Walsh v. City and County of Honolulu

• Decision Date: 01 February 2006
• Docket Number: No. CV 05-00378 DAE LEK.,CV 05-00378 DAE LEK.
• Citation: 423 F.Supp.2d 1094
• Parties: Kevin R. WALSH and Blane M. Wilson, as individuals and on behalf of all others similarly situated, Plaintiffs, v. CITY AND COUNTY OF HONOLULU, a Hawaii municipal corporation; Mark J. Bennett, Attorney General of the State of Hawaii, in his official capacity; and Marie Laderta, Interim Director, State of Hawaii Department of Human Resources Development, in her official capacity, Defendants.
• Court: U.S. District Court — District of Hawaii

423 F.Supp.2d 1094

Kevin R. WALSH and Blane M. Wilson, as individuals and on behalf of all others similarly situated, Plaintiffs, v. CITY AND COUNTY OF HONOLULU, a Hawaii municipal corporation; Mark J. Bennett, Attorney General of the State of Hawaii, in his official capacity; and Marie Laderta, Interim Director, State of Hawaii Department of Human Resources Development, in her official capacity, Defendants.

No. CV 05-00378 DAE LEK.

United States District Court, D. Hawai`i.

February 1, 2006.

COPYRIGHT MATERIAL OMITTED

Anne L. Williams, Davis Levin Livingston Grande, Lois K. Perrin, American Civil Liberties Union of Hawaii, Michael K. Livingston, Davis Levin Livingston Grande, Honolulu, HI, for Kevin R. Walsh as an individual and on behalf of all others similarly situated, Blane M. Wilson as individuals and on behalf of all others similarly situated, Plaintiffs.

Donna M. Woo, Office of Corporation Counsel-Honolulu, Gordon D. Nelson, Office of Corporation Counsel-Honolulu, Charleen M. Aina, Office of the Attorney General-Hawaii, Deirdre Marie-Iha, Office of the Attorney General-Hawaii James Earl Halvorson, Office of the Attorney General-Hawaii, Richard H. Thomason, Office of the Attorney General-Hawaii, Honolulu, HI, for Kenneth Y. Nakamatsu Director, City and County of Honolulu Department of Human Resources, in his individual and official capacities, City and County of Honolulu a Hawaii municipal corporation, Mark J. Bennett in his official capacity as the Attorney General of the State of Hawaii, Kathleen N.A. Watanabe Director, State of Hawaii Department of Human Resources Development, in her individual and official capacities, Marie Laderta Interim Director, State of Hawaii Department of Human Resources Development, in her official capacity, Defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

EZRA, District Judge.

The Court heard Plaintiffs' Motion on January 30, 2006. Lois Perrin, Esq., and Anne Williams, Esq., appeared at the hearing on behalf of Plaintiffs; Gordon Nelson and Donna Woo, Deputies Corporation Counsel, appeared at the hearing on behalf of Defendant City and County of Honolulu ("the City"); and Mark Bennett, Attorney General, Deirdre Marie-Iha, and Charleen Aina, Deputies Attorney General, appeared at the hearing on behalf of Defendants Mark Bennett and Marie Laderta ("State Defendants"). After reviewing the motion and the supporting and opposing memoranda, the Court GRANTS Plaintiffs' Motion for Preliminary Injunction.

BACKGROUND

Plaintiffs challenge the constitutionality of the pre-employment residency requirement for public employment set forth in Hawaii Revised Statute Section 78-1(c). That section provides as follows:

All persons seeking employment with the government of the State or in the service of any county shall be citizens, nationals, or permanent resident aliens of the United States, or eligible under federal law for unrestricted employment in the United States, and residents of the State at the time of their application for employment and as a condition of eligibility for continued employment.

"Resident" means a person who is physically present in the State at the time the person claims to have established the person's domicile in the State and shows the person's intent is to make Hawaii the person's permanent residence. In determining this intent, the following factors shall be considered:

(1) Maintenance of a domicile or permanent place of residence in the State;

(2) Absence of residency in another state; and

(3) Former residency in the State.

Haw.Rev.Stat. § 78-1(c).

The Hawaii Administrative Rules provide that "[a]pplicants shall be residents or former residents of the State and citizens, nationals, permanent resident aliens of the United States . . . at the time of application." Haw. Admin. R. § 14-3.01-4. At the hearing, State Defendants represented that this rule has been repealed.

