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Court of Appeal, Second District, Division 3, California.

Silas ECTOR, Petitioner and Appellant, v. CITY OF TORRANCE, etc., et al., Respondents.

Civ. 38769.

Decided: October 26, 1972

Kurlander, Solomon & Hart, Stephen Warren Solomon and Ronald L. Gould, Santa Monica, for appellant. Ralph H. Nutter, Los Angeles, for respondents.

Appellant, Silas Ector, appeals from a judgment denying his petition for a peremptory writ of mandate wherein he sought vacation of respondent City of Torrance's order terminating his employment as a librarian with respondent city and removing him from classified civil service, and reinstatement to his former position with full back compensation.

The undisputed facts set forth in appellant's petition reveal that on or about April 15, 1968, appellant commenced employment as a senior librarian with respondent city. On or about September 30, 1968, appellant was appointed to the position of principal librarian. On March 31, 1969, appellant was appointed permanently in the classified civil service to the position of principal librarian. Appellant served in that capacity continuously thereafter to and including February 19, 1971.

On or about February 19, 1971, appellant was discharged by respondent city from his position as principal librarian and from any and all other employment with respondent city, and he was removed from the classified civil service and denied all benefits incidental thereto, for the sole reason that he was not and did not intend to become a resident of the City of Torrance.

Article VII, section 6, of the Torrance City Charter provides: ‘All officers and employees of the City of Torrance shall be or become residents of said City within six (6) months after their appointment or date of employment provided, however, that as to appointive officers or employees having technical, special or professional knowledge or abilities, the City Council may waive the residence requirements. No officer or employee may be appointed permanently in the classified service unless and until he has become a resident of the City.’

In his petition for writ of mandate appellant alleged that respondents' action in terminating his employment and removing him from classified civil service was in excess of respondent city's jurisdiction because of the proscription of Government Code section 500831 and was in violation of appellant's constitutional rights, specified as follows: ‘(a) His right to equal protection of the law; (b) His right to freedom of travel; (c) His right to reside in a location of his own choosing; (d) His right to public employment; (e) His inalienable rights as set forth in Article I, Section 1 of the California Constitution; and (f) His privileges and immunities granted to all other citizens, as set forth in the Fourteenth Amendment to the United States Constitution and Article I, Section 21 of the California Constitution.’

Portions of the findings of fact of the trial court were as follows: ‘1. Respondent City of Torrance . . . was and now is a municipal corporation and charter city operating under the laws of the State of California. . . . [¶]5. At all times herein mentioned petitioner was not a resident of the City of Torrance. [¶]6. A purpose behind the imposition of the residence requirement was the incidental benefit to respondent City resulting from the fact that public employees, including petitioner would tend more readily to spend their earnings in respondent City if they resided there which expenditures would include the payment of local taxes, rents and shopping, to the general economic benefit of the community, which expenditures would be hardly likely for non-residents. [¶]7. The incidental benefit referred to hereinabove in paragraph 6 is sufficient to justify the imposition of the residency requirement by respondent City as it serves as a reasonable basis to justify such action.’

The conclusions of law of the trial court were as follows: ‘1. The action of respondent in terminating petitioner's employment and removing him from classification of civil service was not in violation of Section 50083 of the Government Code, which is not applicable to respondent chartered city. [¶]2. Article VII, Section 6 of the Torrance City Charter is constitutional in accordance with the United States and California Constitutions. [¶]3. The action of respondent as aforesaid did not violate the constitutional rights of petitioner under the California Constitution and the Constitution of the United States in that: (a) Petitioner was not denied equal protection of the law. (b) Petitioner was not denied freedom to travel. (c) The requirement and restriction of residence for City's municipal employees is reasonable and rational and furthers the public welfare of the City. [¶]4. Article VII, Section 6 of respondent's charter is not arbitrary, unreasonable and without relation to respondent city's public welfare. [¶]5. The action of City in terminating Petitioner because of his failure to comply with Article VII, Section 6 did not deny Petitioner privileges and immunities as set forth in the United States and California constitutions. [¶]6. The conduct of respondents in terminating petitioner was not arbitrary. [¶]7. The petitioner is not entitled to back compensation. [¶]8. The action of the respondents in terminating petitioner was not in excess of the jurisdiction and was in accordance with the manner required by law. [¶]9. Judgment should be entered: (a) Ordering the denial of the Writ of Mandate and the discharge of the alternative writ. (b) Awarding Respondents its costs in this action.’

Turning first to the constitutional issue, as will be explained the claim asserted by the appellant rests basically on alleged denials of his right to equal protection and his right to freedom of travel as guaranteed by the Constitution of the United States. The equal protection argument challenges the classification which diffentiates between resident and nonresident persons insofar as the continuation of city employment is concerned, while the contention as to the right to freedom of travel attacks the power of the city to prohibit its employees from residing at a location which is not within the boundaries of the city.

