of FOP. We have also read three affidavits submitted on behalf of plaintiffs, and have noted the terms of collective bargaining agreements between certain of the parties. Since these matters have been considered in ruling on defendants' motion, we will treat that motion as one for summary judgment. See Fed.R.Civ.P. 12(b), (c).

We consider defendants' motion first for the reason that plaintiffs' motion would be moot as to any counts on which defendants obtain summary judgment. Since we decline to enter such judgment on two of plaintiffs' four counts, we will subsequently consider plaintiffs' motion for a preliminary injunction.

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ.P. 56(c). In considering such a motion, the court must examine all the evidence in a light most favorable to the opposing party. Mogle v. Sevier County School District, 540 F.2d 478, 482 (10th Cir.1976), cert. denied, 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d 572 (1976). Where different inferences could be drawn from conflicting affidavits and depositions, summary judgment should be denied. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). In any event, the moving party must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Madison v. Deseret Livestock...