In addition, the City has implemented the residency requirement through its Civil Service Rules. Initially, Section 3-4 provided that at the time of application, applicants shall be residents or former residents of the State. However, prompted by the instant lawsuit, effective November 19, 2005, the City amended the rule to eliminate the reference to "former residents."

On March 15, 2005, prior to the amendment to the Civil Service Rule and prior to any action taken to repeal the administrative regulation, Kevin Walsh ("Walsh") applied for three positions with the City. On May 20, 2005, Blane Wilson ("Wilson") applied for one position with the City. Question 4 of the City's electronic application for employment that Plaintiffs filled out provided as follows: "RESIDENCY RQUIREMENT: The Hawaii public employment law requires that applicants be current or former legal residents of Hawaii at the time of application." (Walsh Decl. ¶6; Wilson Decl. ¶17, attached to Pls.' Mot.) Both Plaintiffs responded that they were not a legal resident of Hawaii. Walsh received three rejection letters, one for each position, and Wilson received one rejection letter. Each rejection letter stated that "your application cannot be accepted because you are not a resident of the State of Hawaii, which is required for this position. Hawaii State law requires that applicants be current or former residents of Hawaii at the time of application." (Walsh Decl. Exs. 1-3; Wilson Decl. Ex. 3.) Wilson also applied for a job with the State. He received a letter dated March 15, 2005, informing him that he was ineligible for the position because he did not meet the minimum experience required and he was not a legal resident of the State of Hawaii. (Wilson Decl. Ex. 2.)

Plaintiffs seek a preliminary injunction barring Defendants from enforcing the pre-employment residency requirement of Hawaii Revised Statute Section 78-1(c).

STANDARD OF REVIEW

In order to obtain a preliminary injunction, the moving party must demonstrate either "(1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in [the plaintiff's] favor." Am. Tunaboat Ass'n v. Brown, 67 F.3d 1404, 1411 (9th Cir.1995) (brackets in original); Warsoldier v. Woodford, 418 F.3d 989, 993-94 (9th Cir.2005). These two formulas are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases. Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc., 762 F.2d 1374, 1376 (9th Cir.1985) (citations omitted). "Under any formulation of the test, [however,] the plaintiff must demonstrate that there exists a significant threat of irreparable injury." Id. It is within the court's discretion to grant or deny a motion for preliminary injunction. Id.

DISCUSSION

Plaintiffs argue that the pre-employment residency requirement is unconstitutional because it has the impermissible purpose of deterring migration into the State. Plaintiffs further argue that the law violates the Equal Protection Clause because it violates the fundamental right to travel by imposing a de facto durational requirement, and because it treats former residents different from non-residents. Finally, Plaintiffs argue that the residency requirement violates the Privileges and Immunities Clause of Article VI since it discriminates against non-residents seeking to practice their trade.

Defendants argue that Plaintiffs lack standing and that Plaintiffs' challenge to the "former residency" factor is moot. Defendants also argue that Plaintiffs' Privileges and Immunities claim fails because public employment is not a fundamental right. Defendants further argue that Plaintiffs' Equal Protection claim fails because the residency requirement is nondurational and meets the rational basis test.

I. Standing

Defendants initially argue that Plaintiffs do not have standing to challenge the constitutionality of Hawaii Revised Statute section 78-1. To have standing, a plaintiff must demonstrate: 1) an injury in fact—an invasion of a legally protected interest that is concrete and particularized, as well as actual or imminent, not conjectural or hypothetical; 2) a causal relationship between the injury and the challenged conduct—an injury that is fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and 3) a likelihood, not mere speculation, that the injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 1126 (9th Cir.1996).

Defendants argue that Plaintiff Wilson lacks standing because he fails to meet the first and third requirements of the Lujan standing test. First, Defendants argue that Wilson was not qualified for the State position that he applied for, and therefore, would have been rejected for that position regardless of his residency status. Consequently, he suffered no injury in fact from his rejection and his injury cannot be redressed by a favorable decision. Second, Defendants argue that Wilson cannot challenge the former residency requirement because it has not caused him any injury in fact. Finally, Defendants argue that Wilson does not have standing to raise a right to travel claim, because he has subsequently moved to Hawaii, and therefore has received no injury in fact to his right to travel.

Defendants argue that Plaintiff Walsh lacks standing with respect to the State because, he did not actually apply for a position with the State and thus suffered no injury in fact. Additionally, Defendants assert that any claim by Walsh that he was deterred from applying to positions with the State is too generalized and conjectural to meet the requirement of injury in fact. Finally, Defendants argue that the standing arguments that...