A stringent test with respect to compliance with the Equal Protection Clause of the Fourteenth Amendment is applicable when the differentiation embodied in a challenged enactment adversely affects a fundamental constitutional right. Thus, in the case of In re Antazo, 3 Cal.3d 100, at page 110, 89 Cal.Rptr. 225, at page 261, 473 P.2d 999, at page 1005, the Supreme Court stated: ‘The traditional test has been that the ‘distinction drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal.’ (McDonald v. Board of Election Com'rs (1969) 394 U.S. 802, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739, 745–746.) But a stricter standard has been prescribed in cases involving ‘suspect classifications' or ‘fundamental interests.’ (Purdy & Fitzpatrick v. State of California, supra, 71 Cal.2d at pp. 578–579, 79 Cal.Rptr. 77, 456 P.2d 645.)'

In Purdy & Fitzpatrick v. State of California, 71 Cal.2d 566, at pages 578–579, 79 Cal.Rptr. 77, at page 85, 456 P.2d 645, at page 653, it was stated: ‘Under the Fourteenth Amendment, the state may not condition public employment upon a waiver of constitutional right [fn. omitted] nor may the state create arbitrary classifications for purposes of hiring and firing public employees. [Fn. omitted.] [¶] The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. In cases involving ‘suspect classifications' [fn. omitted] or ‘fundamental interests' [fn. omitted] of those suffering discrimination, the United States Supreme Court prescribes a strict standard for reviewing the particular enactment under the equal protection clause. Not only must the classification reasonably relate to the purposes of the law [fn. omitted], but also the state must bear the burden of establishing that the classification constitutes a necessary means of accomplishing a legitimate state interest [fn. omitted], and that the law serves to promote a compelling state interest.’

The initial inquiry, therefore, is whether the respondent city must demonstrate a reasonable basis for the classification as to residence or, under the strict standard, a compelling interest in it. With respect to freedom to travel as a basic right under the Constitution, in Shapiro v. Thompson, 394 U.S. 618, at page 634, 89 S.Ct. 1322, at page 1331, 22 L.Ed.2d 600, at page 615, the United States Supreme Court stated: ‘But in moving from State to Statc or to the District of Columbia appellees [plaintiffs] were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.’ The question of whether a requirement that a municipal employee reside in the municipality penalizes the right of freedom to travel to a substantial degree has been discussed in recent cases.

In Krzewinski v. Kugler, (D.C.D.N.J. 1972) 338 F.Supp. 492, a three-judge panel was convened pursuant to 28 U.S.C. § 2281 to determine the constitutionality of the New Jersey police and firemen tenure statute which provided in substance that municipal police and firemen were required to maintain residence in the municipality wherein they were respectively employed. In the opinion of the court written by Circuit Judge Adams it was stated (338 F.Supp. at p. 498): ‘That the State of New Jersey, by attempting to enforce the residency requirement, would be penalizing the right to travel to a substantial degree is also clear. . . . We find, therefore, that the impact of the challenged statute implicates sharply enough the right to travel to require our application of the compelling state interest test. (See Shapiro v. Thompson, supra, 394 U.S. at 629, 634, 638, 89 S.Ct. 1322; Cole v. Housing Auth., supra, 435 F.2d 807 at 809–811.)’

While in Krzewinski the court found that the residency requirement was valid with respect to policemen and firemen because of the distinctive nature of their respective duties and of their particular relationship to the inhabitants of the municipality, portions of the opinion offer guidance in the resolution of the question presently before this court. Thus, in Krzewinski Circuit Judge Adams stated (338 F.Supp. at p. 498): ‘Certain interests, not seriously asserted here, such as the ‘public coffer’ theory and the right-privilege dichotomy have been offered in the past to justify a residency requirement for public servants which over the years have lost not only their compelling nature, but also their constitutionality.' In footnote 4 the statement just quoted was expanded as follows (338 F.Supp. at pp. 498–499): ‘The ‘public coffer’ theory states that the salaries paid to civil servants ought to recirculate within the economy of the municipality that pays those salaries. In this way, municipal funds are preserved for a municipality's own residents. But this theory, as best expressed in People v. Crane, 214 N.Y. 154, 108 N.E. 427, aff'd sub nom. Crane v. New York, 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 (1951), was sharply rejected by the Supreme Court in Shapiro v. Thompson, supra. Municipalities may not tie economic benefits in with contributions made to the municipal economy. Id. at 632–633, 89 S.Ct. 1322. The public coffer doctrine is merely a natural outgrowth of the once held belief that public employment is not a right, but a privilege, which the State confers in all its beneficence. . . . Any reliance upon these outdated, and apparently unconstitutional theories is disavowed by this Court. Other courts have likewise read Shapiro to command such disavowal. Leger v. Sailer, 321 F.Supp. 250 (E.D.Pa. 1970) aff'd sub nom. Graham v. Richardson. supra [(1971) 403 U.S. 365, 91 S.Ct. 1848, 20 L.Ed.2d 534]; Donnelly v. City of Manchester, 111 N.H. 50, 274 A.2d 789 (1971).'

