Wright v. City of Jackson, Mississippi, 74-1668

• Decision Date: 15 January 1975
• Docket Number: No. 74-1668,74-1668
• Citation: 506 F.2d 900
• Parties: J. D. WRIGHT et al., Plaintiffs-Appellants, v. The CITY OF JACKSON, MISSISSIPPI, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 900

506 F.2d 900

J. D. WRIGHT et al., Plaintiffs-Appellants, v. The CITY OF JACKSON, MISSISSIPPI, et al., Defendants-Appellees.

No. 74-1668.

United States Court of Appeals, Fifth Circuit.

Jan. 15, 1975.

Russell X. Thompson, Memphis, Tenn., Danny E. Cupit, Jackson, Miss., Charles

C. Burch, Memphis, Tenn., for plaintiffs-appellants.

John E. Stone, City Atty., Jackson, Miss., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before COLEMAN, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

In March 1973 the Mayor and Board of Commissioners of the City of Jackson, Mississippi, passed an ordinance requiring all municipal employees qualified under the rules and regulations of the Civil Service Commission to maintain their domicile and principal place of residence within the corporate limits of the City during the period of their employment. ¹ This suit was brought as a class action by a group of nonresident firemen. ² They challenge the constitutionality of the ordinance under the Fourteenth Amendment and under 42 U.S.C.A. 1983. The firemen seek both declaratory and injunctive relief, alleging that the ordinance denies them their right to travel, their right to choose a residence, or, in the alternative, their right to employment, and is unconstitutional in the absence of any compelling governmental need. Without benefit of any hearing on the merits of the claim, the district court dismissed the case for failure to state a claim upon which relief could be granted and the firemen appeal. Since we can find no fundamental constitutional right to intrastate travel infringed by this ordinance, the City was not required to justify the ordinance under the compelling interest standard which must be met upon interference with a right to travel interstate. We, therefore, affirm the dismissal failure to state a claim.

The firemen assert that the district court erred in dismissing the case without first requiring the City to show justification for the ordinance and to demonstrate that the ordinance was necessary to meet a compelling governmental interest. They argue that under the reasoning of Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), and Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), the City must show a substantial and compelling reason for imposing residency requirements which interfere with the fundamental constitutional right to travel. At oral argument counsel for appellants conceded that these cases dealt with durational residency requirements and the right to interstate travel whereas the case sub judice involves a continual residency requirement and the right to intra state travel. He argued, however, that there is no logical distinction between interstate and intrastate travel and that the Shapiro-Dunn right to freedom of travel should also extend to intrastate travel and continuing residency requirements. We think that such application would substantially distort the principles of Shapiro and Dunn, and the reasons for those decisions.

Shapiro involved a requirement for the receipt of welfare payments that the applicant be a resident of the state for a year. The Court was very careful to make clear that the 'residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites for assistance.' 394 U.S. at 636, 89 S.Ct. at 1332. Although it held the durational prerequisite unconstitutional, the Court emphasized that its holding did not invalidate bona fide continuing residence requirements. 394 U.S. at 638, n. 21, 89 S.Ct. at 1322. Later, the Court in Dunn invalidated a durational residency requirement for voter registration but noted that 'nothing said today is meant to cast doubt on the validity of appropriately defined and uniformly applied bona fide residence requirements.' 405 U.S. at 342, n. 13, 92 S.Ct. at 1003. See also Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974). We agree with the Supreme Court of California's analysis in Ector v. City of Torrance, 10 Cal.3d 129, 109 Cal.Rptr. 849, 514 P.2d 433 (1973), cert. denied, 415 U.S. 935, 94 S.Ct. 1451, 39 L.Ed.2d 493 (1974), that nothing in Shapiro or any of its progeny stands for the proposition that there is a fundamental constitutional 'right to commute' which would cause the compelling governmental purpose test enunciated in Shapiro to apply. Accord, Abrahams v. Civil Service Commission, 65 N.J. 61, 319 A.2d 483 (1974). Contra, Krzewinski v. Kugler, 338 F.Supp. 492 (D.N.J.1972) (3-Judge court); Donnelly v. City of Manchester, 111 N.H. 50, 274 A.2d 789 (1971).

Any doubt that the 'right to travel' rationale of Shapiro and Dunn was meant to apply to intrastate travel and municipal employment residency requirements was put to rest by the Supreme Court's treatment of litigation challenging a Detroit ordinance similar to the Jackson residency requirement. Detroit Police Officers Association v. City of Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971). The Detroit ordinance was sustained by the Michigan Supreme Court on the traditional equal protection test that the classification bore a reasonable relationship to the object of the legislation. An appeal was taken to the United States Supreme Court which ordered that the case be 'dismissed for want of a substantial federal question.' 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227 (1972).

The Seventh Circuit recently considered the effect of this disposition in a case involving a challenge to a Chicago ordinance requiring policemen to reside within the city. Ahern v. Murphy, 457 F.2d 363 (7th Cir. 1972). They observed that such a dismissal for want of a substantial federal question

is a decision on the merits of the case appealed. Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247, 79 S.Ct. 978, 3 L.Ed.2d 1200 (1959); Stern & Grossman, Supreme Court Practice (4th ed 1969) 197. In fact, dismissal for want of a substantial federal question in a state court appeal is fully equivalent to affirmance on the merits in an appeal from a federal court insofar as the federal questions under 28 U.S.C. 1257(1) and (2) are concerned.

457 F.2d at 364. They then held that the dismissal amounted to a decision on the merits by the Supreme Court that such a municipal employee residence requirement does not violate any provision of the federal Constitution and, with that precedent, affirmed the district court's dismissal of the Chicago complaint. The fact that both Detroit Police Officers Association and Ahern concerned residency requirements applicable to policemen does not distinguish them from this case dealing with firemen. The occupation of the individual challenging the regulation is not relevant in considering which equal protection test to apply, although it may be important in meeting the test on the facts of the case.

Plaintiffs place great reliance on Krzewinski v. Kugler, 338 F.Supp. 492 (D.N.J.1972) (3-Judge court), as authority for the view that municipal residence requirements should be tested by the strict compelling governmental purpose standard. In Krzewinski the court did just what plaintiffs say we should do in this case: it imposed upon the municipality the burden of demonstrating a compelling interest to justify the ordinance. The court there, after an evidentiary hearing, found such a compelling interest to exist where the residence requirement was applicable to police officers. In Donnelly v. City of Manchester, 111 N.H. 50, 274 A.2d 789 (1971), however, the New Hampshire court, imposing the compelling interest test, weighed the 'reasonableness of a restriction upon private rights' against the 'importance of the public benefit' and found a residency requirement applicable to school teachers invalid. These are the only two published cases to come to our attention which apply the compelling interest test in this situation. Both of these cases were decided before the Supreme Court's dismissal of Detroit Police Officers Association and the decision in Ahern, and we reject them as persuasive precedents.

Since we hold that a bona fide continual residency requirement challenged on equal protection grounds is not to be tested by the strict compelling governmental purpose standard, there was no need for the district court to hold an...