In Donnelly v. City of Manchester (1971), 111 N.H. 50, 274 A.2d 789, the plaintiff, employed as a school teacher by the defendant city, sought a declaratory judgment as to the validity of an ordinance of the city which required that all classified employees of the city, including school teachers, be or become residents of the city within twelve months of their employment unless granted a special permit for certain specified reasons. The Supreme Court of New Hampshire held that the ordinance embodied an unconstitutional exercise of governmental power and was to that extent invalid.

In the course of its reasoning the New Hampshire court stated (274 A.2d at pp. 791–792): ‘The right of every citizen to live where he chooses and to travel freely not only within the state but across its borders is a fundamental right which is guaranteed both by our own and the Federal Constitutions. Ratti v. Hinsdale Raceway, Inc., 109 N.H. 270, 249 A.2d 859 (1969); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). It is fundamental also that both Constitutions guarantee to all persons the equal protection of the laws, (State v. Pennoyer, 65 N.H. 113, 18 A. 878 (1889)) so that ‘all persons should be equally entitled to pursue their happiness * * *.’ Id. at 115, 18 A. at 880. [¶] There is no question but that the Manchester ordinance places a restriction on a fundamental right of its employees to live where they wish. This being so the ordinance can be upheld only if the requirement that the employees live within the city serves a public interest which is important enough to justify the restriction on the private right. There is nothing in the record before us nor have any reasons been advanced which would justify the broad restrictions of this ordinance. We do not say that there are no employees whose residence near their place of duty may not be important enough to justify a restriction upon their place of residence but if such restrictions are permissible as to some this does not justify the broad and all inclusive requirement that all employees live within the city limits. Nothing has been brought to our attention in the record in this case which would justify the application of the restriction to schoolteachers. . . . [¶] It is true, as contended by the defendant, that there is no constitutional right to work for the city, but this does not mean than the granting of this privilege may be conditioned upon a surrender of a fundamental constitutional right. The old right-privilege distinction is no longer valid, (Shapiro v. Thompson, supra note 6; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and discrimination against some in public employment can no longer be practiced on the basis that the employment is a privilege which can be withheld from all. Ratti v. Hinsdale Raceway supra (dissenting opinion); Purdy & Fitzpatrick v. State, 71 Cal.2d 566, 79 Cal.Rptr. 77, 456 P.2d 645 (1969). [¶] It has been argued that those who are employed by the city should help support the cost of their employment by contributing to the economy of the city and to its tax base. But employees of the city earn their salaries, and any governmental interest in compelling them to be residents for whatever financial benefit there may be to the city from such residence is slight compared to the important interference with their private rights.'

It is true that some courts have held residency requirements for public employees to be valid. Thus, in Marabuto v. Town of Emeryville, 183 Cal.App.2d 406, 6 Cal.Rptr. 690, such a requirement was upheld as to policemen and firemen, the court stating at page 410, 6 Cal.Rptr. at page 692: ‘Appellants argue that residence can not be a qualification because it has ‘no reasonable relation to the ability of an employee to perform the duties . . .’ Emeryville has small forces of firemen and police to cope with the hazards due to its concentrated industrial activities. The fire and police chiefs testified that, in emergencies, firemen and policemen could not be relied on for quick response when living at greater distances from the city, and it is a matter of common knowledge that in such emergencies even a short delay may be fatal. Residence has generally been treated as a qualification.' As held in Krzewinski v. Kugler, supra, 338 F.Supp. 492, ordinarily the nature of the duties of policemen and firemen is substantially distinguishable from that of the duties of other city employees and affords a valid basis for a requirement of residence. In the case presently before this court, the question as to the validity of the pertinent provision of the city charter of Torrance as applied to policemen and firemen is not presented and no determination is made with respect to that matter.

It is to be further noted that earlier cases which upheld residency requirements imposed upon city employees did not consider the matter in the light of the strict standard now prescribed by the United States Supreme Court for the review of an enactment which limits a fundamental right. (See Purdy & Fitzpatrick v. State of California, supra, 71 Cal.2d 566, 578–579, 79 Cal.Rptr. 77, 456 P.2d 645.) Thus, no determination was made as to whether the municipality had sustained the burden of establishing not only that it had a compelling interest which justified the enactment but that the distinctions drawn by the enactment were necessary to further its purpose.

In the case presently before this court the appellant was employed by the city in the capacity of a librarian. Under the governing standard no justification has been shown for an impingement upon his right of freedom to travel beyond the boundaries of the city for residential purposes.

In view of the determination made as to the constitutional question involved, it is unnecessary to discuss the matter of the legal impact of section 50083 of the Government Code upon the pertinent provision of the charter of the City of Torrance.

The judgment is reversed and the cause is remanded to the superior court for further proceedings not inconsistent with the opinion herein.


1.  Section 50083 of the Government Code provides: ‘No local agency or district shall require that its employees be residents of such local agency or district.’ Section 50001 of that code is as follows: “Local agency' as used in this division means county, city, or city and county, unless the context otherwise requires.'


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Docket No: Civ. 38769.

Decided: October 26, 1972

Court: Court of Appeal, Second District, Division 3, California.

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